Berger v. People

No. 16,203. People.

Berger v. (224 228) P. [2d] September 18, Rehearing 1950. Decided 1950. denied November Mr. plaintiff error. Isaac Mellman, Joseph Attorney Mr. General, John W. Metzger, Mr. Deputy, Assistant, Raymond B. Danks, E. Mr. Newman, people. for the En Banc. opinion court. of the Alter delivered the Justice

Mr. charged with murder of Jr. Berger, John J. degree. that offense found him first ac- imposed penalty. sentenced death He was and cordingly, seeking reversal here of error writ judgment.. that, January charged 27,, In information was it. state, City County Denver 1948, in the of. wilfully feloniously, unlawfully, defendant did Colorado, deliberately, premeditated afore- malice and thought, and of his Berger. Josephine and one

kill murder February Upon arraignment 10, defendant 1948, on by guilty plea guilty reason and not entered a of not of insanity On offense, time and now. since at by guilty May plea he his of 10, 1948, withdrew not insanity 21, entered, and on June reason of theretofore only. begun plea It 1948, trial was on his on afternoon was June and 30, 1948, concluded day said verdict. returned its undisputed and de- is that defendant evidence January the' and, married 29, 1940, ceased were on marriage, Robert, issue four children were born. of this years the time seven and one half old at eldest, was moving subsequent Prior and trial. to Denver marriage, near to their resided deceased defendant Brighton, defendant Colorado, June, 1947, on a farm. In penitentiary upon a term in the state was to- sentenced degree appears fourth and it' arson, his conviction of being taken to record at the time he was good penitentiary, on his when told behavior again be at would shortened he would sentence only liberty, in such he would he stated that event period intention, out for a it was short because his his to kill his wife and mother. He was re- release, his morning January penitentiary leased from the purchased liquor, 26, and en which 1948, route some of possession he had in his he when arrived at his residence perpetrated The murder sometime Denver. was January between 11:30 P. M., hours of January and 3:00 A. M. on 27, 1948.

The domestic and deceased life defendant by frequent quarrels, many marked resulted in of which striking brutally beating defendant the deceased. prior Either at the time of the death of the deceased or pending. thereto, a action ac- divorce Defendant infidelity, cused wife his and on occasion at least one brutally alleged paramour. beat her and her evening

Defendant arrived home after the meal washing while his wife was After dishes. the dishes “fussing,” had been washed, and his were defendant wife get and defendant then stated he wife could a better than gone deceased. After the children had bed and before defendant and his retired, wife defendant liquor remaining drank some of the the bottle possession during had in on arrival. At sometime night, definitely the at and as evidence, as is fixed 12:30 M., about A. there was some commotion occupied bed defendant and his wife, and he was choking Shortly seen her. thereafter arose poured whiskey some on his wife’s face while she perfectly again remained still and silent. Defendant re- early morning tired, and in the awakened children, stating they go Brighton that were to visit his father. At the time the children arose, their mother was bloody, apparently still her bed, face was and she had not moved. Defendant and the children bus, missed the being and returned to their home, mother still on apparently the bed and younger lifeless. One suggestion passerby brothers, at the Robert, accosted notify police. meanwhile In the him to and asked there when and was had left home defendant the mother found police and at 8 o’clock arrived about 11 o’clock about arrested at dead. Defendant was charged and murder morning subsequently with and resulting indicated. hereinbefore as trial tried, the Berger discovery the coro-r dead, was Mrs. On the charge and also took remains, ner took called, was by bedclothing blood was stained some of the finding performed autopsy An was other substance. asphyxia, due to was of deceased made that the death resulting strangulation, mainly due to was not from coroner self-inflicted. natural and was not causes, clothing. An an- specimens from defendant’s stain took alysis specimens, the blood well as as of these stain bedding, them disclosed other found on the substances wholly type, dif- to be deceased’s blood the'same as had specimen he of which defendant’s, a ferent from analyzed. voluntarily given been had likewise and which insanity plea was reason While the of not the Colorado was sent court, before the according to Psychopathic Hospital and, observation, for hospital, testimony psychologist found the to be sane. physicians un-co-operative He with was antagonistic, hostile and sullen, bitter, and was there, hospital killed he had he denied that While mean. being un- he felt that she but stated that wife, her, for had beaten this he him, faithful to thought killed; that he felt she deserved to be her elation because of nor but remorse, sorrow neither death. evidence that when defendant

It is disclosed pugilistic, drinking as well mean, brutal and he was frequently highly quarrelsome. arrested be- He was others; wife and served some treatment of his cause of paid jail this; and on two occa- sentences; fines short prior of his excessive use of alco- 1948, because sions Psychopathic Colorado liquors, sent holic for observation. sometime his con- Hospital prior At to viction of fourth he degree and while arson, employed, sustained a back a con- injury received he siderable sum at money damages, which, as part of least, he here shared with his far the record wife. So as reveals, this was account- injury very remotely, all, if at able for defendant’s While he was disposition. serving his sentence back in- the Colorado Penitentiary, resulted in his work and being heavy relieved of light duties were him. assigned to

When defendant officers, was after questioned by his arrest, he stated his wife had helped dress children for their visit to their and that grandfather, his return, after her missing bus, gone he found from the home.

After arrived at officers the home and found the murdered a wife, broadcast for defendant’s arrest made, while he was at a bar he heard two officers a man inquire about whose description corresponded his; with thereupon jacket removed his and an extra pair trousers and bar, officers, left passing did who him the man wanted. Prior recognize to the just related, given incident had defendant watch a bartender for a pint whiskey.

It is seriously contended error was prejudicial committed in permitting Robert, son, testify eldest as to the in their occurrences home at the time of homicide, the time thereto returned until following- morning. When Robert was called as a witness, counsel, and on objection by defendant’s court, out of the presence of the made ex- jury, tended examination as to Robert’s as wit- competency and both ness, counsel were full given opportunity question him. In addition to the court interrogation counsel, Clinic psychologist the Mental Hygiene of the Colorado Psychopathic Hospital length testified as to Robert’s extended mental from her condition, examination, reached the Robert conclusion that competent testify. preliminary matter, as a court, accordingly, permitted testify. determined and he During his examination as a witness he was so interro- gated by People counsel for both and defendant jury opportunity judge had fair and reasonable to competency accurately ability as to his as well as his to occurring relate the incidents in the the time of home at discrep- his mother’s death, while there were some testimony, they may ancies in his be characterized as considering age, trivial, and, truthfulness his reflect contrary. rather than the testify;

Defendant did however called his counsel purpose establishing several for witnesses a men- derangement tal in order to enable the to deter- mine, discretion, exercise its whether to fix penalty imprisonment death or at for its life should degree. verdict be of murder of the first Gener- ally the witnesses testified that while was not defendant quick mentally persons, and alert as some other distinguish right wrong, nevertheless he could and, having mentally capable made such distinction, was adhering right refraining wrong. to the from the negatively Other for witnesses' defendant testified they had seen never defendant strike or otherwise beat, abuse his wife.

