*1 in the record to the verdicts and support judgment, affirmed. judgment Knauss, Mr. Justice Justice Hall and Mr. Mr. Day
Justice concur. 19,013.
No. Early People v. David Francis State of
Colorado. (352 112) P. [2d] April Rehearing May Decided 1960. denied 1960. *2 Hower, in plaintiff Earl J. for error. Mr. Attorney Frank E. General,
Mr. Duke Mr. W. Dunbar, Deputy, Harrison, Assistant, Mr. Gerald Hickey, in defendant error. Amicus Curiae. Ginsberg, Charles
Mr.
En Banc. Doyle the Court. opinion Mr delivered the Justice the defendant in trial court in error was Plaintiff By an information to herein. and will be so referred 1958, 2, 1958, filed it was that on charged April May Regina defendant and murdered He Knight. killed reason entered of not and of not pleas guilty guilty by at time of the insanity alleged commission of offense. The court issues trial ordered trial of the thus formed be consolidated tried and the case was commencing November 1958. found the The jury guilty murder the first and fixed degree at death. punishment writ Thereupon, or error was issued.
There is no as to the actual facts homi- dispute fact, cide. In counsel for defendant conceded at the trial if the established beyond evidence a reasonable doubt of the defendant the facts sanity established his contended, however, murder. guilt (Counsel should have been jury allowed to consider murder the second degree.)
Defendant was released from a federal penitentiary 22, on April 19581 He to immediately came Denver and went to the office of Merrill a Knight, Denver attorney who had befriended him in the past. He made efforts to contact in the latter’s Knight office and on the night of April 24, made plans burglarize to the Knight home and to rob members of the With this in family. mind he tried but was unsuccessful in his efforts to obtain a Defendant said that gun. he was convinced that he again would become in involved trouble and that this his was motivation for the He then robbery. intended to go to Texas or Mexico. He decided to rob the Knights because and merely they well off accessible. fact that had him Knight befriended was not significant in defendant’s thinking. - On took a he Saturday, April taxicab to the Knight in home located Arapahoe on the County outskirts of home, Denver. no one at Finding he entered the house the back searched it through door, and found a 32 caliber with four shells and pistol also rifle which he loaded. He then what gathered up he money could find and Knights return. members for the to As individual waited gagged family home, bound and arrived he them of the By evening Mr. and and for the others. both waited daughter, Knight, son, Kenneth, Karen, and Mrs. their up imprisoned and different had been tied in rooms According plan statement, to defendant’s his house. gagged them rob them and leave bound and as was to so provide get-away. Although Knight him time for a Mr. managed up foot, hand and stand and was bound he obey room and refused to hobble around the defendant to lie down. Defendant shot him three when he was told and times and then went to master bedroom shot Knight through pistol Mrs. the head. The was then upstairs empty. then obtained the went rifle, Defendant killed Karen. Kenneth had meanwhile and shot and managed ran free his feet and out the front door as apparently came back downstairs for the the defendant killing shooting purpose of him. One shot was fired yard. as ran across the front The rifle at Kenneth he escape. permitting jammed, Kenneth then Defendant get away and tried to clothes one collected his captured by neighbors Knight but some of the cars, Although had been alerted Kenneth. defendant who Knight, does resentment toward this harbored some killings. appear motive for the The murders were dispassionately perpetrated coldly because robbery necessary success of to the believed escape. his order to effect insanity, the defendant called of his sev-
On issue psychologists; psychia- There were two witnesses. eral trist who *4 had examined the defendant while he had Hospital 1955; the State in in Colorado been confined concerning psychiatrist the defendant’s testified another confined in Leavenworth he was mental condition while part during early Penitentiary of 1958. Two other the during period psychiatrists the had examined defendant prior testimony following to trial. The homicide the or less consistent in more these witnesses was all of of as a schizophrenic the defendant personality classifying trends. The doctors conceded the ability with paranoid from recognize right the defendant but testi- wrong, unable to refrain from doing wrong. fied that he was five all of whom People presented psychiatrists, testified defendant was sane. Their legally to the effect testimony was defendant was or “constitutional All “sociopath” psychopath.” detailed the expert past life of the defendant a full account of and included the examination which him. From this it would given appear was that although intelligent, was he had highly also shown which had him high degree irresponsibility involved trouble time he in continuous from the was boy. small prosecution physicians These were unable to find any of delusions or other evidence system indicating schizo- conceded the They phrenia. irresponsibility accused and said that he “put together but wrong” that he was not insane” “legally in he had the recognize capacity right wrong and to refrain course choosing wrong from of action.
