Warren v. People, 16176

• Decision Date: 19 December 1949
• Docket Number: No. 16176,16176
• Citation: 121 Colo. 118,213 P.2d 381
• Parties: WARREN v. PEOPLE.
• Court: Colorado Supreme Court

Page 381

213 P.2d 381

121 Colo. 118

WARREN v. PEOPLE.

No. 16176.

Supreme Court of Colorado, en Banc.

Dec. 19, 1949.

C. E. Sydner, Las Animas, Wilkie Ham, Lamar, for plaintiff in error.

John W. Metzger, Attorney General, Raymond B. Danks, Assistant Attorney General, for defendant in error.

JACKSON, Justice.

Plaintiff in error seeks a review of a judgment of conviction against him on a charge of taking indecent liberties 'upon and with the person' of a ten year old girl. The jury, in addition to finding him guilty on the indecent liberties count, also under a second count found him guilty of contributing to the delinquency of the child.

After hearing the argument on a motion, and on a subsequent supplemental motion, for a new trial, the court set aside the verdict of guilty on the second count and denied the motion as to the first count. Defendant files sixteen specifications of points and assignments of error which his counsel argue under the following seven headings:

1. It is urged that count one of the information is defective in that it charges more than one offense, and the trial court erred therefore in instructing the jury on such count.

Count one, upon which the conviction is based, reads as follows: 'That Chester Warren, also known as 'Chet' Warren, a male person over the age of fourteen years, late of the County of Bent, and State of Colorado, on or about the 25th day of May in the year of our Lord one thousand nine hundred and Forty-seven at and within the County and State aforesaid did commit a felonious assault and take indecent and improper liberties upon and with the person of one Ethel Faye Drayton, also known as Ethel Faye Kearns, a child under sixteen years of age; that the said Chester Warren, also known as 'Chet' Warren, did entice, allure or persuade said child into a room in the County and State aforesaid for the purpose of taking immodest, immoral and indecent liberties with said child; and that said Chester Warren, also known as 'Chet' Warren, did take or attempt to take such liberties with the person of such child on the date and in the County and State aforesaid, contrary to the form of the Statute in such case made and provided, and against the peace and dignity of the same People of the State of Colorado.'

The foregoing count is based upon section 65, chapter 48, '35 C.S.A., which reads as follows: 'Any person over the age of fourteen years who shall assault any child under sixteen years of age and shall take indecent and improper liberties with the person of such child, or who shall entice, allure or persuade any such child into any room, office or to any other place for the purpose of taking such immodest, immoral and indecent liberties with such child, or who shall take or attempt to take such liberties with the person of such child at any place, shall be deemed a felonious assaulter, and, on conviction thereof, shall be punished, if over eighteen years of age, by confinement in the penitentiary for a term of not more than ten years, and, if under eighteen years of age, may be punished by commitment to the state reformatory or to the state industrial school. [L. '05, p. 181, § 1; R.S. '08, § 1656, C.L., § 6696.]'

One of the grounds for reversal by this court of a judgment of conviction for taking indecent liberties in the case of Kidder v. People, 115 Colo. 72, 169 P.2d 181, was that the one count upon which the jury returned a verdict of guilty was insufficient. The insufficiency there pointed out does not here exist. The count in the instant case is in the words of the statute. The fact that it contains the various elements which this court discussed in the Kidder case, and which might have been set forth separately, does not make it insufficient. Joyce on Indictments (2d Ed.), §§ 558, 560, 561, 566. The principal criticism that could be directed against the count is that it might be considered duplicitous. An attack on this ground, being a matter of form and not affecting the substantial rights of defendant, must be made before the trial, if at all. Critchfield v. People, 91 Colo. 127, 13 P.2d 270. Such was not done in the instant case. It does not appear that the defendant was mislead as to the charge against him. We therefore believe that the trial court's instructions 1 and 3 were proper.

2. It is contended that the trial court erred in submitting both counts of the information to the jury. It will be noted that count two, charging defendant with contributing to juvenile delinquency, is based upon another statute, namely: sections 44, 64, chapter 33, '35 C.S.A. An examination of the record does not show that defendant, at any time during the trial, moved to require the district attorney to elect upon which count he would stand. In Sarno v. People, 74 Colo. 528, 223 P. 41, it was urged that the trial court should, sua sponte, have required the people to elect upon which count they would proceed. We held otherwise. In the instant case the same evidence would be admissible as to each count, and we have held that in such cases no prejudice exists by submitting both to the jury. Smaldone v. People, 102 Colo. 500, 81 P.2d 385. The joinder of both counts in one information appears to be proper. ' 35 C.S.A. c. 48, § 450.

3. It is further argued that the verdicts of guilty as to each count were inconsistent and hence void, and that the trial court erred in setting aside the verdict of guilty on the second count. Counsel for defendant rely upon Hurley v. People, 99 Colo. 510, 63 P.2d 1227, in urging this point. We do not believe that that case is in point. We see no inconsistency between the allegation of indecent liberties and that of contributing to juvenile delinquency. The same evidence could well support both counts. In any event defendant here has been sentenced on but one count. In this connection it is further urged that the court exceeded its jurisdiction in setting aside the verdict of guilty on the second count. The reasons for its doing so do not appear in the record. The effect on defendant's position is to relieve him of the possibility of having to serve two consecutive sentences. We are here concerned solely with the trial court's judgment based upon the conviction of the first count. Short v. People, 27 Colo. 175, 60 P. 350. There is no...