At conclusion of all of the evidence, the court denied motion, defendant’s which was: “If the Court please, the defendant desires to move at this time, parties conclusion of evidence of all case, Jury withdraw from Court the consideration of the any question penalty of death herein, and a verdict penalty Jury. for such be not to the submitted And as grounds motion, for this that no confession or admission killing the defendant of the of the Pauline deceased Berger evidence; been offered or has admitted only alleged eye that the evidence of witness to the killing Berger, said was the witness Robert the seven year incompetent son of the who defendant, old was so

testify testimony as a witness at and whose all, confused and in contra- many contained so statements diction of all of the of the case as to physical facts and insufficient improper Jury, consideration of the which death, base a Jury might cannot find a murder.” degree conviction first

The record were pre- discloses the court’s instructions sented if such objections, to counsel for examination there which were, after prior instructing jury, defendant’s the defendant stated, counsel “At this time has objection no to the instructions to be sub- proposed mitted the instructions no Jury, exceptions be submitted or offered.”

After verdict, filed receipt motion for new and sentence trial, denied, was pronounced on the verdict.

The error assignments eighteen are in but number, defendant’s counsel properly has consolidated them, are they under the 1. presented following: verdict; The 2. testimony of 3. Berger; Robert evidence of remote quarrels; cross-examination; 4.-denial of right 5. fail- ure to instruct on voluntary manslaughter; 6. failure to instruct on mitigating circumstances.

1. and 2. It is the of counsel position for defendant error in was committed the failure of the court instruct on jury the circumstantial evidence, although admittedly no instruction on feature was tendered or He bases his contention on requested. the statute ’35 (section chapter C.S.A.) concludes with following proviso: “provided, no shall person suffer the death penalty, conviction, who at the time of age eighteen was under nor (18) years; shall any death who shall person penalty have been suffer convicted circumstantial evidence alone.” (Italics ours) 2 section 32 section

This of the act amendatory (S.L. ’01, p. 154), only substantial in change law above for being proviso prior quoted, prior penalty amendatory inflicted could be the death act We have evidence. direct or circumstantial either degree many murder first of the examined the record date effective our court since the cases determined except amendatory as hereinafter and, act of 1901, specifi- none in which the have found noted, might cally penalty not be advised that the death imposed. not- time, here for the It is contended first expressly withstanding counsel defendant’s the fact that given jury, approved neither the instructions notwithstanding requested others, tendered nor court’s include that the it, motion for new trial did not degree defining did not murder the first instruction proviso, person no shall suffer include the “that * * * have been death who shall convicted con- evidence alone.” and this failure circumstantial It should be remembered stitutes reversible error. also given, that no instruction on circumstantial evidence requested; here contended nevertheless tendered it give constituted failure an instruction that the such for the reversible error. Were seriousness it rights duty safeguard imperative and our case, every might ourselves we content defendant, questions properly before statement that these are not disregarded. entirely should us, and, therefore, for with refer- contention of counsel necessity for on murder and the ence to the instruction every case circumstantial evidence an instruction on is counsel is impression unique If this court. and one of first follows that eminent counsel correct, in in state have overlooked criminal cases this amendatory point 1901; trial the act of of eminent since the fifty years, properly period judges for a failed, have juries, as court, and those of us now instruct position occupied since who have as others well discover error and so determine. failed to 1901, have imposed Many cir- where the have been death sentences sympathy appeal would to one’s of the case cumstances in fairness to a much greater extent than facts the the present warrant; case considera- nevertheless these tions, influence collectively should separately, inus the our discharge duty.

In the case of Ausmus and Moon v. People, 47 Colo. 167, 107 204, Pac. was murder of the first charge degree; the evidence circumstantial only; there was guilty; verdict and the fixed the at life jury penalty The there imprisonment. record discloses the court instructed the -inter alia: “Under law and the jury, evidence no sentence of death could be inflicted in this case, and you you instructed in the event find are either of the defendants first murder fix degree your should to be punishment verdict ” * * * inflicted at for life. It there fur- imprisonment ther jury instructed the on circumstantial evidence. Bosko v.

In 188 Pac. People, 743, George Colo. and Tom Bosko, brothers, over, the former and the latter under, age of two- eighteen years, guilty to a pled count they charged information one of which were with murder of one and in other with Hunter, one A murder of Parks. jury impaneled pro- as vided in section and before there was direct supra, evidence both defendants with the murder of linking The Hunter. returned its guilty, fixing verdict of the death as to and as instructed penalty George, it was to do in event of first murder verdict degree against Tom, penalty fixed the as to him life imprisonment, statute so account of his providing age. only evidence with the linking Parks, defendants murder of count, second charged circum- concededly stantial, and as count to this the court in- properly structed the jury: your “At the outset of deliberations the Court you instructs the People rely for convic- victions circumstantial evidence as to the killing, set second count, out to-wit: the killing of Elton Parks, C. and for that reason you assess cannot death under this count even though you find may

377 degree.” of murder in the first defendants also instructed evidence. court there on circumstantial our has disclosed, So far as search there is no decision direct this court to be where there was both found jury in- evidence with an circumstantial before defining degree and con- struction taining murder the first proviso, supra, direct where nor there evidence has been an circum- there instruction also on first-degree stantial evidence in a murder case.

The decisions of court this disclose the follow- ing covering judg- cases, two we affirmed decades, penalty ment district court in death and in cases, any advising jury none thereof was instruction could be death inflicted if the conviction was based on circumstantial evidence alone. Shank v. People, People, 576, 79 559; Colo. 247 Pac. v. 91 Maetas (2d) People, 36, Colo. 11 P. 227; Catalina v. 104 Colo. (2d) People, 585, 897; 93 P. 401, v. 96 Pacheco Colo. (2d) Leopold People, 165; 43 P. 147, v. 105 95 P. Colo. (2d) People, (2d) 811; Coates v. 106 483, Colo. 106 P. People, 354; (2d) Martz v. 114 Colo. 162 408; P. People, (2d) Smith v. Colo. 206 P. 826.

It is not intended the citation of this list of our suggest decisions to even error that if was committed by us, we should therein; continue we should be first to our correct mistakes, be; if such there law should be settled and new construction should be made cautiously, only thought after careful and mature purpose citing Our deliberation. these decisions—and period fifty we could have extended the* over a list years adjudications —is to show an unbroken line of therein; no modification deviation that, therefrom, change long therefore, we should and well under- only line stood of decisions when we are convinced of public acknowledgment our mistakes make thereof. Until such conviction the rule of stare decisis should followed.

If defendant’s contention is correct, would mean con- murder must degree instruction on first every informed

tain and the must proviso, supra, and it age that even though question there is no about is the of age admitted is over eighteen, that the defendant it must if the defendant nevertheless be instructed that is under be age imposed death cannot penalty the it instruction defin- and likewise be told in every must the de- ing first a degree finding murder verdict fendant death cannot guilty fixing penalty As returned where evidence is circumstantial alone. we have ex- so far learned said, as we have from amination of the records in of the many decisions in court the last enactment fifty years, since the 32, section with reference supra, the proviso therein, age in- evidence, circumstantial has not been cluded in the instruction in the defining murder first degree.

