
    No. 20624.
    Nathan Wendle Owen v. The People of the State of Colorado.
    (392 P.2d 164)
    Decided May 18, 1964.
    
      Mr. William L. Rice, for plaintiff in error.
    Mr. Duke W. Dunbar, Attorney General, Mr. Frank E. Hickey, Deputy, Mrs. Aurel M. Kelly, Special Assistant, for defendant in error.
    
      En Banc.
    
   Mr. Justice Moore

delivered the opinion of the Court.

On the 5th day of April, 1962, an information was filed in the district court of Larimer County in which it was alleged that on May 27, 1961, the plaintiff in error (hereinafter referred to as the defendant) “ * * * did feloniously and unlawfully assault a child, namely, Jerra Lee Owen, who was then and there under the age of 16 years, and did then and there feloniously and unlawfully take indecent and improper liberties with the person of such child * * *.” He entered a plea of not guilty, waived a trial by jury, and after trial to the court was found guilty as charged. He was sentenced to a term of not less than six years and not more than ten years’ imprisonment in the state penitentiary. The sentence was to run concurrently with those imposed upon him in cause No. 20623 in this Court. The opinion of this Court in that action is announced simultaneously herewith.

The full factual situation as developed at the trial in the instant case is identical with that presented in cause No. 20623. In the instant case there is no evidence whatever tending to establish the crime charged against the defendant except his statement to the effect that he “ * * * attempted to have sexual relations with my daughter, Jerra Lee * * * on May 27, 1961, about 5:00 P.M. in the upstairs of the barn in the back part of the lot of our place.” He stated that she “suddenly pulled away” when she heard her mother, who was in the back yard calling for her. No act of intercourse took place because of this interruption.

This statement was made by defendant at the same time as those discussed in the other case (No. 20623 in this Court) and the attendant circumstances were exactly the same as those set forth in detail in our opinion in that action.

For the reasons set forth therein this judgment must be and is hereby reversed and the cause remanded with directions to dismiss the action and discharge the defendant from custody.  