*1 Synopsis Support in and Supplemental Amended Motion of Affidavits New Trial: Among gleaned the uncontradicted are the fol- facts from affidavits lowing: (1) being jail Miller, Laura mother of defendant, lobby in the knowledge Miller’s after sentence without Odell, either son or them, testifying overheard a conversation between in which Odell admitted agreement falsely carry in order to out which he was to receive (Affidavit Miller.) (2) leniency the Odell implicated if he Miller. Laura Miller, defendant, had conversation with Odell after Miller’s in which sentence substantially reported made the same statement as mother. (3) (Affidavit Defendant.) Eay Bell soon after Miller’s sentence had a jail substantially in made with Odell wherein Odell the same conversation statement reported by mother; Miller and his said in furthermore, Odell nothing stealing had to do with the calves the but was that one conversation that Miller same going merely buy them, said to and Odell this same conversation Aughe up from car Odell went with him in the Odell when (that bring is, pasture admitted the two stolen calves Laird to down caught, adjoin to have tied father, Odell claims land Odell’s where to Bell.) calves.) (Affidavit mat- Bay affidavits bore on Other and left gone presenting would detail, some facts which into in need not be that ters impeach tend which would likewise impeach Odell, some tend to also Aughe attempt testify another trial and latter should event Aughe displayed a these to the effect Odell. One to corroborate passing, may be mentioned payable to him. sheriff’s check of the Aughe being Aughe’s conversation hear could where Odell testified near a calves latter delivered Miller and Odell when had between immediate gravel (admitted land Miller’s he on pit father highway home, where latter’s from, the main vicinity Miller himself and across of, gravel place lived.) where pit and the between The distance nearly sixteen the evidence is shown Odell were stolen the calves miles, would County, Yuma expanses of in the wide Even not more. if majority “neighbor” Miller, as the calves hardly make owner has opinion it. 13,135.
No. People.
Ingles The 1109) (22 [2d] P. 12, 1933. adhered June Original opinion, April Decided *2 Mr. Mr. S. O. Harrison White, William Perry, *3 plaintiff in error. Attorney Mr. L. Ireland, G-eneral,Mr. Wal- Clarence people. for Porth, Assistant, S. the lace En Banc. opinion delivered the of the court.
Mr. Justice Butler Ingles, English, alias Alexander hereinafter Alexander charged pleaded called the was defendant, with murder, guilty by insanity alleged not reason of time crime, commission of the was convicted of murder degree, and was sentenced to death. On writ of judgment, error, we reversed the and remanded the cause Ingles People, for new trial. P. Colo. 6 51, (2d) Thereupon, 455. leave the trial de- court, the guilty by plea fendant of in- reason withdretw alleged at commission of the re-arraigned, general plea guilty, entered a of not again degree, of the first of murder was convicted again to death. sentenced sought
At the defendant introduce evidence tending to show that at time of homicide he was mentally deranged. or The insane otherwise court sus- attorney’s objection to the hold- tained district offer, ing 'concerning pleas that under of insan- 1927, ity (S. p. seq.) in criminal L. c. 1927, cases et having- evidence such admissible, plea having his former entered, withdrawn lieu general plea guilty. thereof, provides That act as follows: 1.