Robert’s testimony was that of an eyewitness was direct, as evi distinguished circumstantial, dence. Generally may it be said evidence is that direct such as establishes the existence of a material fact with out in indulging any The presumption. inferences determination as to whether evidence is or cir direct cumstantial a exclusively court, of the prerogative while weight to be such likewise given evidence is an exclusive Mitchell v. prerogative jury. People, 76 Colo. 346, 232 Pac. 685.

It, must therefore, testimony be admitted that Robert’s was direct evidence. Nevertheless is here contended it was, that he 'of account as nonage, incompetent witness, and further testimony susceptible that his of a construction that made circumstantial evidence. With this last contention we have agree. cannot We examined the statutes on murder in the every state United as well States, federal for the statute, whether a ascertaining statute similar ours purpose and, if might found, so, construction As given it. murder result of our search we found that statute only provided different for a Georgia one alone. circumstantial evidence was when per- punishment provides: Georgia for “The statute may be but death, murder shall be sons convicted following penitentiary in the for life in the confinement trying recommend, case shall so If the cases: solely on circumstantial founded conviction is or if the testimony, may judge confine- presiding sentence penitentiary Annotated for 6 Parks life.” ment Georgia, 63. Art. Sec. 4th Div. Code was found 60 Ga. State, In Shaw v. murdering sentence and the death wife, conviction imposed. contended there It was would author- evidence which circumstantial rested judgment modify to confinement court to ize the penitentiary the instructions to the the but in life, the jury “ * * * they from That believed said: if it was guilty, was evidence that the be would no recommendation them and murder, judgment of regarded, affect the and could that it not only witness the the was therein stated that court.” It simple, ignorant, testifying to direct evidence was contradictory made had weak-minded colored man who Occa- on other the facts with reference to statements sions by supported syllabus, when under oath. opinion, direct evidence “Where there was the reads: gave it guilt, though who witness even defendant’s having ignorant to and admitted weak-minded, contradictory in- previously under made statements charging err did the court not fear, fluence of mercy no would be of a recommendation avail.” Georgia present may statute said that

It amendatory previous trial Shaw and the statute, aof present supra, the enactment was before State, v. previous statute true, this to Granted statute. amendatory very and the present similar, statute are changed provisions important here. statute quoted

As is indicated motion of defend ant’s counsel, evidence, conclusion of all of the testimony it is his contention that Robert’s should be wholly disregarded, and it is here now contended that susceptible of a construction circumstantial, rather than direct, evidence. It should be noted that testimony every Robert’s was corroborated in material respect. Robert said his father choked mother; his coroner asphyxia found that her death was occasioned strangulation. due lay Robert said that his mother choking, still and choking lifeless after the and that the midnight; occurred about the coroner testified that the death occurred January sometime between 11 P.M., January 26, 1948, and 3 A. onM., 27, 1948. testi Robert fied that when he and other children and his father went the bus, the mother was on bed, still lifeless, and when he returned she was still in the same position opinion In our condition. there never has brought been a case to our attention where circum persuasive stantial evidence was more and tended stronger support testimony the direct than in the instant case. gather objection

We from the record that competency Robert’s a as witness is based his youthfulness provides intelligence. rather than Our statute years age, effect children under ten appear incapable receiving just who impressions respecting they facts are to be examined who incapable truthfully relating are facts, these shall not chapter be witnesses. Section ’35 177, C.S.A. We have called attention to the amination out of the after an fact that extensive ex-

presence jury, with full opportunity given interrogate counsel to him, court the competent capable determined that Robert and receiving just impressions truthfully of of fact and re- lating the same. After the examination of in the Robert, jury, compe- absence of the tency and with reference to his qualification and aas witness, court said:

381 particular opinion child “The Court is of that certainly receiving impressions capable and com- is of municating As to them a and accurate manner. fair correctly credibility matter is, course, of Jury Jury in- course, be of decide, will, to and the particular with all the case structed on matter as is witnesses. capacity have' a and to

“So far as an oath to take impressed proper understanding is of the Court that, opinion probably possesses more child with that this age, average .ability and has child than the of a of telling perception a lie of the difference between telling questions the truth. His answers to some of give. might many were better than of us adults answers Berger, “On that Robert basis the Court finds that age and a half seven State, offered as for the witness years, capable standpoint observation, from the thoughts, ability communicate his recollection and to impressions, receiving just com- accurate also and of understanding petent standpoint mean- from the knowing ing obligation difference oath, obligation right wrong, state between objections findings against On truth as a lie. these boy and the will defense will be overruled, testify.” permitted be sworn and to interposed Objections similar to the one here testimony and overruled have been made Robert’s City 392; 479, 54 131 Pac. Smilanich, Colo. Victor v. People, v. 698; 210 Brasher 257, 72 Colo. Pac. Holm v. People, People, 119 827; 253 Pillod 81 Colo. Pac. v. 113, (2d) People, 121 Colo. 919; Warren v. P. Colo. (2d) 381. P. permit- no error was committed We conclude that testify; ting direct, his evidence was Robert jury might properly with base its verdict, penalty attached. the death counsel’s further contention is that

Defendant’s leading questions permitting committed error propounded apparently point to Robert. This urged hearing strongly rather de- at the on time fendant’s motion for reference trial, a new and with thereto the trial court stated: leading questions,

“As to de- have a number of we general cisions, and it that a child seems to be the rule may witness led to a limited extent. The Court permit go any careful not to further than was that to necessary. questions put by Danks, Mr. to which exceptions objections and referred were made opinion the motion for a new in the of the trial, were, proper scope Court not examination, such without properly extent; that the child was led to that again gave there answers which he were for Jury to consider. impressed

“The Court also was with the other testi- mony brought concerning point out the same on cross elapsed examination. Some time had of the between the time direct which he examination, referred to the choking, Mr. between the cross examination Wettengel, empha- and there the witness reiterated and sized the. statements which had made ex- direct concerning amination his recollection of what had especially regard choking occurred, with to the of the deceased. appears question boy’s

“It to me whole of the testimony weight; down view the boils Jury, apparently, Jury verdict of the decided he was telling truth and that he remembered had what actually happened. For that reason the Court cannot objections any part consider raised to of the testi- mony boy Berger. of the Robert hearing testimony

“I now, should add after boy, ruling more convinced than ever, Court was competency testify correctly been had made. general impression I That was received from the testimony given by boy witness.” People, supra, urged

In v. where it Warren attorney directing the district committed error in lead- ing questions to children who were witnesses, we said: [indecent liberties], “But cases like the instant one recognized asking leading we have a-wider latitude questions—both youth because of the of the witness questions. People, the intimate nature of the Wills v. (2d) Colo. 66 P. 329.” It is, SO'far as we found, have a universal rule that leading questions permitted largely whether should be is only within the discretion of the trial in clear court, permission cases of abuse of that discretion will such held to reversible error.

