Summary
In Boegel v. People, 95 Colo. 319, 35 P.2d 855 (1934), the defendant was prosecuted for statutory rape, and the additional instruction was given after the jury had been deliberating twenty-three hours.
Summary of this case from Mogan v. PeopleOpinion
No. 13,419.
Decided July 23, 1934.
Plaintiff in error was convicted of statutory rape.
Affirmed.
1. CRIMINAL LAW — Appeal and Error — Sufficiency of Evidence. Evidence in a trial for rape held amply sufficient to sustain a judgment of conviction.
2. Rape — Evidence. In a prosecution for rape, defendant has the right to introduce evidence showing or tending to show that a child born to the prosecuting witness was begotten by some person other than himself.
3. Appeal and Error — Sufficiency of Evidence. In a criminal prosecution the jury is the judge of the credibility of witnesses and of the weight to be given to their testimony. A verdict of guilty based upon conflicting evidence, and which has the approval of the trial court, will not be disturbed on review.
4. Trial — Court Remarks to Jury. Where a jury in a criminal case has been unable to agree, there is no error by reason of remarks of the trial judge suggesting that they agree upon a verdict if they can do so conscientiously, there being no intimation of the court's opinion as to the guilt or innocence of the defendant.
Error to the District Court of Douglas County, Hon. Arthur Cornforth, Judge.
Messrs. STRACHAN HORN, for plaintiff in error.
Mr. PAUL P. PROSSER, Attorney General, Mr. CHARLES H. QUEARY, Assistant, for the people.
THE plaintiff in error, Percy Boegel, was charged with the statutory rape of a girl 11 years of age. He was convicted and was sentenced to imprisonment in the penitentiary. He seeks a reversal of the sentence.
1. Counsel for Boegel contend that the evidence is not sufficient to support the conviction. We do not agree with counsel. The evidence, in our opinion, was ample.
[2, 3] That someone had sexual intercourse with the girl is evident from the fact that she gave birth to a child. The girl testified that Boegel was the man, and she detailed the circumstances. Boegel testified that he did not have sexual intercourse with the girl. Boegel had a right to introduce evidence showing or tending to show that the child was begotten by some person other than himself. O'Chiato v. People, 73 Colo. 192, 214 Pac. 404. He offered no evidence showing or tending to show that any other person had sexual intercourse with the girl. That circumstance, together with all the other circumstances, was for the consideration of the jury. The jury saw the girl, observed her demeanor and appearance on the witness stand; they heard her testimony and believed it. They saw Boegel, observed his demeanor and appearance on the witness stand; they heard his testimony and disbelieved it. The jury were the judges of the credibility of the witnesses and of the weight to be given to the testimony of each witness. They found Boegel guilty, and the trial court, by denying the motion for a new trial, approved the verdict. In the circumstances, we cannot interfere with that verdict. Bowen v. People, 87 Colo. 38, 284 Pac. 779.
2. Counsel for Boegel complain of certain remarks of the trial court to the jury, made after the jury had failed to agree after being out about twenty-three hours. The remarks were the same as those held unobjectionable in Sevilla v. People, 65 Colo. 437, 177 Pac. 135, and Bowen v. People, supra. The trial court gave no intimation of the court's opinion as to the guilt or innocence of Boegel, but merely suggested that the jurors agree upon a verdict if they could do so conscientiously. We adhere to our holding in the Sevilla and Bowen cases, supra.
The assignments of error are without merit.
The judgment is affirmed.
MR. JUSTICE CAMPBELL and MR. JUSTICE HOLLAND did not participate.