This was one of sanity fact, and since the this found fact in accordance jury with the opinions eminent who from expert psychiatrists the record pre- justified were in entirely opinions, sented their are we reach a liberty not at conclusion different from that of the trier of the facts.
It the trial noteworthy court was scrupulous its efforts to insure that the accused had adequate psychiatric testimony. Expert witnesses were brought state and from outside the the court was careful other at psychiatrists appoint defendant’s request. Two of the People’s witnesses, Drs. Hilton and Rymer, called in District Attorney immediately after the commission of crime. The major on issue this review to their pertains examination and testimony. interviewed the defendant on They April 1958, in the Arapahoe County jail prior to his arraignment *5 appointed before counsel had been defend He him. spoken freely physicians had to these and from this they legally interview concluded that he sane. was Although they they identified doctors, had themselves as they psychiatrists had not revealed that that were and they giving psychiatriatic were the defendant a examina- However, tion. brought at the end of this fact the interview
to the attention of the accused and then he supposed they psychiatrists. stated that had he were testimony It is also from inferrible wit- various nesses the accused was Hilton and aware Drs. Rymer psychiatrists lacking because he was not in experience. such He had had numerous such examina- previously prior tions jected and on a had been occasion sub- psychological
to the Rorschach test. assigned A total of 19 errors have been defend- necessary only ant. We deem it to consider those which argued. points may have been raised be summarized as follows:
1. That it was error for the trial court to receive Rymer of Drs. Hilton and on rebuttal. This is predicated on the contention that ’53, C.R.S. 39-8-1 is provide mandatory procedure said to and exclusive raising trying insanity the issue of in a criminal during case. Examination of the accused confinement arraignment and before violated the statute and is con- trary process equal protection guarantees to the due of the Colorado and United States constitutions. allowing
2. Rymer That the trial court erred in Drs. testify concerning and Hilton to results of the examina- immediately tion which was had after the arrest defendant. It is contended this constituted com- pulsory self-incrimination violation of the Colorado constitution. submitting
3. That the court erred in case jury on the ’53, basis of C.R.S. 40-2-3. It is claimed that section, this perpetration which classifies murder committed in the rape, robbery, mayhem arson, or bur- in that is unconstitutional murder, as first degree
glary, trial with jury accused of his deprives right thus malice, element of respect essential *6 Constitution of Amendment, violation Fourteenth of the II, Section Constitution the United States Article of Colorado. and impartial
4. That defendant was of fair deprived delib- following trial in that the reached verdict jury erations 25 minutes. It is said only which required the thus failed and refused to read and consider jury the instructions of the court and that it followed its precon- defendant. concerning guilt ceived notions of the
I. The whether is so statutory procedure exclusive that it other examinations. prevents ’53,
C.R.S. 39-8-1 provides: “Plea insanity.— If one of the defenses of the (1) of is it defendant must be at the same insanity, pleaded pleas, time with all other unless it is to be the sole plea of the It must be either charge. pleaded orally, by counsel, defendant or his in the form not by by guilty reason of at the of the commission insanity alleged time crime. A plead of the defendant who does not not guilty reason of shall by insanity presumed be conclusively have been sane at the time of the commission of the offense the court for cause charged, provided good shown allow a at time before may change plea any A commencement trial. pleads who reason of not without also guilty by insanity, pleading admits the commission of the offense guilty, thereby charged.”
