Owen v. People , 155 Colo. 19 ( 1964 )

392 P.2d 163 (1964)

Nathan Wendle OWEN, Plaintiff in Error,
v.
The PEOPLE of the State of Colorado, Defendant in Error.

No. 20623.

Supreme Court of Colorado. En Banc.

May 18, 1964.

William L. Rice, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Aurel M. Kelly, Sp. Asst. Atty. Gen., Denver, for defendant in error.

MOORE, Justice.

An information in three counts was filed in the district court of Larimer County against the plaintiff in error, hereinafter referred to as defendant, in which it was alleged that on January 10, 1961, he committed the crimes of statutory rape, incest, and taking indecent liberties with the person of a child under the age of sixteen years. The three charges involve the same child and a single incident. The defendant entered a plea of not guilty, waived a jury trial, was found guilty on all three counts by the court, and was sentenced to terms in the penitentiary which were to run concurrently.

As grounds for reversal of the judgments it is argued, inter alia, that there was no evidence presented upon the trial that any of the crimes alleged to have been committed by the defendant in fact occurred, except the statements and confession of the defendant with regard thereto, and that said statements and confession were not in any particular whatever corroborated by any other evidence admitted upon the trial.

The pertinent time table of events is as follows:

Date of alleged crimes, January 10, 1961.

Date of oral confession, February 2, 1962.

Date of written confession, February 3, 1962.

Information filed, February 6, 1962.

On May 28, 1961, Jerra Lee Owen, the fifteen year old daughter of the defendant, was found dead in her bed in the home of the defendant. She had been raped and beaten. The testimony established the cause of death to be cerebral hemorrhage and shock inflicted by some person who committed the rape. The evidence was that she died at approximately 1:30 A.M., May 28, 1961. The deceased child is the same person named as the victim in the information in this case.

The record before us does not disclose what happened in the way of investigation by the authorities immediately following the discovery of the body of the said child.

In October, 1961, a change in the administration of the local police department took place, and a new investigation of the homicide was undertaken. The defendant submitted to three separate polygraph tests conducted by the Denver police department pursuant to the request of Larimer county investigating officers. During the period of time covered by these tests the defendant was informed by the examiners that they were getting "reactions" which indicated he was not telling the whole truth and that they could not clear him of the murder unless he could explain those reactions. Thereupon the defendant made a statement that on three different occasions he had sexual intercourse with his daughter (the deceased), the last of which took place in January, 1961. The statement first made orally was thereafter reduced to writing and signed by the defendant. The information in this case was thereupon filed and was based entirely upon the statement of the defendant that the last act took place in January, 1961.

No evidence other than the confession was offered to prove that any crime was committed as alleged in the information.

It has long been well established law that an extrajudicial confession without corroboration is not sufficient to sustain a conviction of crime. The most recent pronouncement of this court on this subject will be found in Meredith v. People, 152 Colo. ___, 380 P.2d 227. In that opinion we quoted with approval from Downey v. People, 121 Colo. 307, 215 P.2d 892, the following:

"It is true that a conviction of crime cannot be upheld where it is based upon the uncorroborated confession of the person accused. There must be evidence of the corpus delicti apart from the statements contained in the confession."

Reference to numerous other decisions would unnecessarily lengthen this opinion. In the case at bar the only evidence tending to establish the commission of any crime charged in the information is the confession of the accused. This is not sufficient.

The judgment is reversed and the cause remanded with directions to dismiss the action and discharge the defendant from custody.