We that in conclude the trial a murder case duty judge it is the a trial to as matter determine, of charge, supporting law, whether there is direct evidence only respon

and when, and when, criminal sibility is based on circumstantial evidence alone, does duty it become the of the trial court to instruct imposed. that the death cannot be In trial any prosecution case, murder where the relies in part whole or in evidence, circumstantial if defend ant’s counsel desires an instruction on such evidence, duty prepare is his and tender such, and its refusal may constitute error. There was sufficient direct and competent justify evidence which would the verdict competent, qualified herein; Robert was a witness, weight given testimony being jury’s to be for the determination, and the court did commit error permitting prosecution propound leading ques tions witness. permitted

3. The court the introduction of evi dence threats other acts violence directed objection toward To deceased. this evidence an interposed grounds preju on of its remoteness and According dicialness. to the record and evidence, the September, act first of violence occurred in 1943, at opprobrious which time called defendant the deceased struck names and her, and, as result of altercation, the officers were called. There of another testimony act of violence before occurring days April, two cursed child born when defendant deceased, and swore her that she at deceased and had beaten so swollen, “bruised very badly, eye black, one nose ear partly on one mark jerked side, big off had a her neck.” and the same on Janu- witness testified that ary 26, 1946, chased deceased out of their home at two o’clock in with snow morning, knife ground, and with a butcher was armed which he threw at deceased home as she entered the both witness, at time defendant threatened deceased and the home she had entered. person whose

There was with no testimony defendant, in 1944 apparent cursed and struck deceased while provocation, she was In harbor in a Novem- seeking neighbor’s house. ber, in 1945, roomer heard deceased Berger home and her little son scream for and when she entered help, the room she found and defendant deceased the floor face; her in beating shortly prior thereto, that occasion, another swore and cursed decedent. One he of decedent’s in sisters testified that 1945 defendant struck her to decedent, whereupon one of brothers came rescue. decedent’s

In saw July, 1946, neighbor heard loud talking and in home, defendant his wife standing doorway his and had a boys being outside, three and that defendant in knife his hand and was and threatening deceased it; children with that defendant started toward wife and and them children, chased down the There alley. other testimony concerning was and quarrels alterca- with results similar tions, to those all above, disclosing animosity intense and hatred on defendant’s part It decedent. also should be toward remembered that when June, 1947, being was transported he remarked, the state when told penitentiary, good that behavior would shorten the time necessarily spent there, I I back 30 out will be and when get days.” asked, “If

385 you thing replied, I do “What do mean?” he “The first * ** get get when I out, mine. The second wife of that thing get my I further do, mother.” and asked when replied, kill “I what he meant will statement, that he them.”

It should also be borne in mind stated that defendant to one from he wanted to be free witnesses that him, deceased wanted her divorce and killing thought same witness a stated he he that good thing; not was what and was deserved, she sorry gone. glad at all but she about rather it, It is contended cited here, but with no authorities support of the contention, the admission of this prejudicial evidence was and was immaterial because following too remote, but the from authorities our own jurisdiction conclusively demonstrate this conten- People, tion is Davidson 145; erroneous. 4 Bab- v. Colo. People, Wyk cock 817; v. 13 Colo. Van v. 515, Pac. People, People, 1009; Colo. 991, Pac. Weiss v. 87 Colo. 44, 285 Pac. 162. present undisputed

: In the case the evidence discloses January defendant, 1943 until con- and, tinually habitually mistreated deceased, according brutally evidence, it was his habit to pleased fancy beat her whenever it Evi- do so. cruelty dence of these acts admissible for purpose showing malice; motive the remoteness destroy admissibility compe- thereof does its tency may weight as evidence, but tend to weaken its n jury’s . effect consideration. assignment

4. Under this defendant takes position right the court him denied cross- of own examination of and his witness refused admit to certain exhibits. It will be defendant, remembered that prior plea guilty by his trial, withdrew of not insanity prior reason of at the of, time and sub to, sequent charged. that, to the offense areWe aware Ingles People, our decision in 22 under v. Colo. P. 518, derangement mental of or insanity evidence (2d) of for the purpose admissible, is not insanity short of from offense of the grade reduce the but acquittal, ob- should be It degree. murder to second of first quali- been announced has rule therein served that our opinion limited and fied, modified somewhat 897. Battalino (2d) 199 P. 118 Colo. People, v. not of under a plea clearly pointed Therein we out insanity of raise issue guilty might defendant not charge, his acquittal purpose securing can defendant not finding nor render a verdict in a by reason of If it is determined insanity. under proper proceeding, plea, proper was insane and of the commission prior to the time of the he he because offense, cannot be tried for murder lacks the and to form an intent and mentality purpose, there malice, would then be an premeditation, absence of wilfulness and necessary degree deliberation in a first murder commission case, insanity to the subsequent the trial would deprive offense and at the time of him of his with which to God-given prepare faculties it defense. When is deter- present judicially mined com- that a man was insane at time of the offense, mission of an accountable under is not In Ingles v. not law, criminally responsible. we so People, construed it supra, held, Battalino any mental People, supra, v. that evidence of material ailment, abnormality deficiency may or incapable forming establish that defendant was malice, with executing executing act purpose without a verdict deliberation and premeditation, could murder the first degree not sustained. Battalino v. clear, make our we quote To position find a supra: “In common thread People, attempting cases reach the conclusion that the we of reason these of evidence as to on the admissibility insanity basis of homicide is its degree dependent issue of the rather such, but relevancy insanity relevancy its ques- killing. The and deliberation wilfulness whether defendant tion to be determined is not homicidal act was committed insane, but whether the premeditation. evidence with deliberation and of- insanity may may fered as not to that relevant issue.” People

After the a Dr. defense had called rested, Hirschberg, who had he examined defendant while Psychopathic under observation at the Colorado February Hospital February 1948, from 1948, 27, 16, subsequent will which, noted, the commis- charged. Hirschberg sion of the Dr. offense testified in part: “In our I examinations him feel [defendant], there is no whatsoever, doubt as the result of our ex- Berger aminations, and as result of our observations, right wrong, can tell the adhere he is able to from right doing wrong, to the and he refrain legally sane.”