This to the extent provision mandatory defendant who intends to defend on requires ground insanity interpose appropriate plea. But does not mean that the section operates this other mental examination of an every possible exclude does not seek to arrest provision regulate accused. which was here investigation. Although practice nothing if followed could misused be invalid, there is precludes employment by statute which either People physicians psychiatrists the accused or the testifying awith view to their at the trial. provides immediately ’53,
C.R.S. 39-8-2 after entry plea of a the accused be committed to shall Hospital the Colorado State at Pueblo or the Colorado Hospital Psychopathic in Denver for observation examination. This is intended to insure examination specialists psychiatrists, during diseases, in mental period operate observation, but like 39-8-1 it does not private employment psychiatrists. to exclude The statute cannot be construed as from the exclusive standpoint People applied and not exclusive when interpretation to the accused. Hence, the result of the urged by the defendant would be bind the accused by psychiatrists to the results of examinations at the *7 Psychopathic Hospital Colorado in Denver or Colo- the Hospital physicians rado State in Pueblo. If these powerless to find accused insane he would then be contrary testimony. to secure and introduce This strained rigid interpretation justified by and statutory is not either the
provisions byor our decisions. Though mandatory above, to the extent indicated govern aspects the statute does not all of the criminal insanity question. Ingles People, apparent holdings This is from our (2d)
v. 92 22 518, Colo. P. 1109;Battalino v. People, (2d) Berger People, 118 Colo. 587, 199 P. 897; v. (2d) People, 122 367, Colo. 224 P. 228; Leick v. 131 Colo. (2d) proposition 353, 281P. 806. These cases stand for the insanity that evidence of is relevant in a trial, criminal notwithstanding merely that defendant has entered a plea guilty, bearing upon capacity of not as of the specific strongly accused to form a intent. The rule was People, (2d) reiterated in Beckstad v. 72, 133Colo. 292P. 189 as follows: “* * * regret say We we must once more that again which has heretofore been said over and over for officers: and prosecuting of trial courts the guidance right, case has the a first murder degree A defendant establish plea insanity, without reference to form capacity as his bearing upon mental deficiency * * *” murder. first degree intent essential specific 1953, codified in C.R.S. Finally principle (Cum. Supp. 1957). 39-8-1 a Criminal Defense, Mental Disorder
Weihofen, partisan experts 333, considers whether a statute would could be excluded and whether validly procedures be constitutional which creates exclusive testi expert and for the giving the accused examining holds 3d Ed. He out mony. points Wigmore, §563 constitutional a statute interferes with such evidence as they such parties of the adduce right has think He also out one state points adopted useful. and that this provisions exclusive statute such providing Lange, See v. had been held unconstitutional. State in that case is some 639. statute (The La. 123 So. non- excluding than provisions extreme in its what more such a statute is Whether expert witnesses.) appointed statute does not not be determined since our valid need based testimony upon other examinations exclude Wigmore The examinations. non-statutory Weihofen point up complexity discussions serve to a holding which would follow confusion problem other than that excludes that our statute to it. pursuant originates which here (39-8-2) cannot be said that the statute Thus it procedures governing establishes exclusive in question accused. emphasis the mental examination *8 of establishing procedures plead- is the of the statute of sane or judgment insane) (looking ing trying issue. insanity is that objection basis of defendant’s The underlying him the'kind here conducted of deprive examinations of prosecution if the advantage. argues a tactical He mental examination conduct a preliminary is allowed to
471 compelled practically the defendant is thereafter to enter plea guilty by insanity. longer of not of reason He no option plead guilty anticipating has an that he can insanity purpose still offer evidence of for the limited negativing of or malice intent and at the same time foreclosing prosecution from a mental examination. prosecution insanity When, as here, the secures the evi- very prepared dence at ality outset, it is for this eventu- longer monopoly and the accused no has a on this type proof. deprived It is said the defendant is thus aof defense which has been him. available to illogical
This contention carries to an extreme the adversary aspect insanity or contest trial, and we agree deprived are unable to that the defendant is of a right granted by guaranteed by or statute the constitu- pre-arraignment tion. A mental examination of the rights any accused does not of itself violate his more taking than the aof statement from him constitutes per se violation. It would follow, therefore, single particu- serious issue which arises is whether the rights lar examination violates the constitutional accused.
