Wortman v. People

• Decision Date: 20 June 1898
• Citation: 53 P. 1053,25 Colo. 270
• Parties: WORTMAN v. PEOPLE.
• Court: Colorado Supreme Court

53 P. 1053

25 Colo. 270

WORTMAN v. PEOPLE.

Supreme Court of Colorado

June 20, 1898

Error to district court, Lake county.

George C. Wortman was convicted of the crime of rape. He brings error. Reversed.

N. Rollins and Wells, Taylor & Taylor, for plaintiff in error.

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

CAMPBELL C.J.

The defendant was tried, convicted, and sentenced for the crime of rape. To the judgment he sues out this writ of error, and assigns numerous errors of the district, court. In our view the consideration of but one of them is necessary, for our conclusion upon it results in a reversal of the judgment. A summary of the testimony will conduce to a better understanding of the legal questions involved.

The defendant was the manager of a mining company at Alacante Lake county, Colo., several miles distant from Leadville. Preliminary to starting up work on the mine, in the latter part of the year 1896, he came to Denver, for the purpose of engaging a cook for the boarding house where the employés took their meals. He went to an employment agency, and made known his wishes; and, while there, the prosecuting witness came in, her errand being to secure employment. She was then 36 years of age, had been married, but was divorced from her husband. She overheard the application of the defendant, and when he left the room, stated to the agent what her object was, and by the latter was advised to drop a note to defendant making known her wishes. This she did, and, in response thereto, the defendant called at her rooms, and a day or two thereafter made a second call, at which time, in the presence of her brother-in-law, he employed her as a cook. Additional help was wanted by the defendant, and he told the prosecuting witness, if a certain other woman whom the employment agent recommended was satisfactory, to arrange to bring her to the mine. Because the person designated was not satisfactory, or for some other reason, the prosecuting witness did not choose to have her as a companion; and so the defendant and the prosecuting witness together went to Alacante, where they arrived on the morning of the 30th of December. The prosecuting witness testifies that, from something that occurred on the journey, she became suspicious of defendant, and claims that she supposed her destination was to be Leadville, whereas Alacante was several miles away. She also testifies that, when they arrived at the mine, she suspected a trap had been laid by Mr. Wortman to get her there; and she so told him, and asked to be sent back immediately. This he refused to do. At the mine was an employé, Mackey, who was a guard at the shaft house where he slept. On the property were also a boarding house and a lodging house, which is called in the testimony the 'bunk house.' From December 30th to January 5th the only occupants of the bunk house were the defendant and the prosecuting witness, Mr. Mackey coming to the boarding house at meal times, when he did the cooking; but during the rest of the day, and at night, the sole occupants were the defendant and the prosecuting witness. In the winter nights they were accustomed to sit in the sitting room, and read by the light of a candle. On the night of the 5th of January, they were thus engaged, when the candle went out; and then she says that defendant snatched her in his arms, and, as she was looking for trouble, she fought him all she could. The room was dark, and furniture was piled in it; and, while carrying her in his arms, defendant, in soothing tones, kept saying to her, 'I won't hurt you. I won't hurt you.' Still repeating this language, he then took her to the outside door, a distance of about 10 feet, and then up a stairway, half dragging and half carrying her to her sleeping apartment. In the meantime she says that she was screaming, or rather crying, and struggling with him as well as she could, but was unable to resist him. When her room was reached, he threw her on the bed, and there accomplished his purpose, and then departed. A short time thereafter (probably half an hour), he returned, and a second time accomplished his unlawful act. She says that she told him if he would marry her, and let her go home, she would not have anything further to do with him, but this he refused to do. The substance of the testimony of the prosecuting witness, in addition to the foregoing, is that from January 5th to the 4th of February, when she left, these acts of rape were continued from time to time whenever the defendant got a chance. She testifies, also, that during the month that she remained there, she would sometimes undress herself in her own room, and go to the room occupied by defendant, and pass the night with him; and that sometimes she would first go to the room, and then undress, and occupy the same bed with the defendant, all of which acts she did from fear of his resentment. It appears from the testimony produced by the prosecution that there was a lock to her door, with the key on the inside, and that when the defendant, on the night of the 5th of January, left the room she locked it, and, when he returned, she unlocked the door, and admitted him. The bunk house was about 10 or 15 steps from the railroad track, where daily a passenger and freight train each way passed the house; and at this place there was a section house, where a number of section men and two women were stopping during all this time; and no outcry was raised, and no complaint at any time made, by the prosecuting witness to any person in that vicinity, but she testified that, within a few days after the first rape, she wrote to her sister about what had occurred, and asked for assistance, which did not come.

It will be observed from her testimony that the prosecuting witness says that the defendant accomplished his purpose by means of physical violence, though not specifying its character; but she...