People v. Yoshio Futamata, 19099

Citation140 Colo. 233,343 P.2d 1058
Decision Date14 September 1959
Docket NumberNo. 19099,19099
PartiesPEOPLE of the State of Colorado, Plaintiff in Error, v. Robert YOSHIO FUTAMATA, Defendant in Error.
CourtSupreme Court of Colorado

Duke W. Dunbar, Atty. Gen., John W. Patterson, Asst. Atty. Gen., Matt J. Kikel, Dist. Atty., Tenth Judicial District, Pueblo, for plaintiff in error.

No appearance for defendant in error.

DOYLE, Justice.

The defendant in error was the defendant in the trial court in a criminal case in which the charge was rape. Count 1 alleged that the crime was committed by force and violence, whereas Count 2 charged that the defendant had committed the offense by threatening bodily harm to the victim. Trial was to a jury and the verdict was not guilty. The People of the State of Colorado seek review of certain legal questions pursuant to C.R.S.1953, 39-7-27. They contend that the trial court erred in (1) giving of particular instructions, (2) its rulings on the admission of certain evidence, (3) in its refusal to submit to the jury a verdict of assault to commit rape.

On the night of February 17, 1958, defendant went to the home of the victim and from a distance watched her go out of her home to an outhouse in the rear. When she emerged from this building he was lurking nearby and struck her on the head with something very heavy and hard (which he later confessed was a large rock), knocked her down and then struck repeated blows on her head, dragged her to an automobile which was parked in the street, pushed her into the back seat and drove to City Park in Pueblo. He then said to her, 'We still have to go and get it over with.' He ordered her to take off her clothes, pushed her back against the seat of the automobile and, in her words, 'raped' her. The victim admitted that she removed her clothing and submitted to defendant's advances, but explained that this was due to her weakened condition and her fear that if she refused to do so defendant would kill her. She also agreed to see him on a subsequent occasion if he would take her to the houspital. He complied with this latter request and drove her to the St. Mary-Corwin Hospital in Pueblo and waited while she went in for treatment. Immediately following her entry into the hospital she complained to the attendants, who called the police. Her complaint was repeated to the police and they arrested defendant as he was backing his automobile from the hospital parking lot. The arresting officer took him to the emergency room of the hospital where he was identified by the victim and he, at that time, admitted that he had brought her to the hospital. Subsequently defendant signed a written statement in which he generally corroborated the testimony of the victim, and showed members of the police department the route he had taken on the night of the alleged offense.

Examination of the victim by her physician revealed that she had a black eye, several face lacerations, a bump on her head which required sutures, a laceration of the left ear and other injuries. A vaginal test disclosed the presence of spermatozoa.

There had been no previous acquaintanceship between defendant and the victim. He was shown to have been employed as a judo instructor at the Y. M. C. A. and to have seen the prosecuting witness there where she worked as a clerk.

The People request review of the following:

1. The refusal of the trial court to allow the District Attorney to discredit character witnesses on behalf of the defendant by inquiring whether they had heard of specific other sex offenses attributed to the defendant.

2. The trial court's instruction on the subject of force as an element in the offense charged, which instruction is said to be misleading in that it contains misleading language on the element of actual force as an essential element of the offense, and fails to adequately instruct on threats and fear or apprehension as a substitute for force.

3. The court's refusal to submit a verdict and appropriate instructions on the charge of assault with intent to commit rape on the ground that the offense had not been specifically charged.

1. The question whether the court erred in refusing to allow the District Attorney to ask character witnesses whether they had heard of other sex offenses allegedly committed by defendant.

The District Attorney made an offer of proof in which he proposed to cross-examine character witnesses as to whether they had heard that defendant had phoned other women and conducted intimate and insulting phone conversations with them. The offer was rejected. The People predicate their assignment that the refusal to receive this evidence was erroneous on Brindisi v. People, 76 Colo. 244, 230 P. 797. This case held that when a witness has testified to the good reputation of defendant it is proper for him to be cross-examined as to whether he has heard that the defendant has committed other specific unlawful acts. The Court there points out the necessity for such cross-examination but also the necessity for strict supervision by the trial court.

