Sarno v. People

Citation74 Colo. 528,223 P. 41
Decision Date04 February 1924
Docket Number10593.
CourtSupreme Court of Colorado

Department 3.

Error to District Court, City and County of Denver; H. E. Munson Judge.

James Sarno was convicted of rape and crime against nature, and he brings error.


W. E. Foley and T. E. McIntyre, both of Denver for plaintiff in error.

Russell W. Fleming, Atty. Gen., and Harold Clark, Thompson, Asst Atty. Gen., for the People.


Plaintiff in error, hereinafter called defendant, was convicted on both counts of an information, one charging rape, and the other the crime against nature.

The information, in the first count, charged defendant with an assault on, and with having carnal knowledge of, one Mrs. Thomas, forcibly and against her will; she not being the wife of the accused. The second count charged him with committing the crime against nature on the same woman. One Longo was charged jointly with the plaintiff in error in both counts. Sarno was found guilty on both counts, and brings error.

It is contended that the first count is invalid because, it is said, it follows section 1648, R. S. 1908, for which chapter 165 of the Laws of 1907 has been substituted. In C. L. 1921, the first-mentioned statute is omitted; the compilers apparently considering the section repealed. As the latter statute covers the whole subject, it may well be that section 1648 is no longer in force. That, however, does not render the count invalid. The third paragraph of section 1 and section 2 of the act define rape in the first degree, and this first count includes every element of the crime as there specified. It is not necessary to follow the exact language of the statute. It is sufficient that the offense be charged in language from which the nature of it may be readily understood by the accused and the jury. Tracy v. People, 65 Colo. 226, 176 P. 280.

It is next ruged that there was error in joining the two counts in one information, and in including both Sarno and Longo in the same counts. As to the latter objection, it is sufficient to say that the record shows no objection, made at the trial, on that ground.

Upon the first point counsel insist that the court should, sua sponte, have ordered the state to elect upon which count it would proceed. No case is cited to this effect, and it has frequently been held that a motion to compel an election is directed to the discretion of the court. Roberts v. People, 11 Colo. 213, 17 P. 637.

It does not appear that such motion was made in this case. The joinder of the two counts is attacked, and many cases cited against the practice. They are, however, cases where offenses of different clases, or committed at different times and places, were charged in one indictment.

The situation here is quite different, and comes under the provisions of section 7065, C. L. 1921, which authorizes the joining, in separate counts, in one information of several charges against a person for acts connected together, or where the offenses are of the same class. Doubtless under this statute, as at common law, the...

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25 cases
  • Kolkman v. People, 12651.
    • United States
    • Colorado Supreme Court of Colorado
    • May 11, 1931
    ...evidence, no error is committed in denying a motion for a severance. Stone v. People, 71 Colo. 162, 167, 204 P. 897; Sarno v. People, 74 Colo. 528, 531, 223 P. 41. We have also held that the motion for a severance, or the affidavit supporting the same, must set forth the incompetent and pre......
  • Stahl v. Cooper, 15909.
    • United States
    • Colorado Supreme Court of Colorado
    • January 12, 1948
    ...See, Dillulo v. People, 56 Colo. 339, 341, 138 P. 33; Modern Woodmen v. White, 70 Colo. 207, 199 P. 965, 17 A.L.R. 393; Sarno v. People, 74 Colo. 528, 223 P. 41; Koontz v. People, 82 Colo. 589, 263 P. 19. (2) That it was taken word for word from Publix Cab Co. v. Phillips, 98 Colo. 542, 546......
  • Winbern v. People, 15663.
    • United States
    • Colorado Supreme Court of Colorado
    • March 31, 1947
    ...court may have opportunity to pass upon the particular objection urged.' Dillulo v. People, 56 Colo. 339, 341, 138 P. 33; Sarno v. People, 74 Colo. 528, 223 P. 41; Blanchard v. People, 74 Colo. 431, 222 P. 649; Koontz v. People, 82 Colo. 589, 263 P. 19; Grandbouche v. People, 104 Colo. 175,......
  • State v. Sellers, 254
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • May 8, 1968
    ...for the same offense. Johnson v. People, 110 Colo. 283, 133 P.2d 789; People v. Warner, 112 Colo. 565, 151 P.2d 975. 'In Sarno v. People, 74 Colo. 528, 223 P. 41, it was held that the information need not charge in the exact language of the statute; that the information is sufficient if the......
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