McGee v. People

• Decision Date: 02 May 1966
• Docket Number: No. 21542,21542
• Citation: 160 Colo. 46,413 P.2d 901
• Parties: George Earl McGEE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 901

413 P.2d 901

160 Colo. 46

George Earl McGEE, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21542.

Supreme Court of Colorado, In Department.

May 2, 1966.

Thatcher L. Shaw, Grand Junction, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Special Asst. Atty. Gen., for defendant in error.

SUTTON, Chief Justice.

The defendant, George Earl McGee, was charged by information with the crime of statutory rape, in violation of the provisions of C.R.S. '53, 43--2--25. After the appointment of counsel to assist in his defense, McGree entered pleas of not guilty and not guilty by reason of insanity. Defendant submitted to two psychiatric examinations, and thereafter he asked to withdraw his previous pleas and to enter a plea of guilty. The guilty plea was accepted by the trial court. McGee was thereafter sentenced to serve a term of not less than forty nor more than sixty years in the State Penitentiary.

Five months after his sentencing, the defendant filed his motion under Colo.R.Crim. P. 35(b), asserting that the trial court was without jurisdiction to impose the sentence adjudged upon him. He contended that he could not legally have been convicted of rape, since if he was guilty of anything, he was guilty of incest, which crime carries a lesser penalty. At the hearing on this motion, counsel for defendant also filed a motion for a new trial on the ground of newly discovered evidence which motion we, like the trial court, find to be without merit.

Counsel for the parties stipulated that the prosecutrix was the adopted daughter of the defendant. She was, in fact, his stepdaughter. The record clearly shows that acts of sexual intercourse had taken place between the defendant and the prosecutrix from the time the daughter was nine years of age and until she was fifteen; further, that the father was age thirty-nine at the time of the trial and the daughter age fifteen.

The trial court, after a full hearing where defendant was represented by newly appointed counsel, denied both the motion for new trial and the motion to vacate sentence, and reaffirmed the sentence previously entered in the cause. From this decision of the trial court, the defendant prosecutes the present writ of error. His contention now is that (1) he is not guilty; and, (2) in any event that in Colorado a man over the age of eighteen years who cohabits with his adopted daughter under the age of eighteen years, cannot, under our statutes, be charged and convicted of rape.

We have carefully read the record in this case as well as the statutes involved, and find no error in the trial court's original sentence nor in its denial of defendant's motion under 35(b) or his motion for a new trial.

The record shows that defendant, who was represented by competent counsel, changed his pleas of not guilty and not guilty by reason of insanity, knowingly, to one of guilty; that, there was a probation investigation and a full scale hearing at which the adopted daughter testified as to the incestuous relations which she said began after her father had treatened to, and sometimes did, whip her with a belt. The mere fact that the defendant at the hearing on his 35(b) motion denied the charge, is not determinative here. He was convicted on his own plea of guilty and cannot effectively claim at a later date, under the facts presented, that he was innocent.

C.R.S. '53, 40--2--25, under which the defendant was convicted, appears under the heading of 'Offenses Against The Person' as 'Rape.' The applicable parts of this statute read:

'* * * Rape is an act of sexual intercourse, accomplished with, by or between a male and a female person * * *, where such female person is not the wife of the principal perpetrator, as distinguished from accessory to such offense, under any of the following circumstances:

'(1) By the male person where the female person is unmarried, and where the female person is under, and the male person is over the age of eighteen years; and this is rape is the first degree.'

The penalty for 'Rape' is set forth in C.R.S. '53, 40--2--28, which provides that first degree rape is punishable by a sentence of from three years to life in the state penitentiary (with certain exceptions not applicable here).

In addition, C.R.S. '53, 40--2--29 (which concerns rape) states that:

'Nothing in sections 40--2--25 to 40--2--29 shall be held to apply to, or in any manner interfere with, the laws against incest, * * * and other kindred offenses against the person.'

The incest statute (C.R.S. '53, 40--9--6) reads:

'If a father shall rudely and licentiously cohabit with His own daughter, the father, on conviction, shall be punished by confinement in the penitentiary for a term not exceeding twenty years.' (Emphasis supplied.)

We shall...