This entire subject is also considered in an extensive note in 47 A.L.R.2d 1258, 1280, where it is said in part that:

'* * * trial courts are clothed with a broad discretion in respect to permitting the cross-examination of the defendant's character witnesses as to rumors or reports of particular acts or offenses.'

One of the cases commented on in 47 A.L.R.2d suggests that the trial court should conduct a preliminary inquiry out of the presence of the jury so as to insure (a) that the alleged misconduct is actual; (b) that it is reasonably likely that it was the subject of the rumor in the community; (c) that it is not too remote and that it was of the same character as the act on trial. The trial judge should also, according to the cases, see to it that the question is properly formed, that is, 'Have you heard?' and that the jury is instructed at the time as to the limited purpose of the inquiry. See State v. Steensen, 35 N.J.Super. 103, 113 A.2d 203.

In the case at bar the District Attorney, with commendable fairness, requested a hearing out of the presence of the jury. While his good faith cannot be questioned, it is possible that the trial judge applied the salutary criteria set forth in State v. Steensen, supra, and concluded that one or more of these were not satisfied. In view of the control that the trial judge was justified in maintaining we cannot say that its ruling on this point was erroneous.

2. The alleged error based upon the giving and refusal of instructions with respect to the element of force.

It is urged that the trial court erred in giving Instruction No. 15 and in its refusal to give People's Tendered Instruction No. 1. These read as follows:

'Instruction No. 15: The Court instructs the Jury that no rape is committed unless the sexual intercourse is accomplished by force and is without the consent and against the will of the female. If the female voluntarily consents to the act, no matter how tardily or reluctantly, the act does not constitute rape. It must appear, in order to constitute rape, that the female resisted to the best of her ability, and persisted in such resistance until her will was overcome by force, or by such fear or fright as prevented any further resistance. The amount of resistance possible must depend upon the surrounding circumstances, the regular strength of the parties, and the state of mind of the female.

'Mere objections in words, or such objections coupled with some resistance are normally not sufficient to make the act of the accused constitute rape. It must appear that the female did not consent to the intercourse at all, that she made all the resistance reasonably within her power, and that her will was, or had previously been overcome by the actions and threats of the defendant to the extent that it put her in such fear and terror that she could not or dared not resist further.

'Consent of the woman from fear of personal violence is void. Even though a man lays no hands on a woman, yet if by an array of physical force he so overpowers her mind that she dares not resist, or she ceases resistance through fear of great harm, the consummation of unlawful intercourse by the man is rape.

'People's Tendered Instruction No. 1: The Court instructs the jury that the term 'by force' does not necessarily imply the positive exertion of actual physical force in the act of compelling submission of the female; but force or violence threatened as a result of non-compliance and for the purpose of preventing resistance, or extorting consent, if it be such as to create a real apprehension of dangerous consequences, or great bodily harm, or such a recent physical attack upon the female, which would creat (sic) a real apprehension of dangerous consequences or be such as in any manner to overpower the mind of the victim so that she dare not resist, is, and upon all sound principles must be regarded, for this purpose, as in all respects equivalent to force actually exerted for the same purpose.'

No evidence was adduced at the trial in support of the premise that the alleged unlawful sexual intercourse was accompanied by actual force and violence and it is questionable whether a verdict based on actual force should have been submitted. The undisputed testimony was that the victim submitted to the act because of fear which in turn was based on the vicious and aggravated assault and battery which preceded the act itself. In these circumstances it follows that an instruction which advised the jury that 'no rape is committed unless the sexual intercourse is accomplished by force and is without the consent of the female' could only serve to confuse the jury. The confusion is not entirely eliminated by the further seemingly contradictory advice that 'consent of the woman from fear of personal violence is void.' and by the additional admonition that 'It must appear that the female did not...

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