“Section If one of the defenses of the defendant pleaded orally, said defense must be either specifica- defendant or for counsel defendant as a guilty’ tion to the of ‘not in the form ‘Not insanity alleged reason of at the time of commission guilty by insanity of the crime,’ or ‘Not reason of since alleged commission ‘Not crime,’ or guilty by at the time commission of the crime and since.’ Upon making
“Section such of in- sanity, judge shall forthwith commit the defendant Psychopathic Hospital to the Colorado Denver or to at Hospital State at Pueblo where the defendant shall may remain under observation such time as the court exceeding may judge direct, one month. The also appoint physicians, spe- of one or more cialists mental to examine the defendant diseases, dur- period, ing said the court call and examine said physicians as witnesses Either trial. state *4 may physician physi- the defendant or both cians as -witnessesbut this shall not call said or
preclude or state using physicians. defendant other plea by guilty 3. If “Section is ‘Not of in- reason sanity alleged of since the time commission of the ’ case shall be set down for on trial the issue insanity of no reference the crime. If the alone, by guilty insanity be ‘Not reason of at of the time by alleged guilty of or crime,’ commission ‘Not
522 alleged insanity time of the commission of
reason period observation, of after the since,’ of the crime and set case, be either court, of the in the discretion insanity and the issue alone for trial on Hospital Pueblo or at State to the Colorado committed jury, dependent of the or be on the verdict held case. on the main tried guilty by of in- reason 4. If is ‘Not
“Section crime,’ commission the time insanity by guilty of the al- of at the time reason or ‘Not leged crime and addition since,’ given jury form shall be verdict, other forms insanity.’ If guilty ‘Not with the words confined shall be the defendant rendered, is said verdict Hospital laws under the at Pueblo in the Colorado State governing that institution.” question act in
1. It is said that the violates three namely, Constitution; of the state article sections ¡which right provides “The trial 23, section jury section cases”; inviolate in criminal shall remain deprived person provides1 “That no shall be 25, which liberty process property, law”; without due life, provides person and compelled section which “That no shall be testify against himself in a criminal case.” pro he One who insane when commits an act A hibited law cannot be held crime. stat providing no crim ute shall be defense to charge inal be unconstitutional. v. Stras would State burg, crime Pac. 1020. One accused of 106, 110 Wash. ques pass upon have entitled raise and is tion of whether he was sane he or insane when committed stage charged. At some which he the act with given opportunity proceedings he must be to raise that question. the act of could Before guilty. general plea In order to raised under a abuses that were believed to exist avoid or lessen certain ques practice, Legislature, the act under raising changed of insan- the method tion,
523 ity, rights but left to tbe defendant all the he substantial formerly enjoyed. formerly, Now, as he can raise question by insanity, question passed upon have jury formerly, men. Now, twelve as when question properly upon people burden raised, beyond prove to doubt the defendant, reasonable charged, Now, sane. when he committed jury formerly, if the evidence in the minds of the raises time, a they doubt of the at that reasonable defendant’s of the crime must find the defendant right charged. to a The substance of the defendant’s jury insanity preserved; on has been trial only procedure changed. the provision has been The constitutional inviolability concerning trials does prohibit Legislature changing method queston insanity. raising require Nor does the ment that order to raise specified plead
defendant must
offend
manner,
against
process
due
Peo
clause
Constitution.
ple
People
204
268 Pac.
v.
909;
v.
Cal.
Hickman,
470,
767;
Davis,
206
273 Pac.
v.
94
Troche,
Cal. 35,
App.
Bennett
State,
69,
Pac.
v.
715;
Cal.
270
57 Wis.
Perry
La.
Toon,
7;
14
So.
912;
631, 135
N.
State v.
W.
v.
87 Ala.
“The act is de- insanity only special plea, fense of tried be under a require arraign- interposed to be require special ment, and verdict on this issue. This can not defense now be of ‘not introduced under the formerly supra. guilty,’ Perry itas could State, be.” And see the other cases cited above. deprived It is said that the act of 1927 the defend- process
ant of due of law, for the reason that it denied right him raise the issue at the time of except upon the homicide, he though entering himself, even sane at the time of plea, prescribed period to incarceration for a of time in hospital before trial, there to observed exam- *6 getting- purpose for of evidence either for the
ined compelled de- against the act thus and that himself; tending him- to incriminate furnish evidence to fendant self.
(a) person not of a hut al A accused custody may tem leged he taken into and insane, to he liberty subjected pro porarily and to of his restrained pending judicial of determination observation fessional seq. L. et Even under §550, condition. C. his mental sanity ques crime law, and whose one accused old and observation. to confinement tioned was person (b) who said that a is insane But is may at homicide recover his the time suggested pleading. It is that such be sane at in bar, such a in the case at was the situation temporarily right person in a hos to confine a case pital to his ascertain and examination for observation person A does not exist. accused mental condition may pending jail and while crime be confined examined to ascertain his he observed and there was insane he claims that he mental condition. Where charged, he act with which he is committed the transferring hospital, temporarily he can him to a where more favor conditions be observed and examined under existing deprive jail, him of does than able due those process of law.