II.
the
pre-arraignment
whether
mental
examination constituted a
priv-
violation of defendant’s
ilege against
deprives
or
him his
self-incrimination
liberty
property
process
life,
without due
law.
argues
(and
Defendant
the examination
subse-
quent testimony)
Rymer
of Drs.
and Hilton violated his
rights
constitutional
as defined
the Fourteenth
Amendment of the Constitution of the United States and
II,
Article
he was
Section 18 of the Colorado Constitution in that
compelled
testify against
himself.
v.
Tuttle
People,
Radinsky
33
Colo.
People,
Pac. 1035;
v.
People
66 Colo.
472 to operates self-incrimination against the privilege against compulsory accused protect In Tut- in other proceedings. at the but also trial only crime, was of the accused, suspected though case the tle In at coroner’s inquest. oath to under testify called called before testify had been other cases the accused P. 36, (2d) 125 240 Block v. Colo. People, In juries. grand to real held to be inapplicable 512 the privilege is Kallnbach effect To the same evidence. demonstrative 242 P. 222. 144, 125 (2d) Colo. People, v. if shown subject are to exclusion of guilt
Confessions See and thus untrustworthy. involuntary have been v. 892; Buschy 4, Colo. 262 Pac. v. 83 People, Osborn 111 519; People, Pac. Cahill v. 472, 216 73 Colo. People, A that a confession showing 673. 29, 137 P. (2d) Colo. the basis that on incompetent also renders involuntary due process require of the substantive in violation it is Constitution Amendment to the Fourteenth ment of the 49; Indiana, v. 338 U. S. See Watts the United States. Harris v. South 62; U. S. Pennsylvania, v. 338 Turner 121 People, and see v. Carolina, 68, Downey U. 338 S. however, not, do 215 P. 892. These cases (2d) Colo. against violate the privilege that such statements hold United Court of the Supreme self-incrimination. self-incrimina privilege against has held that States Amendment, Constitution Fifth guaranteed by tion constitute restraint on does not United States Jersey, New 211 U. S. v. State Twining action. state to the due subject confession is The involuntary 78. Amendment Fourteenth requirement process In concepts. democratic to basic contrary it is because 236, the reason for U. S. California, Lisenba v. explained: exclusion is rule of * “* * due denial of trial, criminal to a As applied fair- fundamental failure to observe is the process In order concept justice. the very essential ness absence find that must a denial of it we declare com- acts trial; infected fatally fairness plained quality necessarily prevents of must be of such a fair trial. Such unfairness exists when a coerced con- obtaining guilt. fession is used as a means of a verdict of every We have so held in instance in which we set have *10 process aside for want of due a conviction a based on * * *” confession. suggestion There is no that the defendant’s re sponses in the at case bar were extorted from him express implied. force, Furthermore, there is no showing that was deceived he or that submitted to the interview-examination under the influ misapprehensions. ence of material Defendant has testi receiving fied that he was not aware that he was a psychiatrists mental examination when the interviewed according testimony, believed, him. He to his that the Attorney agents. say, doctors were District He does not however, that he would have remained mute had he been aware of they their character. The doctors testified that identified themselves as Moreover, doctors. there is basis concluding for identity that the defendant was aware their psychiatrists.
as Thus the doctrine of Rochin v. 342 U. California, 165, S. which condemns forcible inva person applied sion of the of the defendant, cannot be theory surreptitious here on the that this was a forcible or opinion, mental invasion. We are of the therefore, that rights the defendant’s were not violated and that the ruling trial court was correct in that the subject suppression was not and was admis sible evidence.