Upon cross-examination defendant’s counsel interrogated with Dr. reference to a recommendation physician Psychopathic Hospital, Busse, at the asylum, defendant be sent to the insane and then re developed direct examination it recommenda upon tion was based an examination of defendant prior being Penitentiary, to the sent State degree interrogation charge. the fourth arson Further recommendation, elicited answer that Dr. Busse’s made in was based chronic Dr. alcoholism. subpoena Busse was under a duces tecum issued on be present half of and was defendant, in the courtroom part, People during all, if of the time the trial. After the completed

had their rebuttal rested, evidence and defendant’s counsel called Dr. as a Busse witness his interrogated then him client, with to his reference May, examination because, 1947, and surprise testimony, claimed a counsel witness’ permission surprise asked to cross-examine him. The claimed defendant’s counsel arose-in with connection University following on the letterhead letter, reading: May 23, 1947, of Colorado, under date of Boyd R. Garrison “Honorable County Judge Adams

Brighton, Colo. Berger

In re: John Your Honor: hospital patient named was admitted to

The above patient County. complaint 5-13-47on a Adams previously hospital in 1944 at in this which time was diagnosis Patient was chronic final alcoholism. family against hospital by the advice taken from this his hospital physicians. of

During very present hospitalization, dif- has been his bellig- uncooperative, has ficult to handle. He erent and We feel become hospital. escape attempted from the has in this treatment that he will not benefit difficulty hospital only get he will into more if alternative but We therefore have no other released. lunacy placed com- to recommend that he be before a Hospital Pueblo.” mission and to the State at transferred following alleged surprise This questions during occurred because Wettengel’s direct Mr. examination: Independent “Q. that letter, letter, of or with that Doc- you you can to us this time whether or not tor, state at County Judge Court recommended to the County, May, this defendant 1947, Adams lunacy placed and committed to commission before Hospital A. chronic alcoholic? Pueblo, as a State at your my Q. rec- That was That recommendation. A. sir.” Yes, ommendation? May 1947, was then offered as 23,

The letter of stating pur- for that the offer was counsel exhibit, objection impeachment. pose re- On the offer was stating based that his refusal was fused, the court surprise was occasioned which would “no the fact that * * * and the further for cross-examination warrant testimony.” improper In this surrebuttal reason it

389 ruling The letter of we believe the court’s May was correct. hearsay only 23, 1947, was and could if used, Pomeroy People, purpose impeachment. all, for the v. (2d) 116 Colo. 182 held P. 139. We also have may before one own there cross-examine his witness (Ware showing surprise People, must be definite v. 123), utterly Colo. here Pac. and the record fails wherein sur- to disclose defendant’s counsel was prised. If counsel desired to extend his examina- direct tion and have base recommendation witness hospital defendant be sent to at Pueblo other grounds alcoholism, additional he made than chronic proof, no such offer of and the court had no occasion to pass upon propriety doing. held the so The court holding improper evidence and such surrebuttal, Turley People, correct. 73 536. v. 216 Pac. 518, Colo. urged

5. It is under the evidence given voluntary court should have on instruction manslaughter and which submitted a of verdict form permitted jury guilty would have to find defendant thereof.

“Manslaughter killing is the unlawful a human being express implied, without malice, or and without any mixture deliberation whatever. It must volun- tary, upon passion provo- a sudden heat caused a apparently passion cation sufficient to make the irre- involuntary, sistible, in the commission of an unlaw- or a act, ful lawful act without due caution or circum- spection.” 33, 48, Sec. c. ’35 C.S.A. voluntary manslaughter

“In cases of there must be a highly provoking injury serious inflicted person killing, passion sufficient to excite an irresistible person, attempt by person in a reasonable or an personal injury person killed a to commit serious on the killing.” 34, 48, Sec. c. ’35 C.S.A. reading most

The careful and consideration of this utterly record fails to disclose a scintilla of evidence remotely which would warrant the submission of an 390

instruction to fur- jury manslaughter; voluntary thermore contra to voluntary manslaughter entirely theory upon which the defense relied. defense here was not which guilty, by specifically the defendant denied that he had committed of which he was the act him accused, the evidence clearly points of a murder. Evidence also was introduced perpetrator which to have sought on behalf it was of the death grade offense and the lessened, relating the evidence defendant’s excessive avoided, alcohol, use of evidence mentality also might criminal be lessened because of an responsibility which had sustained injury prior commission crime. said, As we have there is not scintilla of evidence in the entire record would have sup- voluntary ported manslaughter, verdict not obli- circumstances, under these the court was and, Jones 93 People, v. thereon. Colo. gated instruct 103; voluntary no furthermore instruction (2d) P. and, under tendered or manslaughter requested, if an instruction circumstances, such even such error. mere constitute proper, nondirection would not Winbern v. 516. (2d) 180 P. People, Colo.

6. court failed counsel complains Defendant’s all evi- to instruct consider might circumstances, arriv- including dence, any mitigating it is herein, impos- at its Under the record ing verdict. circumstances any any sible for us find evidence Of miti- in by jury been considered might which have of this offense. gation folios; was begun record the trial

The consists of concluded day June, 1948, the 21st and June 1948; hours, deliberated less than three found and degree murder, of first fixed defendant cause in court at death. The came at issue this penalty day March, 1950, assigned 27th and was on the about 1950. July 10, author considered,

The record we convinced that are impartial had fair defendant trial upon properly convicted of the of murder evidence crime beyond guilt. any The trial established, doubt, judge impartial rulings; was fair, and careful in his by given approved expressly instructions were defend- requested ant’s counsel, tendered, others were no given and refused, and the vulner- instructions are not any attorney repre- able attack here The cause. senting safeguarded his defendant the trial court every right, woefully negligent client’s but was discharge sugges- and, of his duties this at our court, appointed, tion that other court counsel be trial appointed represent Mr. Mellman to on this every possible review, and he has effort in his made client’s behalf briefs which evidence and dili- careful gent study, thought and research. We been have not technical case, in our consideration of the record this given painstaking study and have it and careful and de- thought, only purpose protecting liberate for the rights public, defendant, well as those of the might but also that we be conscious of the fact that our duty premises faithfully discharged. in the has been The situation in which defendant finds himself is one entirely wrong-doing,- due to his deliberate and for which except he-has no one to blame himself. It is the law that one who commits murder, as did defendant must herein, imposed by jury, suffer the death if on and so long as law this remains our books, must, statute it will, be enforced. judgment affirmed, and, since the week fixed during trial court which towas be executed has long expired, judg- since nbw court directs that the ending ment be executed within the week November 1950. Chief

Mr. Justice Hilliard, Justice Mr. Moore Mr. Justice Holland dissent.

Mr. Justice Holland dissenting.

392 dissenting majority opinion I believe herein,

In to the following opinion Court. the should the of the be by Upon jury 1948, returned June 30, verdict guilty the de- found of murder of first defendant was gree, a new death; after motion for was fixed at fixing pronounced, the overruled, trial sentence was January beginning 8 and execution date of ending as the week stayed, having January been 15, 1949. Execution assigned judgment us is before this by of error to the writ plaintiff I refer will as error, to whom defendant. by January

By Dis- 1948 30, filed information charged Attorney, with defendant was trict January killing 1948 his wife felonious February City County arraignment, On of Denver. assigned, en- after counsel was 10, 1948, defendant, insanity guilty by plea reason of of not tered the and now. It was ordered that since, time, psychopathic Colorado ward at committed period Hospital not for General for observation May thirty days. record shows that exceed plea attorney, withdrew his defendant, plea insanity entered a not reason of resulting guilty. in the course, in due Trial was had mentioned; motion new trial was verdict heretofore the record counsel then caused after which overruled, prepared presented filed in this court here within the time allowed lodging After

therefor. prosecute this writ counsel further here, record failed to Attorney petition this General, error, assign requested counsel for trial new court court to compliance re- with There was a this the defendant. assign- accepted present quest the onerous counsel must notice it, he found and we record as ment, took the presentation us. now before his able it is reviewing capital confronted case, we are with In being duty yielding unpleasant to, or con- of not sympathy, by, human but to examine the natural trolled entire record “in favor of life” and to.be far certain, as certainty any can in exist such defendant case, that safeguards humanely had, or will now all of have, the provided by land, the law of the as well as available that through power this court in inherent dictated good parts I To end out conscience. set salient testimony rulings record made from the and court. thirty-one approximately years age,