(c) does incarceration and examination Such against article of the state Con 18, 2, not offend section person compelled providing that no shall be stitution, testify against in a case. Jessner v. to himself criminal 231 N. 184, W. State, Wis. during
(d) It is said that confinement such hospital person 1927, under act the accused of right crime would be denied consult counsel, place require him himself in such situation pleading of insan reason as a condition deprive ity process him of would due time of the homicide provision; no contains such of law. But that act right person liberty, and the any restrained of his except cause whatever, counsel, to consult “where danger escape, amply there is imminent secured Compiled Laws. section oppor
3. Where a defendant is afforded the tunity, as he is under the raise the irresponsibility by of his reason at the time the act committed, chooses not to do so but inter poses only general plea guilty, he cannot, under plea, irresponsibility insanity, such claim acquittal by and demand an reason thereof. But he insanity, entitled to introduce evidence of or mental de rangement purpose, short of for the *7 acquittal, reducing grade but of of the crime from degree murder the first to murder of the second de gree? Some courts hold that he cannot do so. supra. weight authority
Troche, We believe that contrary. and the better reason are to the Compiled provides, Section 6665, inter Laws, ** * perpetrated alia: “All.murder which shall be by any premeditated killing kind of wilful, deliberate and * ** degree, shall be deemed murder of the first and other all kinds of murder shall be deemed murder of the degree.” charges Ingles second The information that ‘ * * * ‘ wilfully, deliberately, premedi did and of his ’’ aforethought tated malice kill and etc. To murder, con degree, stitute murder of the first the malice must be ex press Express malice. malice is the deliberate intention unlawfully away to take the life of a fellow creature. To degree, constitute murder of the second there must be implied distinguished express malice, malice, and premedita there be must an absence deliberation and tion. degree person
To be of murder of the only killing must not be but in sane, he must have acted wilfully, deliberately premeditation. and with jury Whether is for the he so acted determine after a consider- ation of all the facts and circumstances in in- evidence, affecting at the time.
eluding mental his those the issue to raise failure defendant, A required act of manner in the he conclusively in the sense presumed be sane to the be is by rea- still, responsible law, and amenable otherwise derangement insanity or mental of some son — malice, express deliberation —may have acted grnilty not be would he case premeditation; and in such being second-degree murder first-degree murder; con- could he which degree highest of homicide victed. provides, Compiled effect, Laws,
Thus, section
voluntary
for
an excuse
shall not be
drunkenness
responsible
Though
a man is to be held
drunk,
crime.
volun
drunkenness is
la!w,
to the
if his
amenable
and
tary;
affecting
as a fact
drunkenness,
nevertheless,
proper
for the
consideration
mind,
control
capable
determining
jury
accused
whether the
requi
positive
particular
entertaining
intent
first-degree
Bren
out the crime of
murder.
site to make
People,
sanity by special plea. plea to be raised When such interposed plea guilty, with the of not the issue of in- Hempton tried State, must be first. In 111 Wis. pleas. interposed 127, 86 N. both 596,W. the defendant insanity, On the trial of the issue of the defendant was general issue found sane. At the trial of the raised plea guilty, the defendant offered evidence bearing upon degree the homi- disordered mind as special cide. the verdict on The trial court ruled that every phase issue was conclusive as to of the accused that no evidence the mental alleged or commission of the time of, before', except offense was that which existed admissible, by intoxicating liquor.” time of the offense, “caused Holding exception Supreme unwarranted, permitting special Court “No said: doubt the statute plea interposed to be with the of upon special guilty, and the trial issue place requiring jury, deciding to take first, it, render a verdict of if satisfied that the legal accused in the insane, sense, at the time they offense, entertain a question, contemplates reasonable on the doubt entire *9 by separation raised issue of that guilty, disposition and final that the trial of not preclude special fur- shall the verdict issue goes only inquiry respect that to thereto. But ther insanity excusing legal from all the accused degree of responsibility that lesser acts; for his incapable rendering person intellect disordered bearing grade forming design of his on the kill, ruling criminality. trial court erred The learned upon the material no abnormal mental general guilty, produced and other than that issue of not existing the use at the time of the homicide intoxicating liquor. permits proof of of The same rule per- bearing of malice, as on the
intoxication condition, of a mental however evidence disordered mits produced. important circumstance is the disordered The produced.” And the means which was intellect, approval language quoted of Mr. Jus- the court quoted by Hopt People, supra, Gray, that was v. tice People, supra. v. court in Brennan why is another There evidence defendant’s mental condition at homi- cide admissible. When a defendant found jury degree, murder of fix the “shall penalty imprisonment at death or life.” L. §6665. for O. determining penalty whether the death life shall be imprisonment, jury in the of a exercise sound discretion. It is conceivable the mental condition may the homicide such jury, to induce a in the exercise of fix discretion, their penalty. In California, the lesser where a defendant is permitted, gen- at the trial of the issue raised guilty, eral derangement evidence of mental introduce lessening purpose grade it is that such evidence be intro- held duced to enable in the exercise of determine, penalty death or at their whether to fix the discretion, Selph, supra. imprisonment for And see life.