III. C.R.S., ’53, Is 40-2-3 unconstitutional in it defines perpetration robbery murder committed in the a as degree? murder in the first argues ingredient Defendant that malice is an essential of the crime of murder at common law and under our statute and that the
attempt by legislature to sub- proof certain stitute named felonies for of this element 121 Colo. v. People, Garcia upon He relies is invalid. 463. U. S. S., 213 P. and Tot v. U. (2d) unconsti was declared the Garcia case statute In larceny in a prosecution provided tutional which unknown to be alleged is ownership cattle in which has butch that one who of guilt is facie evidence prima The hide. failed to produce a meat animal has ered to exist shown rational relation Court held no pre and the the hide to produce the failure between elements the essential embraced all of sumed facts which delicti. corpus larceny, including of the crime of provided which Tot involved case, supra, a,statute a crime of violence convicted of had been where person firearms, possession found in and was thereafter trans had unlawfully exist that he would presumption readily It commerce. same in interstate ported they in that distinguishable that these cases are apparent a substitute for the true presumption use of involve *11 all the proving for necessity with the dispense proof does the basis of fact which crime upon elements of the involved in conclusions rise to the give not logically not have case, we do In the present offenses. particular has provided legislature Here the a true presumption. that declared murder. It has definition of substantive named of the perpetration in the murder committed prosecution The degree. murder in the first felonies is a reasonable beyond the homicide prove is required degree to the same to establish is also required doubt-and named felony the commission of proof of perpetration in the of homicide commission said felony. - adopt Assembly the General It competent was cases, in the above and the rule described this definition Manual Criminal Melville, in which is also discussed 3d Ed. Wigmore, See 44, applicable. Evidence is not definition legislative this type (holding §2492 a presumption). does not constitute in upheld provision uniformity cases have Our 475 People, 1031; Pac. question. 193, v. 33 Colo. 79 Andrews Frady (2d) People, 282, 103; 26 P. v. Jones v. 93 Colo. People, People, (2d) Leopold 105 606; 40 P. v. 43, 96 Colo. (2d) People, 114 147, Colo. 95 P. 811. In Silliman Colo. v. (2d) briefly 130, 162 P. Court considered 793, the - summarily specific point posed dis- which here (114 144.) posed itof as follows: Colo.
- jury “The advised' in one of its instructions court thet!|! ** if homicide the defendant committed the * * * poison charged by means the information * * * * * * premeditation, and intent malice, deliberation, proved.’ apparently takes the need position be Defendant irrespective effecting of the method premeditation malice, and intent homicide, deliberation, proved. reading The must be most casual of our decisions legal without will one this contention is convince support. People, 193, 1031; v. Colo. 79 Pac. Andrews 33 People, (2d) Brady 103; 26 P. v. 282, Jones v. 93 Colo. People, (2d) P. 606.” Colo. People, supra,
In Jones v. held that was murder degree in the second is not an issue where there are no justifying in the facts record submission of instructions degree specific defining and a verdict second murder. pertinent language of is as Mr. Justice Butler follows: (93 288.) Colo. poison committed “Where murder is means of or
(cid:127)J lying perpetration attempt in the wait, of, or in specified, perpetrate, one is the felonies in section supra,' only degree namely, of murder, there one degree. first If murder the uncontradicted evi is to that murder committed dence of the effect in one ways specified way, .and in other above, no *12 degree case, of murder is not in the and second guilty defendant should be found murder of degree, acquitted; is or he should be there no middle first n . course.” People, P. (2d) v. 587, See also Battalino 118 Colo. 199 upheld degree 897 which a verdict of first murder and 476 very-
also ruled that was not circumstances it error under similar to submit presented to those refuse here degree verdict of second murder. court
It and that follows that the statute is valid murder correct in its refusal to submit in the second degree to the jury.
IV. im- and and Validity right wrong irresistible pulse tests described 39-8-1 ’53, (2). C.R.S. This phase of defendant’s addresses itself to argument this, and test. right wrong urges together It with the it impulse irresistible test is outmoded and that should be are repudiated favor of the tests which approved S., in Durham v. F. have U. 862. We (2d) previously considered this contention rejected have 2, 1959, in Castro November People, v. decided Colo. 493, Wechsler, 346 P. 1020. See also The Criteria (2d) Criminal 22 U. of L. Rev. Responsibility, Chicago 374, etc.