The defendant, January 1940; married the deceased deceased was 29, years twenty-nine they old of her death; at time years Brighton, lived a farm about five on near Colo- to 3763 rado, moved Williams street, Denver, They namely, four 1945. had John children, Robert, oldest, and Paula Frank, Richard, Robert, Jean. October 1940 and was 18, time of the trial born years age. In over seven com- June, defendant serving penitentiary on menced a sentencé the state degree charge a of fourth arson, and was released there- January M. about 9: 00 A. on 1948 at o’clock day, On home. that he started to his Berger, preliminary Robert the oldest after child, a by presence jury, examination court out of the permitted testify objection over of defend- According testimony,, ant’s counsel. to his the defendant shortly deceased, home reached after dinner when washing dishes. Robert testified that he and his sister already gone provided had to bed in a small bedroom with a bed; twin beds and small child’s defendant that money threw some on floor children; for the a took pocket drink out of a bottle he had in his that and then placed the the dresser; bottle on that heard his mother arguing drinking; and father about the father’s that de- get fendant said “he could a better wife than she. was.” slept a Robert with brother twin bed close occupied twin bed defendant and the In deceased.. leading question (as out) point ato answer I will later testified that he saw Robert mother; father choke his bed; that were down they jumping up ap- and down straight up of the clock were the hands night. 12:30 All of o’clock at parently indicating off were lights in the case indicated that testimony the defendant in the Robert further testified that room. around; whiskey some poured and walked got up off; lay then deceased wiped face and deceased’s dressed, walked nothing; got and said still into kitchen for a while forth in the house, back and to bed and got then came back undressed de- while; daylight, with Robert for at about bed them going children told he was fendant aroused the he further tes- Berger Brighton; see their at Grandpa to- themselves and helped tified the children dressed that deceased dressed; during all of time get each that bed; the same on the way and was lying said nothing and defendant face; was blood on her that there that It a cold was alive.” very tried “to make believe she bus; get went to on defendant morning they and out Jean, and the three child, carried the Paula youngest come; not walked did .along; other children that bus and to and cry children defendant younger began home; left; defendant the children returned then and deceased older into the house found boys two went them, on on her face and one of the bed with blood lying Frank, Hanauer, passerby, went and told Mr. outside Hanauer testified he down call that went police. to de- and a call to the police block placed into next examiner Dr. medical Angelo Lapi, partment. the call and County Denver, responded and City and later body day performed that charge took by found that death was caused asphyxia autopsy superinduced and was from strangulation not due time death was fixed causes; as between natural M. and 3:00 A. January P. o’clock 11:00 o’clock M. at arrived police promptly 27. Several officers January 11:00 Defendant was arrested o’clock about the scene. The near 47th and Williams street. day M. on that A. wearing which were stains, he bore blood suit coat path- analyzed by clinical McConnell, Dr. Frances later being by type ologist, as “O” blood made the same that of deceased. police headquarters, questioned

When at pur- City by way he bus, Canon that stated liquor Springs pint had Colorado chased a he Lake; Palmer some drinks and sandwiches at evening; early with he retired home arrived midnight; he 4:00 about o’clock deceased about that at Brighton; de- with decided to the children take help, left with the children he ceased’s he dressed baby along started and the them, but when no bus came cry, and the de- he returned with the children home left returned; he at home when he ceased bought pint whiskey Hotel, Ward’s went to inquiring police about where he overheard officers some jacket removed him, a man dressed like a leather so wearing pair over another and a pair; of trousers that he was Brighton, but he then out to catch a ride to police. went (cid:127) was arrested testimony relating prior People introduced and mistreatment of The defendant

threats deceased. showing testify, numer- but introduced evidence did not prior defendant; of violence ous arrests of the acts others; and his dis- defendant toward the deceased and ways; profligate introduced evidence solute and he also showing injury received in 1946 and his commit- a back Psychopathic Hospital observa- Colorado ment to the tion on two occasions. evidence,

I detail but little of the circumstantial will my which, from examination of the record consid- guilt unmistakably points to the of the whole, ered as convincing however circum- course, defendant. Of this might by supported evidence if not direct be, stantial penalty My imposed. cannot dif- evidence, the death parts testimony ficulty Berger, of the Robert stems many part, details, inconsistent but direct and said to be direct to the infliction sufficiently support of the death situa- Due to the of the penalty. graveness moved maudlin for the tion, by any sympathy not we should this defendant, consider testi- conscientiously how it was how it was treated mony, obtained, by court, considering and the lack of caution to care My of the evidence. possibly controlling part in the of this case is not study important phase with jury’s of a reversal of the find- pursued thought ing appropriate question but as is guilt, by which, of death or life imprisonment, instruc- statute, in the hands under jury’s proper rests from the Robert testimony tion court. part old most direct Berger, seven-year witness, that is devastating to the statement a lack he saw his father choke his mother. There is such in other there continuity testimony of his parts inflict danger is concealed in its consideration if used to a death search and of the record does penalty. My study reveal the above statement of child witness came in to a voluntary. response positive, leading It answer, him twice before the question propounded the record in and, as shown the examination follows: attorney, district

“Q. you say, your Did dad Robert, your choked that? mother, you say did Wettengel:

“Mr. I say object He didn’t that. that. Danks: My “Mr. he did at one understanding say that point.

“The Court: The form of the question objection- sustained as that. with Objection your able. Proceed inquiry.” examination, attorney,

Then later the district sky again following out of clear propounded ques- tion:

“Q. did Bobby, you tell the did Jury, Court you us, Bobby, your tell dad choked mother? your I ask the record Wettengel: “Mr. be consulted. supply suggest an- only attempt an is It not something say trying child make he is but swer, challenge say. record. I not he did may I this was true. ask whether He “The Court: proper, present question is form its think don’t may whether ask now he that, he stated whether happened, may You ask. to. he testified what not your you your Bobby, Hanks: dad choke did see “Mr. A. Yes. mother? your he do? what did

