Martinez v. People

• Decision Date: 12 April 1943
• Docket Number: 15273.
• Citation: 111 Colo. 52,137 P.2d 690
• Parties: MARTINEZ v. PEOPLE.
• Court: Colorado Supreme Court

137 P.2d 690

111 Colo. 52

MARTINEZ v. PEOPLE.

No. 15273.

Supreme Court of Colorado, En Banc.

April 12, 1943

Rehearing Denied May 3, 1943.

Error to District Court, City and County of Denver; Stanley H Johnson, Judge.

John Martinez was convicted of attempting to take indecent liberties and feloniously enticing a child of eight years to enter an automobile with the purpose of attempting to take indecent liberties and there attempting to do so and he brings error. On application for supersedeas.

Judgment affirmed.

John F. Mueller, of Denver, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error.

GOUDY Justice.

Plaintiff in error, defendant below, brings this case here by writ of error, seeking to reverse a judgment of the district court of the City and County of Denver by which he was declared to be guilty of criminal offenses as charged in the information. He asks for final determination on his application for supersedeas, and, the people joining in the request, we have elected to comply therewith.

The statute under which defendant was convicted is section 65, chapter 48, '35 C.S.A., which provides: 'Any person over the age of fourteen years who shall assault any child under sixteen years of age and shall take indecent and improper liberties with the person of such child, or who shall entice, allure or persuade any such child into any room, office or to any other place for the purpose of taking such immodest, immoral and indecent liberties with such child, or who shall take or attempt to take such liberties with the person of such child at any place, shall be deemed a felonious assaulter, and, on conviction thereof, shall be punished if over eighteen years of age, by confinement in the penitentiary for a term of not more than ten years, * * *.'

Defendant was charged with three distinct and different offenses: First, taking indecent liberties with the person of a child of the age of eight years; second, attempting to take such liberties; third, feloniously enticing, alluring and persuading said child into a room, office and other place for the purpose of taking such liberties. A jury returned verdicts of guilty as charged on the second and third counts of the information, and judgments in conformity therewith followed. The record is silent in regard to the disposition of the first count, but the matter is discussed in the briefs of counsel for both parties on the premise that the jury acquitted defendant thereon, and for the purpose of this opinion it will be so considered.

The pertinent facts are: Defendant, anadult, engaged in the cement contracting business in Denver for many years, of good repute and character, with no previous criminal charges against him, contracted to repair some sidewalks at the corner of West 33d avenue and Tennyson street, the work being done August 1 and 2, 1941, by a crew of men employed by him, his only function in connection therewith being to visit the job several times a day and oversee its progress.

Three little girls, of the ages of eight to ten years, were involved in the alleged affair with defendant, and their testimony showed that defendant invited them into his automobile, parked across the street from the work, where he exposed his person to them and attempted to touch the private parts of the little girl here involved.

Counsel for defendant, in his argument, states 'that the testimony of the people * * * made out a prima facie case of a completed act of taking indecent liberties with the person of the complaining witness,' as charged in the first count, but, arguing the alleged errors as set out in the specification of points, says that the verdicts of the jury finding defendant guilty of the attempt to take indecent liberties, and of enticing and alluring the child into his automobile for such purpose, were and are contrary to the whole evidence in the case; that if the people's evidence was to be believed, defendant committed a completed act, but by the acquittal of said charge, there is no evidence to sustain his convictions; that under the provisions of section 65, chapter 48, '35 C.S.A., an automobile on a public street does not come within the statutory specification of 'any room, office or to any other place', and his conviction upon the third count is without statutory authority and void; that the court erred in giving to the jury instruction No. 11.

The objection to said instruction will not be considered, for the reason that counsel for defendant having objected to the original instruction, as tendered by the people, it was reframed by the court and, as amended, thereafter given to the jury without objection. Defendant did not question the instruction in his motion for new trial, and it is too late on this review to raise the question for the first time. 16 C.J., p. 1070, §§ 2513, 2514; 23 C.J.S., Criminal Law, §§ 1341, 1342; Dill v. People, 94 Colo. 230, 29 P.2d 1035.

The first count charges a completed offense; the second count an attempt to commit the offense. These two crimes are, of course, distinct, and defendant, obviously, in a legal sense, could not be guilty of both. The crux of defendant's argument is that because he was acquitted of the completed act, he could not be convicted of the attempt; that the evidence, without doubt, shows a completed act, or it shows nothing; that it is the function of this court to review and determine from the evidence as presented by the record, that the act was completed, and that the facts can only be interpreted as so showing; that the verdict of the jury that there had been an attempt only is erroneous. Defendant cites numerous authorities where appellate courts have reviewed the record and have reached a conclusion contrary to that expressed by the verdict of the jury; however, a review of the evidence in the case Before use does not convince us of the correctness of defendant's contention.

There is no question as to the rule of law that if a person is charged with a crime, and if the evidence shows a completed act, an acquittal on the charge will preclude a prosecution for an attempt to commit the act. An attempt, in criminal jurisprudence, generally is accepted as meaning an effort to commit a crime, and a direct, ineffectual act done towards its commission. State v. Thompson, 31 Nev. 209, 101 P. 557; State v. Prince, 75 Utah 205, 284 P. 108; Johnson v. State, 27 Neb. 687, 43 N.W. 425; People v. Anderson, 1 Cal.2d 687, 37 P.2d 67. I...