We have carefully examined the record and find it be remarkably free error. The defendant was repre- sented by competent counsel him highly who defended with skill and ability, we cannot say that did not he receive a fair trial. is affirmed and it is judgment ordered that
same be executed during the beginning week June 1960. Day and
Mr. Justice Mr. Justice Moore dissent. Day Mr. Justice dissenting:
An analysis opinion reveals such majority statements as “the statute is the [under consideration] establishing procedures pleading trying It issue.” because does insanity precisely the statute I govern object stamp given trials that to the of approval to the trial in this case people wherein the before placed — — — Three jury package psychiatrists. one five *13 Early Schapire Trail —-examined and McDonald, Drs. permitted authority pursuant in the which statute testimony by give only and thereof their virtue them to and other limited their use of admissions and statements prescribed 39-8-2. ’53, evidence as in the statute. C.R.S. — — Rymer psychiatrists ob- who Two Drs. Hilton and authority can that I tained under similar information no type gave precisely find in the same law, the in detail the and without without benefit of the statute restrictions therein. majority opinion widely fundamental
The skirts the By -question author- raised in case: and under what this relationships physi- ity, through voluntary either psy- patient operation by these law, cian to were permitted personal such a examination chiatrists to make They probe could and into mind of this defendant? gone pockets; they could not have not have examined his they to his not have vio- room and searched could it; person. they his into lated his then can examine How mind? present of the exam-
Let us see who was at the time by authority. a Mr. ination There were and what investigator; McCauley, attorney’s Carleno, district Mr. deputy attorney; district attor- O’Kane, district Mr. attorney ney, psychiatrists. district and the two The People representative was there the elected of the as provisions powers are and duties under of law and his prescribed by the stat- law. He cannot function outside deputies. investigators This and ute. This is true of his police. Who sheriffs; is true this is true investigators? they Police offi- doctors? Were gave guards? Deputy attorneys? Jail Who cers? district right question? them the appointed psychiatrists the court later three right authority because had
under of law says: the statute permissible any such observation
“It shall be physicians confessions said to use examination for admissions of other evidence as defendant, any to the facts and circumstances surrounding the commis- sion of crime, for the questioning purpose thereto to aid them forming opinion * * *” *14 to the or sanity of the insanity defendant; (Em- phasis suppplied.)
So the same three called the state psychiatrists by gave their reason of this But testimony by permission. the other two such the required permission. no I read end result of the ruling herein to be that all of the things obtained by the in the psychiatrists post-arrest — examination the statements and admissions and the other evidence of facts and circumstances surrounding — the commission of the offense be as available just without the aid aof statute as it. with
A further reading the statute shows that in the same sentence, separated only by it is semicolon, provided that when the psychiatrists conduct the examination by *“* * virtue of statute, it shall also be permissible for them to administer or cause to be administered to the defendant sodium sodium metra- amythal, pentothal, zol and like and drugs, to use or cause to be used on the aid to them in forming as polygraph, an opinion as to the defendant; or of the insanity sanity * * *.)” (Emphasis supplied.)
