Mitchell v. People

• Decision Date: 21 March 1898
• Citation: 24 Colo. 532,52 P. 671
• Parties: MITCHELL v. PEOPLE.
• Court: Colorado Supreme Court

52 P. 671

24 Colo. 532

MITCHELL v. PEOPLE.

Supreme Court of Colorado

March 21, 1898

Error to district court, Pueblo county.

W. O Mitchell, plaintiff in error, was convicted on an indictment charging that he 'on the 8th day of May, A. D. 1897, at the county of Pueblo, state of Colorado, did then and there being * * * a male person of the age of fourteen years and upward, upon the person of one Jennie Hiney, * * * a female person under the age of eighteen years, to wit, of the age of sixteen years, feloniously make an assault, * * * and her the said Jennie Hiney, did then and there feloniously and forcibly ravish and carnally know, contrary to the form of statute,' etc. Motion for a new trial was overruled, and he was sentenced to confinement at hard labor in the penitentiary for the term of 14 years. To reverse this sentence, he brings the case here on error. Affirmed.

James H. Mechem and Wallace B. McNeel, for plaintiff in error.

Byron L. Carr, Atty. Gen., Calvin E. Reed, Asst. Atty. Gen., and George H. Thorne, for the People.

GODDARD J.

The record discloses that the only evidence introduced upon the trial was on the part of the people, and consisted of that of Jennie Hiney, the prosecuting witness, that of her mother and two physicians, together with certain exhibits. From this evidence it appears that Mitchell, the plaintiff in error, had lived for eight years with Mrs. Flora D. Hiney, who was separated from her husband, and was the mother of four children, the eldest being Jennie, who was 16 years of age at the time of the trial; and that on two occasions during the preceding summer, while riding in a buggy, near Fountain Bridge, in Pueblo county, he had sexual intercourse with Jennie, who was then 15 years of age, and also on two other occasions during the month of May or June of that year, at the house of Mrs. Hiney, in the city of Pueblo.

The principal error relied upon for a reversal is that there was no direct evidence to show that Mitchell was over 14 years of age, it being insisted that it was incumbent upon the people to establish this fact by sworn testimony, in order to sustain a conviction under the statute. This objection is not well taken. It is not necessary, in an indictment for rape to allege, nor incumbent upon the state to prove, the age of the defendant. In Com. v. Scannel, 11 Cush. 548, the question of the necessity of averring the age of the defendant in an indictment for rape was presented, and the court say: 'It is not necessary, in an indictment for rape, to allege that the defendant is fourteen years of age. It might as well be contended that in all other cases the indictment must allege that the party charged was above the age of seven years. The incapacity of a party, by reason of his tender years, to commit the crime charged upon him, may be a good defense on the trial, as it may negative effectually the charge; but this capacity is not required to be stated in...