*1 intended parties mortgage as secure the note.
The district court placed upon the the burden company proving by clear evidence that convincing deed is mortgage. Evidence was introduced both sides. Findings fact were in favor made com- pany, judgment was entered against Ehler amount due on the note. This us review.
Tbe record presents simple case contradic tory evidence. It was for tbe trial tbe fact-find body, ing, credibility tbe tbe witnesses coming before it, well as tbe weig'ht tbeir evidence. With tbe of that tribunal conclusions we have no right interfere.
Judgment affirmed. Mr. Chibe Justice Young Burke, Mr. Justice concur. Justice Knous
No. 14,483. People County Judge ex Best, Eldred, rel. Warden et al.
(86 248) [2d] P. DecidedDecember *2 Byron Mr. Reid Rogers, Attorney General, G-. Wil- petitioner. Assistant, liams, Mr. James D. respon-
Mr. Gail L. Doyle, Ireland, dents.
En Banc. delivered opinion
Me. Justice Knous court of Pueblo heretofore A fixed his guilty pun- found one murder Arridy Joe new trial was made and ishment death. Motion for a at verdict. There- rendered denied, judgment after writ of error from this court prosecuted a Arridy and after the record af- a review was 82 P. firmed. Colo. (2d) Arridy denied and subsequently was rehearing- Motion for execution fixed for week was of November trial the defense of the In the murder death sentence. commission of alleged at the time Arridy. and since, interposed by was offense court of the county November penitentiary is located state in which county, Schwinn, Leonard confined, has been Arridy lately a com- filed Abbey City, at Canon of Holy Abbot Cross pray- plaint alleging allegation. the court on for an inquisition ing citing the above mentioned 17, 1938, November Arridy, therefor, counsel for basis proceeding here, as counsel for appear respondents who likewise for further postponement applied granted additional us. stay execution and an *3 the act under the interim the county purporting ’35 authority inclusive, chapter sections known statute,” C. S. A., commonly “lunacy pro- as the a warrant the sheriff directing issue of Fremont ceeded take into county to Arridy custody, appointed a special lunacy commission fixed time for first session the thereof. November the petitioner here, repre- sented the the Attorney G-eneral, previously who, court had county lack unsuccessfully protested its jurisdiction original filed this proceed, proceeding a writ of prohibition. we an order Thereupon entered staying further action court requiring their respondents the to show cause. Pursuant thereto answer as well as the the have respective parties briefs of since been filed. the re- allegations from the answer appears
As of the instituted the object proceeding spondents, an into procure Fremont mental condition of the end'that Arridy, Arridy “it determined that said Joe insane, if be law of alleged lunacy complaint, said duly cannot of Colorado Joe be State said executed.” primary question presented for so here jurisdic
lution is whether proceed proposed inquisition. person A tion to with the sane at time committed a criminal who was offense he and at the time of the situation here trial, which is legally has been verdict as and determined judgment trial court in murder case— during but have insane confinement claims to his become awaiting execution the death sentence—does not right absolute to trial to determine his mental expressly condition, conferred unless statute, recognition unqualified form since of such granting privilege would be tantamount convict thwarting justice the administration p. an indefinite term. Am. Jur., §48; People, Colo. 156 Pac. 800; Shank (’35 §7), Pac. 576, 247 Colo. Our c. 48, C. S. A., prescribing person insane after who becomes con capital of a viction shall be offense, until executed recovery lunacy, from the is as follows: person that becomes lunatic or after the “A insane ought of a commission misdemeanor be crime during lunacy tried for the offense continuance insanity. guilty judg- If, after verdict of and before person pronounced, ment such lunatic or becomes judgment given lunacy shall then no such or in- while sanity continue, shall if after and before of the execution lunatic or becomes *4 punishment capital, in case the be execu- stayed recovery shall be until the tion thereof person of such lunacy. all these cases from the duty impanel try of court to it shall be question whether the accused be of im- the paneling at the time ’’ lunatic. insane or People, supra, determined v. that this We only departed from the common law the con- statute 338 sentence of the section to the
eluding
relating
impaneling
aof
jury.
under
Supreme
Illinois,
Court of
identical with
conclusion
ours, announced
same
People
Preston,
v.
345 Ill.
N.
common
11, 177
E. 761. At
an
law
of
mental condition
a person
crime
convicted of
under
of death,
sentence
hut who it was
alleged
become insane since rendition
was under
control
judgment,
trial court and
that court alone decided when an
war
inquisition was
ranted.
4
v.
395; Nobles
Commentaries,
Blackstone’s
p.
Georgia,
168
U.
398,
S.
18
42
Sup.
515;
Ct.
L. Ed.
87,
People
Preston,
v.
supra; Ex
parte Chesser,
190,
Fla.