Would the law now that be any psychiatrist making an examination before plea permitted to use drugs, and to conduct éxamination? It type will be noted — the two portions of the statute are identical first it shall part permissible be in the observation evidence; examination to use admissions arid other in the second Now, is permissible drugs. to use course, drugs were not used in this case, so the precise the statute is not is. us, before but If these doctors were permitted, without aid of statutory law, to use confessions and admissions other evidence to aid them in their then aren’t opinion-testimony, they per- mitted, other to use as well? means ..i “govern A used to further examination of the statute the trial” reveals: directly acquired
“However, no evidence substantive indirectly any such or for the first time as the result observation and examination admissible on shall be put guilt charged issue defendant is of the if the crime any from issue; on that evidence obtained trial only on such observation admissible and examination is except insanity, on the trial of the issue when offered charge guilt rebut the trial of the issue of of murder insanity by to reduce evidence of offered the defendant degree any murder; and in such case said evidence constituting part may by only jury be considered opinion physician of the basis of as to of the sanity jury insanity shall be defendant; and the upon request so of either instructed the court party.” (Emphasis supplied.) psychiatrists
It is to be noted that the state five presented jury sequence. to the Their *15 virtually except describing place identical the where the held in each instance. All five examination was they history, that out- testified used his his statements lining detailing information the and other crime, baring very available from the defendant his soul. While repeti- testimony monotonously it is true that the fact that discernible differ- cumulative, tious ence the no inescapable
appears in their leads to the either acted under no conclusion two of the doctors authority did not need in the law or three of the doctors statute, their examination of defendant was so far as has been true, If this is then the statute concerned. exactly meaningless. testified rendered Since all five only attorney used Drs. could the district have alike, attorneys Rymer? did, And if district if he Hilton and request future, could one a in the follow such cautionary course by instructions accorded the pursuant employed psychiatrists if the statute be obtained for the first Could' evidence to the statute? through used at this method of examination and be time says so obtained the trial when the statute that evidence questions that remain cannot be used? These are the they questions haunt unanswered, but are will prosecuting attorneys courts in decide future cases if — employ maybe psychiatrists- — n all of four the state’s — maybe arraignment, six concerned before and not be prescribed one and re- whit with the examination as by stricted the statute. opinion accuracy
I of the statement in the objection underlying that the basis of is defendant’s deprived the examination of the kind him of a conducted here advantage.” certainly “tactical That new concept viewing rights prisoner. of a the constitutional Every safeguard of, that I know if vio- constitutional deprive advantage. lated, would As one of tactical safeguards matter of fact constitutional intended are give advantage protec- the defendant over and some might oppressive tion from the tactics which otherwise strong be I it, used arm of the law. As view the underlying objection is that basis defendant’s he was deprived rights. of his constitutional That is what he assignment said in his he said of error what astoundingly trial court. And court the trial answered objection thusly: his constitutional right. “THE Court, COURT: All The however, will make one correction in the motion. Court treat will this motion as Fourteenth under the Amendment rather you allegation than Fifth, since when make an under the Fifth in a court state the Court should treat it as an * * * allegation under the Fourteenth. This constitutes my opinion. opinion reversible error in I am of frank position is much there to be said for the defendant’s *16 clearly I that, in this case and want the record to reflect although put opinion writing my I will at later time. * * * say again, repugnant person’s I is, It as to me for a — explored to much as for his to mind be as stomach pointed explored, Supreme in one United be out States — prior arraignment plea, Court case to the time of and especially exploration where the intent of the is to fore- — may appear legitimate close what to abe defense may may depending upon which it not and facts circumstances. opinion process
“I am of the that due demands that the People’s Attorney very in cases of kind this follow closely the strict letter of the statute and that the exam- only by ination to be held order of Court in state hos- pitals. nothing I However, am frank to admit that I find support in the law to such a conclusion, the cases which I have found have dealt with collateral and rela- specifically tive matters question and do not bear this on examining partic- into the mind of a defendant at this point ular time. I also wish to this is not a casual examination such out for record that lay
aas witness might have made. This is not an examination of someone partic- who was heretofore familiar with the defendant’s patterns, ular might conduct, his behavior which be opinion sanity. basis opinion for as to his The Court is of the particular by Rymer that this examination Dr. attempt gain and Dr. Hilton was a direct for the first understanding insight time question some into the sanity prior of the defendant’s to the time that he plea. entered such a say, say just