“Q. mother, choke did he How put A. By Q. hands? did his Where his hands. A. Bobby? you Yes.” Q. that, A. Did see her Around neck. testimony, According while the this was to his other lights I am unmindful in the room. off not were leading questions in- permitting more or less rule regard; indulged in that latitude is and that some fant, caution followed with must be this rule however, offing. It- in the a death limitations where ques- important, this me it is noted, and to must answer propounded, words the other or in twice tion was answer. put child before the mouth was into the not will statement the effect of this seriousness voluntary say came from permit me to that it by wholly had lips what uninfluenced the child attorney. In a presence the district said been partially refuted this statement measure, possible how details of to the medical examiner as might place. strangulation a sufficient It have been took largely the on the discount caused the to have variance entirely rely testimony more, child and say point in- I no At this evidence. circumstantial given to the evidence was on circumstantial struction opinion. jury, later in for discussion I hold that intimately lay who ac- witnesses, were A number of period over a testified that quainted defendant, with the queer, years there, all acted the defendant opinion This mental condition sane. was not in their was shown to aggravated on by drinking excessive part the defendant which had for a continued long time prior to his plea to the charge which occurred arson, under and cir- strange peculiar cumstances-and for which served a term in the short penitentiary. It is established definitely by evidence that defendant had been twice psychopathic sent ward of the Colorado Hospital General for observation. The last of May these two occasions was in 1947. When the was defendant directed to be to the sent psy- for observation chopathic hospital Court by County of Adams letter county, report a and was by sent to- the psychopathic hospital county court in matter. At the time Dr. Cotter on Hirschberg testifying behalf of the herein People psychiatrist, and charge of the psychiatric ward when defendant committed by the court ward for observation the present case, counsel for interrogated him concerning the matter records hospital the previous occasion May, 1947, just mentioned, sought identify the exhibits the offer was re- jected. The exhibit offered is marked Defendant’s Ex- hibit is as follows: #2

“University of Colorado Medicine School of and Hospitals 4200 East Ninth Avenue

Denver 7, Colorado

“May “Colorado Psychopathic Hospital “Honorable R. Garrison Boyd County

Adams Judge Colo.

Brighton,

In re: John Berger Honor: “Your

“The named patient above was admitted to this hospital 5-13-47 complaint Adams County. The patient in 1944 previously hospital at which time the diagnosis final was chronic alcoholism. Patient was family against hospital the advice taken from this his hospital physicians. very “During present hospitalization, been he has uncooperative, bel- has become difficult to handle. He is ligerent hospital. attempted escape from the has in this We feel hospital treatment that he will benefit difficulty only get he will into more other alternative but if released. We therefore have no lunacy placed com- to recommend before a that he Hospital Pueblo. mission and transferred to the State yours, “Sincerely “Ewald W. Busse M. D. “Ewald W. Busse, Senior Resident” “ewb;bm” copy is the other which was

This a offered exhibit the original. called For counsel for defendant surrebuttal, psycho- charge in of the Busse, Dr. Ewald W. who was May, pathic in ward at the of the commitment time testimony, claiming surprise at- at the doctor’s tempted between him the to cross-examine variance objection, testimony upon coun- his exhibit, the examining privilege the further sel was denied the upon appears counsel witness. It the matter testimony in the witness was that his desired to examine alcoholic, while fixed of defendant as he the condition signature, dis- over the offered witness’s exhibit, the defendant recommended that closes that the witness lunacy placed and transferred to a commission before ruling Hospital the I believe the at Pueblo. the State rejecting re- well as the exhibits, in as trial court testimony capital in a case on the of surrebuttal fusal question mental condition to be considered of the According fixing penalty, error. was serious (2d) Ingles People, 1109-12, 518, had 92 Colo. P. case of v. though not relied even defendant, the plea “ * * * insanity, evi- introduce entitled to derangement insanity, in- short of or mental dence of sanity, purpose, acquittal, for the not of an of reduc- but ing grade of the crime from murder of the first ” * * * degree degree to murder of the second fur- “ * * * opinion, ther in determining it is In said, penalty imprisonment, whether the shall be death or life jury act the exercise of a sound discretion. It conceivable that the mental condition of a may time the homicide be such induce jury in the exercise of their fix discretion, to lesser * * penalty great

It any would be at the risk of harm to exclude bearing upon evidence mental condition of the de- unmistakably fendant, such as is shown the tendered May being exhibit, of 1947, as material as to possible January, mental condition in 1948. This could easily controlling have been the feature of all evi- jurors, dence in the minds of one or more or the entire jury, question considering when it came to the inflicted. considering guilt

In the matter of the or the innocence of the duty I defendant, believe that it was the by proper court, instruction, to caution the con- cerning testimony Berger, seven-year of Robert permitted testify old witness, not under the statutes except in sound discretion of the trial court after ex- especially capital amination, cases. This does witness general not fall within the class adult of witnesses whose credibility by jury is to be determined the under the guidance general of the stock instruction as to the credi- bility jury of witnesses. To so caution the come does not emphasis by within testimony the ban of the court of the any particular of immaturity but due to witness, the of only guess part the witness, it is a on the of the trial competence. as court to the This would in nowise lessen testimony the of the jury effect of the witness if the was age directed to consider the of the witness and the likeli- imaginative impressions hood of formed around and extraordinary an unusual and about an event. This cau- permit jury, tion the would the its observation of credibility, in which, to determine for itself the witness, analysis, just important discretion the as as the last is testify. judge permitting This of the the witness doubly important requirement for consideration is capacity fixing presumption against penalty. the The the very years crime old commit a is of strong child seven possible apply the and the same should reason fixing testimony capital The case. effect of a child’s phase penalty fol- and in case, the a vital this was of lowing general the it should is rule, we hold duty requested to instruct not, whether court, question phase jury every on essential suggested by circumstances the evidence and the case by guidance suggested connected with the trial. This easily between difference the court could have been the punishment. imprisonment or death life as the principle applies the failure The same as to give on circumstantial court in case instruction obtained, in this The evidence case evidence. direct leading by questions uncorrobo- and is seen, we have jury by except could circumstantial evidence. The rated by easily circumstantial more influenced have been The elicited. so evidence than direct evidence part throbbing question to what before us is not as guilt jury or inno- as to the evidence satisfied part thereof influenced but what defendant, cence of the fixing penalty. quantum of the testi- them in mony but circumstantial, the state was relied given all that the no instruction law. provides, that the death cannot substance, By only. imposed the failure evidence circumstantial give on circumstantial evidence, an instruction saying testimony equivalent “the court you direct.” is before determining punishment, the the matter

As to phase touching only instruction instruction “ * '* * following: your contains the unless 19 which No. degree, verdict should murder in the first guilty instructions, in which in accordance with event, these will fix either life you imprisonment punishment or death.” My of the instructions no reading discloses nothing other reference to possible penalty, way guidance making a rule to follow distinction between the There should two penalties. have been an instruction to the effect should including consider all of the miti- evidence, any gating and also evidence of circumstances, any consider derangement mental in the determining the penalty, event their verdict first of murder of the degree.

I could unduly lengthen this dis- opinion by further cussion of these vital I questions, but am confident sufficient has been herein pointed out to show uphold imposition the death penalty by the jury in its unguided deliberations dangerous, permitted if stand, as in such precedent cases. The whole record is sufficiently satisfying to sustain the of guilty verdict of murder, but not to warrant the infliction death of the penalty. We therefore are confronted with further dis- position of the case. we Consequently, should consider our power modify judgment, I believe to be inherent when true so justice requires. To hold other- wise would be an impairment underlying most salutary power with which this tribunal con- has fidently been entrusted people for the final and ultimate administration of justice. The distinct function of the administration has been vouchsafed to judicial department, separate and free from encroachment other departments of the government. been It has wisely provided that the failure or judi- exhaustion of the cial then executive power, clemency may sought. First conscious our being responsibility, should we measure up full, to the not shift burden to the executive department.

