Hammond v. People, 423 P.2d 331 (Colo. 1967). · Go Syfert
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Hammond v. People, 423 P.2d 331 (Colo. 1967). Cases Citing This Book View Copy Cite
12 citation events (6 in the last 25 years) across 2 distinct courts.
Strongest positive: Grey v. State (texcrimapp, 2009-11-18)
Top citers, strongest first. 3 distinct citers.
discussed Cited as authority (rule) Grey v. State (2×)
Tex. Crim. App. · 2009 · confidence medium
See, e.g., United States v. Beckford, 966 F.Supp. 1415, 1433 (E.D.Va.1997) (declining to extend Beck to the crime of murder in furtherance of a continuing criminal enterprise); Geschwendt v. Ryan, 967 F.2d 877, 883-84 (3rd Cir.1992) (declining to extend Beck to require instruction of "not guilty by reason of insanity"). [16] See People v. Barton, 12 Cal.4th 186 , 47 Cal.Rptr.2d 569 , 906 P.2d 531, 541 (1995) ("[D]efendant was prepared to roll the dice in a high stakes game of chance, betting that the jury, faced with the choice of convicting him of murder or acquitting him entirely, would find…
discussed Cited as authority (rule) Grey, Steven Carl
Tex. Crim. App. · 2009 · confidence medium
If the defense and prosecution do not request an instruction on a lesser-included offense, they have waived their rights to complain on appeal that the judge was required to give one.17 And, because this “all or nothing” model is a valid trial strategy, defense counsel is not ineffective for declining to request a lesser-included-offense instruction.18 insanity”). 16 See People v. Barton, 906 P.2d 531, 541 (Cal. 1995) (“[D]efendant was prepared to roll the dice in a high stakes game of chance, betting that the jury, faced with the choice of convicting him of murder or acquitting him en…
discussed Cited as authority (rule) Grey, Steven Carl
Tex. Crim. App. · 2009 · confidence medium
See People v. Barton , 906 P.2d 531, 541 (Cal. 1995) ("[D]efendant was prepared to roll the dice in a high stakes game of chance, betting that the jury, faced with the choice of convicting him of murder or acquitting him entirely, would find him not guilty."); State v. Eastman , 831 P.2d 555, 560 (Idaho 1992) ("a defendant might choose to forego an opportunity to be convicted of a lesser included offense in order to roll the dice in the hope that the jury might acquit him/her on the greater charge"); State v. Boeglin , 731 P.2d 943, 948 (N.M. 1987) (stating that the "defendant is bound by his …
Robert Hammond
v.
the People of the State of Colorado
22034.
Supreme Court of Colorado.
Feb 6, 1967.
423 P.2d 331
Terrance L. Farina, for plaintiff in error., Duke W. Dunbar, Attorney General, Frank E. Hickey, Deputy, James W. Creamer, Jr., Assistant, for defendant in error.
Per Curiam.
Cited by 7 opinions  |  Published
Per Curiam.

Robert Hammond, defendant in the trial court, was charged under C.R.S. ’53, 40-2-25 with what is commonly referred to as statutory rape, and, under C.R.S. ’53, 40-2-34, with assault to commit rape. Following trial, he was convicted by a jury of the first charge and on April 7, 1965, was sentenced to a term of 12 to 30 years in the penitentiary.

The People’s evidence was that Hammond had threatened the prosecutrix with a shotgun and with a knife and had chased her both on foot and in his car prior to the rape. The victim testified to actual forced intercourse. The defendant, however, denied such testimony and asserted that the intimacy did not go that far. At the close of the evidence, the court ruled that the assault to commit rape charge should be stricken because “the only question being as to whether or not there was in fact sexual intercourse amounting to statutory rape.” The jury, as a result, was not instructed on the issue of assault to commit rape. Hammond, at that time, neither objected to striking the charge nor did he request an instruction to the jury on the question of assault to commit rape. His motion for a new trial, however, asserted as error that:

(1) The evidence was insufficient to prove defendant guilty of the first count beyond a reasonable doubt;

[*534] (2) That it was error to withdraw the second count from the jury; and,

(3) That it was error to sustain an objection to a certain question that is not material here.

Defendant now asserts as error the failure of the court to instruct the jury on assault to commit rape.

We find no merit in any of Hammond’s asserted errors. His theory of the case at the trial was that neither an assault to commit rape nor an actual rape occurred. He, in effect, gambled on all or nothing and lost and cannot now be heard to complain.

This was a case of disputed evidence. Here all the evidence admitted was proper to prove the rape. The fact is the jury believed the prosecutrix and not the defendant.

The judgment is affirmed.

Mr. Chief Justice Moore, Mr. Justice Sutton, Mr. Justice Day, and Mr. Justice Kelley concur.