“I am simply per- frank to and I this as a expression, sitting appellate sonal Iif were as an judge reviewing such a I matter would hesitate infringement declare same a basic of constitutional * * rights. put finger The trial court his on the crux of this con- question particular stitutional when he said “this exam- by Rymer ination Dr. and Dr. Hilton awas at- direct tempt gain understanding some time first * * insight question sanity into the *.” defendant’s inquiry open I would add that into area this is not state until the is raised the defendant. Put way, attorney police another the district officers, *17 authority, may pursuant a de- examine their lawful to investigation determine fendant in of an the course people against committed whether a been crime has objective pursuit that In of of Colorado. State authority they associate which'we do have all of the police powers. on no The doctors here were with the pro- authority, inquiry, not and could such ceed as had no such powers possessing agents law of of the state officers. enforcement authority ask query, by doctors did these what single question from him or extract
the defendant a statement that is brushed aside answer, psychiatric while before defendant had had examinations object' prison, or mute, or stand didn’t in and that he compelled being answer. forced that or he was time? for the first toils of the law How about one examining grave that he was told who There is physicians doubt pur- certainly not told the was were, and he presence, pose would be the statements their how against told that-he him. He was not for or used, either anything not told which and he was answer, need not preliminary police knows is officer even any “rookie” by police authorities. Here conducted examination -at the examination: doctors said occurred is what the Testimony Dr. Hilton: questioning, you
“Q. in with is Then started explained nobody right? right. Q. And A. That’s they, purpose your then, did if visit there A. conversation? That we .the the sum and substance happened. Q. about what had him wanted to you of what sum and substance that was the Yes, but McCauley you you told him for, or were there told him right.” (Emphasis supplied.) A. That’s there for? were Rymer: Testimony Dr. yourselves you you say or introduced
“Q. And you say you you, by McCauley And name? introduced you purpose A. there for? To talk him the told you just what yes, Q. I want to know Well, him, sir. you Told you A. him there for? tell came did said. What you Q. told him. That what to talk to him we wanted you to examine Q. Yes. You told him wanted him? A. purpose you that examination? him the him? Did tell he you you if him to see him to examine Did tell wanted you A. Not tell him that? Did was sane insane? *18 in he, did Q. Hilton, did Dr. And neither those words. * * testify presence? *. your A. Hilton will be here to Dr. Q. your presence? And know, as I no. Q. A. As far In mostly your you occurred to what confined examination previous, you? night didn’t afternoon before, the or the territory.” (Emphasis No,A. covered lot we awful supplied.) The defendant’s is: they back, back, me on
“Then carried me on walked and talked to the back room and we went in there happened night mainly killings, the about the that before.' they that For an hour or an hour and a went over half Barney questioning me in and then came and started just thing killing, the as the some more about and then breaking gentlemen up, why talk, the one these couple pictures (Em- them ask me a to draw phasis supplied.) put bluntly,
To it these two doctors were there with privilege patient no restrictions as the between physician; by govern they were not bound the rules statutory appear officers, constitutional and or would (cid:127) profession. by the ethical standards of their opinion challenges majority Another statement in the expressed namely, attention, because is there no against prohibition employment psychiatrists by the operate statute, therefore, to exclude state, the does private employment psychiatrists-. How does- buy pencil authority may not a in state, that without right employ psychiatrist a law, have authority? such examine the without In power prosecution offenses, of criminal of the state pre- must exercised within circumscribed limits be scribed by constitutional procedures. It is under- my standing the reason for the statute under considera- tion was to the state give previously did not authority possess in circumstances a has person where waived certain of his constitutional rights raising in the issue of his A at the sanity permits trial. the examina- statute of a tion plaintiff physician damage civil action when the himself person puts the issue of his health and of the extent of his injuries before court. If the state now, can could, or always employ psychiatrists privately, then why the statute? And the limitations why safeguards up set in the statute connection with the information extracted from a I defendant? believe the common understanding the law that once legis- lature has on the spoken question by enacting statute in the field it becomes the authority. Otherwise set why up procedures standards and on the one hand and on the other hand hold by judicial pronouncement they followed, be may but that different other, also standards be followed if it suits the at may hand? purpose *19 have, me, We it seems to a doctrine announced in this case has kind whereby state some of inherent or undefined virtue of its power by sovereignty do or act adopt procedure; although there a law or permitting on act conduct subject and pre- exercise, scribing the manner of its can state employ or another, both, the method prescribed, adopt — result offer evidence the entire obtained under both — without distinction. such procedures Extending doc- area of one could property rights, argue trine although prohibits taking the constitution of prop- use compensation, without erty public although eminent domain are statutes on laying ground there under which to condemn rights property rules be may exercised, such laws do not operate exclude the acquisi- long means so as the other property by right tion violated. is not compensation