A modification of from the judgment us, before imprisonment, death to life would not that of pardoning power. be an of invasion of the The exercise judgments control over inferior tribunals and their is in way powers clemency no related to of invested the department. judicial the executive The act is and not executive. legislative may department

It for the is define what to against person, property, public, be offenses the or the general punishment. and set a standard for No one legislature anticipate would dare contend that the could surrounding all the of of the circumstances commission punishment. crime, and fix an inflexible standard for Considering in full realities of life and the varied the complex relationships people and of intercourse, life’s say finally legislature I must this function of the is general, a and an not inflexible, standard. modify

doWe not hesitate to the affirm, reverse, or judgment, judge orders, or trial of a and I do find not any logical jury reason hold that the a has verdict of any potency finding judge. more than the of a Our trial power judgment upon to set aside a reverse based jury questioned. grant a verdict is not of ex- this power surely power, treme includes lesser of judgment justice requires, a modification of when shown the entire record of a case. power modify judgment

No limitation before us is'to found in the Constitution the stat- jury body separate utes of this state. The is a not apart part part court. It is of the court and a judge of a combination which constitutes controlling judgments the court. Our action in power modify. the inferior courts, embraces the Our right ultimately to exist and to function as a court must upon power dispense justice. rest our fundamental Modifying judgment would and an act award justice. of of we what should determine In to be our form government, justice imperative. hereinbefore

I indicated that errors have men- justify a reversal tioned were not sufficient judgment guilt, have and also based verdict of testi- direct record of so-called indicated that entire unmistakably mony, points evidence and circumstantial remanding guilt A to the reversal defendant. lapsed period from of this cause for a new trial after this ways, could, in several result date of the offense justice. I am satisfied However, a defeat ultimate wholly guilt, jury, after determination of its by nonguidance possible prejudice in unaffected ques- fixing penalty. On this their deliberations arising any exists, a benefit tion reasonable doubt belongs exer- Therefore, in the therefrom defendant. judicial opinion power, that I am the cise of our full of judgment herein we should order that the verdict imposed penalty of that the be modified, imprisonment for life.

Mr. Justice Moore, dissenting. respect- briefly I

For stated, reasons the hereinafter fully majority opinion. from dissent the (cid:127) very provides person clearly shall, Our law that no penalty been convicted “suffer the death who shall have §32. ’35 c. C.S.A., evidence alone.” circumstantial provides is further an accused It that in in which cases jury degree “shall fix convicted of first murder, penalty imprisonment life.” at death ample in

There disclosed is circumstantial evidence murder the first this record to sustain a verdict of of degree. lawfully penalty However, could no death imposed jury upon cir- relied for this if the conviction cumstantial least There is to be found the evidence. not any suggestion in was there court’s instructions any right upon whatever of limitation of kind though jury impose a its verdict death sentence even entirely upon evi- of circumstantial based dence.

Admittedly, only upon trial, evidence received distinguished circumstantial, from direct, is as year given by child, the seven old evidence, was that Berger, testify. permitted view In who was Robert age of hesi- witness, the tender and the natural tancy placing re- firm mature minds must have steps upon impressions children but few liance a incapacity testify, entirely con- removed jury disregarded the ceivable that this cause boy placed “direct” re- evidence of the their little upon point- liance the wealth of circumstantial evidence ing high guilt persuasion with de- toward the jury issue fendant. The was not instructed if the guilt penalty in- could be decided, thus no death erroneously complete ignorance kept flicted. It concerning any and circum- between direct distinctions stantial funda- essential, and thus was evidence, without possession mental of which was neces- information, sarily prerequisite intelligent to an assessment principles consistent with the basic of law which taking authorize the of human life for crime. forfeit jury possibly The members have could not properly discharged legal responsibility their refer- with fixing penalty, complete ence absence any stating power. instruction the limitations their understanding Thus the concerning could with act full simple law, the for the reason that it given upon sufficient instruction which to act in full light. foregoing

It no answer to the to that, assert when upon (who counsel for the defendant the trial does not appear court) object in this failed to to the instructions given, no tendered instructions which would have correctly applicable thereby stated the law, he waived right the of his client that otherwise would been have spell absolute. Reliance technical rules should not the between life difference and death. There are some procedure fundamental essentials in court which cannot One of them waived. is that, whoever assumes to felon death exercise to a convicted to right the put order the death law, the name of the shall not elect to a full until, explana- there has been penalty unless, law places tion which the the limitations concerning for- order death as a the exercise of the to power upon death feit law which authorizes for crime. The fixes than that greater is of no penalty weight to it. limitations inflict upon power of a group death order No should be to person put con- were uninformed of citizens who serving jurors true This is limits of their legal power. cerning abe may accused without to the fact regard abnor- felon, or or semi-moron, convicted previously an out- or for other reasons vicious, mal, despicable, of men. eyes cast in the

Since, might well jury is here admitted cir- wholly upon guilt have determined admitted that evidence; since it is further cumstantial information acted absence of complete impose law limitations its to placed power had entirely that, it is penalty; possible the death since death been legal relating imposition limitations ob- have might known to the a different result jury, a reconsideration of the tained; quéstion there should be which considers Any jury to be exacted. concerning informed fully should be anew, the question de- order the death affecting right all its matters fendant. Justice by Mr.

I unable as contended agree, am that this court has dissenting opinion, Holland im- to life the sentence from death power reduce exclusively power Our law places prisonment. the executive to the only power jury, subject clemency. extend with full jury, acting knowledge another

While the penalty death, fit neverthe- see to fix law, might for life. only adjudge imprisonment also might less it should be reversed and the judgment In my opinion proceedings the cause remanded for further consistent expressed. with views herein Chief Justice Hilliard dissenting.

Mr. fully analyzed Since the dis- record, stated and senting opinions which Holland, of Justices Moore clearly unhappy I indicates defend- subscribe, only proper trial, have a fair ant did not reviewing justice, join I concern of ministers dis- in. senting opinion. respective from But as the court’s disposition suggested by dissenting the other orders justices, differing widely, agree I Justice with that of granting trial, which would of a new Moore direct province, within our rather Justice than that of well change pen- Holland which would sentence alty jury, imposed imprisonment death to life permissible, our as I am hands, convinced. 16,239.

No. Sherberg Englewood. v. First National Bank of (222 782) [2d] P. September 18, Rehearing Decided 1950. denied October 1950.

Case Details

Case Name: Berger v. People

Court Name: Supreme Court of Colorado

Date Published: Sep 18, 1950

Citation: 224 P.2d 228

Docket Number: 16203

Court Abbreviation: Colo.