529 supra, People and v. Malone, Dias, 210 Cal. 459. 292 Pac. why There is reason the of
5. still another testimony people should have been admitted. The fered two one one confessions, in evidence made introduced day days the other made two after homicide, after the is introduced in a confession evi homicide. When right has the to introduce evidence the defendant dence, making surrounding of the the circumstances of all they may taken into consider ession, in order conf weighing mental His the evidence. ation example, a For circumstance. is a material insane, or he was introduce evidence defendant though intoxi mentally deranged or was insane, not possession in full other reason was or for cated, pp. 18 L. R. A. 563; note, 1 R. L. C. his faculties. (N. (N. S.) S.) A. 788; note, 1082; 50 L. R. A. note, were made confessions, seen, 1102. The as we have L. R. the offered homicide, within a few hours after mental condition to the defendant’s related evidence well as covering made, were time the confessions homicide. the time assigns error court’s refusal
6. The second-degree view of what murder. In to instruct on concerning offered have said about the evidence we question presented now condition, mental defendant’s likely at the next trial. to arise assignment is that the court re Another request for instructions on volun the defendant’s fused respect involuntary manslaughter. tary manslaughter was evidence, did not err. Under court not involved. twice. been tried It is unfortunate case has
This excluding time; but a third the error be tried it must concerning mental the defendant’s evidence the offered seriously prejudicial to substantial so condition rights only open to us that the course defendant, of the new trial. to order suggests, present for decision, The record but does not constitutionality portion of that of the act that to vest in court discretion to seems the district try separately on the cause defense constitutionality portion per- of that of the act that guilty by if defendant court, mits be found at the time of the Hospital commit him to crime, to the Colorado State hearing without a on the upon questions passing the trial. Without these *11 suggest proceedings we that in the further
at this time, changes plea, the first herein, if the defendant by hearing’ questions all defenses these be obviated by separate hearing single on in a and the second a insanity. question of judgment is reversed, The and the cause is remanded for a new trial. Bouck concurs specially. Justice
Me. Adams
Me. Chiee Justice dissents. specially concurring. Mr. Justice Bouck, ground I the reversal of this case concur on the it was reversible error exclude evidence offered on be- insanity half of the defendant which tended to show his derangement or mental homicide, bearing upon the issue of criminal intent. I do However, [with agree opinion of Mr. Justice Butler in its entirety. rightly present As there review stated, constitutionality part does not of that involve the of our insanity 296) (S. p. apparent- L. which c. ’27, 90, ly upon discretionary power confers the district court try insanity separately defense from the main case (Id. p. §3), constitutionality part nor of that prescribes hospital which confinement in the state for a acquitted insanity existing because when (Id., p. §4). crime was committed Under regard practically part I the record in this case no of the act as now involved, aforesaid the reason that the guilty,” pro- here was “not and thereunder concerning pleas apply. visions do undoubtedly presents points Our act several of real difficulty. likely These .to some are arise time in our yet criminal so. trials but have not done No statute.in exactly other like ours; state most of indeed, these slight statutes bear but a resemblance our own. As necessary reasoning employed result, courts of particular legisla- our sister states on the varying tion before different them, facts and consti- wholly rights, ap- I tutional plied almost is, fear, fallacious if pro- aas theoretical matter to local our criminal judged light which after all cedure, must be interpretation Colorado Constitution and the deliberate proper thereof case. has This court hitherto re- degree stricted its decisions to actual remarkable imaginary controversies, ones; concrete cases problems. rather than abstract I have full confidence that it will continue to do so.
What, then, is here decided? I take First, it, the court decided has in order to obtain considera- pleaded according specially as a tion must be defense, *12 Early section 1 of our act. of that notice defense efficiency conducive to In fairness. addition, there practical suggestion that, wholesome the court changes if the defendant so as include the in- trial court defense, should exercise its discre- by submitting along tion such issue with the main case single jury. helpful coupled suggestion, Another properly points way similarly first, to a safe procedure. choice of my opinion necessary it is not desirable us present on whether decide, section of record, guaranty violates the constitutional that no criminal testify against compelled
defendant shall be himself. question may §18. II, This well Const., Colo. art. be- important plead insanity come if defendant should crime. Should be it will doubtless on the next arise disposed more thor- presented properly of after exacting present work ough amid the than consideration not now given that does a situation court could exist.
No. 13,284. et al. Mitchell
French 644) (22 [2d] P. 1933. Rehearing denied June April Decided