Miera v. People, 22378

Decision Date27 November 1967
Docket NumberNo. 22378,22378
Citation164 Colo. 254,434 P.2d 122
PartiesAlbert MIERA and Milton Duran, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error.
CourtColorado Supreme Court

Carlos F. Lucero, Alamosa, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., Denver, for defendants in error.

HODGES, Justice.

The plaintiffs in error, Albert Miera and Milton Duran, were charged with forcible rape. By jury verdict, they were found not guilty of forcible rape, but were found guilty of the lesser included offense of assault with intent to commit rape. Judgments were entered against both defendants and they were each sentenced to penitentiary terms of not less than two nor more than three years.

By their writ of error, Miera and Duran present several grounds which they claim require reversal of their convictions. However, we deem it unnecessary to consider in detail these claimed errors because in our view the evidence fails to support the verdict of guilty to the lesser included crime of assault with intent to commit rape. Our review of the record leads us to the conclusion that when the jury found the defendants not guilty of forcible rape, as defined in C.R.S.1963, 40--2--25(1)(a)(d), there remained no basis in the evidence for the jury to find the defendants guilty of assault with intent to commit rape.

We are not unmindful of People v. Yoshio Futamata, 140 Colo. 233, 343 P.2d 1058 involving a not guilty verdict of forcible rape, wherein it was held that, under the evidence of that case, it was improper for the trial court to refuse to submit a verdict and instruction on the lesser included offense of assault with intent to commit rape. This case stands for the proposition that it is the character of the evidence which must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of forcible rape. In Futamata this court stated:

'It does not follow from the conclusion that the aggravated assault need not be specifically pleaded that the court is invariably required to submit the lesser included crime to the jury. There remains the question whether the evidence justifies this action. Oftentimes the evidence precludes submission even when the offense is charged in a separate count and in some cases the evidence is such that the jury must determine the case on the...

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2 cases
  • People v. Rivera
    • United States
    • Supreme Court of Colorado
    • 6 Agosto 1974
    ...at trial, establishes the elements of the lesser offense. Van Pelt v. People, 173 Colo. 201, 476 P.2d 999 (1970); Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967); Cf. Howard v. People, 173 Colo. 209, 477 P.2d 378 (1970). From these cases, the defendant's argument on appeal is that where......
  • Lucero v. People
    • United States
    • Supreme Court of Colorado
    • 27 Noviembre 1967
3 books & journal articles
  • ARTICLE 3
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (2022 ed.) (CBA) Title 18 Criminal Code
    • Invalid date
    ...and in some cases the evidence is such that the jury must determine the case on the greater offense and that alone. Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967). Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault ......
  • ARTICLE 3 OFFENSES AGAINST THE PERSON
    • United States
    • Colorado Bar Association C.R.S. on Family and Juvenile Law (CBA) Title 18 Criminal Code
    • Invalid date
    ...and in some cases the evidence is such that the jury must determine the case on the greater offense and that alone. Miera v. People, 164 Colo. 254, 434 P.2d 122 (1967). Where the trial judge submitted to the jury not only the offense of assault with a deadly weapon, but also simple assault ......
  • Lesser Included and Nonincluded Offenses and Jury Instructions
    • United States
    • Colorado Bar Association Colorado Lawyer No. 25-6, June 1996
    • Invalid date
    ...P.2d 1298 (Colo. 1971); Schott v. People, 482 P.2d 101 (Colo. 1971). 2. Van Pelt v. People, 476 P.2d 999 (Colo. 1970); Miera v. People, 434 P.2d 122 (Colo. 1967). 3. Supra, note 1. 4. Id. at 433-34. 5. Id. at 434. 6. Crim.P. 31(c), "Conviction of Lesser Offenses." 7. See also People v. Staf......

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