This collateral
merely
an
to the
proceeding
appeal
the court
humanity of
execution. Laros
postpone
339 Sup. 87, 18 Ct. 168 State, 398, U. S. in Nobles v. affirmed 42 L. Ed. ; E. 443 112 S. 382, Ga. 37 515; Sears v. 53 L. R. A. 58 Pac. 403, 248, Wash. Nordstrom, State v. Ferguson W. 472, 317, 115 Ark. Martineau, probate Ann. of the 1916E Cas. inquisition proceed case of with stat said that an Arkansas character was denied, was probate inquisition by sanity providing for a ute chapter court—generally to sections 1 similar purports court here under which the A., ’35 C. S. solely purpose pro proceed—was enacted persons rights property tecting of insane civil and determining the issue whatever no reference sanity been convicted and sentenced who has of the one already for a criminal offense who to be executed substantially purpose. custody To law that 25 N. M. Pac. Smith, effect is In same re A. L. R. 83. has made since our statute follows that,
It, therefore, change have indi other than common we law no Pueblo save the cated, no jurisdiction to held, trial has murder in which the inquiry condition mental into the make solely initiating with of an and the: in the discretion Indeed, court. the use of definitely sentence “court” in the last word proceedings con of the character here under shows sideration must be Concerning
had in trial court said in so conferred we discretion supra, page at 193: “Thereunder when suggested alleged the court or cases is prisoner’s by public may the condition of mind inspection either personal or him, examination attending physicians, by inquiry private; from from knowledge; prisoner means of who have around the those investigation inquiry, judge after such and if, sanity prisoner’s he neither no doubt bound Pl. & Cyc. Prac., to nor an inquisition. he order should *6 & Dec. Bonds v. Tennessee [1 1220; 143, M. Y. 17 Am. p. 795]; Nobles v. Georgia [168 S. 398].” U. that the convict is the trial court
Where believes or it has a it sanity, doubt his perhaps, question. v. must and impanel jury try People, supra. state such right, authority this no discretion conferred the county is court by any to no and case, by statute. attention has been called Our diligent none, search we discovered wherein has by statute—that provided been held—unless otherwise than any court, other that before which the principal trial was held, has discretion order an inquisition the mental condition concerning capital under to the subsequent pronouncing of the principal judgment. v. People, Turley
Neither
73 Colo.
216
536,
Pac.
People, 75
nor Sherrill v.
We are of the opinion also, that the complaint filed case is in wholly sufficient to justify this character even if that court had The jurisdiction. urged defense conviction in the against his trial of murder mentioned, we have was that case, as he insane. This against issue was found him and trial affirmed and the The complaint in the: alleges merely status of insanity aver does that so insanity pleaded a condition which has arisen since the is conviction, invocation of our prerequisite statute; consequently apparent pleading as a matter whether, it is from that presented old defense al a. or the new issue is fact, again ready adjudicated against asserted. convict defendant asserts he “Where, after conviction, applica postponed, insane that sentence be asks subsequent tion arose should show that such especially where to defend conviction, against ant’s was at and found him issue p. supported the by trial.” text main 1283. This C. J. People, supra; State, the cases of: Shank v. Lewis v. Springer 419; v. Tex. 155 Miss. So. Cr. Potts, 49 La. Ann. 22 So. 99; v. 266, 140S. W. State Hays, Brinyea, 241; 5 Ala. Commonwealth 738; State fallacy of the Pa. Atl. 728. contention *7 equivalent is effect an averment of allegation that to an the convict has insane since become clearly by opinion is demonstrated the conviction, supra . of the case Lewis v. county conclude that therefore, must the court of
We, jurisdiction proceed county without to with is inquisition prohibition pending the of and writ ac- the cordingly allowed. Mr. and
Mr. Justice Mr. Bouck Justice Hilliard, Justice Holland dissent. dissenting. Holland Justice opinion my petition prohibi- that the for a
It writ premature The distinction tion in this case. between proceeding' an a for under section chapter proceeding’ a ’35,O. A., and under section clearly kept chapter A., should been 48, ’35, O. S. have granting the error made in as writ, in mind to the avoid majority opinion herein. I the am the order follows county county contending the court of Fremont through lunacy proceeding, jurisdiction, a without di- from the district court to rection the sanity, end that court, to the it, could, stay on it, an a finding order entered heretofore entered of execution order existing this in effect affirmed the district filing proper upon contend, however, I do it is manda- 3, chapter 105, supra, petition section inquisi- with the tory upon judge proceed any available this statute are tion. The benefits of in- county. found within the results or effective any attempt make it quisition such other our For any anticipation. case is within county court was prop- purpose, jurisdiction interference with there no invoked and could be erly If direction thereon. statutory proceed a duly appointed pursued authority court had its defendant we commission had found aught ended Had at- might know the matter there. an have order such tempt upon rely upon been finding made order interfere with or stop existing based thereon, I district think court, grounds execution been afforded. prohibition writ would have ’35, A., reading as 15, chapter 105, Section O. S. crime.—No shall charged inquest “Persons with follows, with lunacy person charged criminal shall have criminal offense until such offense tried been unless dismissed, judge pending such offense is shall wherein relied been seems inquest.” order making defendant such a majority opinion *8 deny to rights provided ward him by of the court It cited. clear that the above is the sec- lunacy statutes a quoted tion with criminal just solely has to do pending A desirable effect of that the charge. statute is of in criminal case cannot be built defense a up invoked in the successfully forum court in another the criminal charge. of When jurisdiction having in the trial either court, proceeds suggested is towards that of the question a determination directs forum be tried. All that matter to of this relates to prosecution proceeding. the in a criminal defenses guilt question the the bar, at case defendant’s innocence not to determined. It be the ma- is said opinion jority petition in that the court allege not that does defendant has become imposed insane between the dates sentence that allegation necessary of its execution. That would be petition presented a to be the trial court, that tois, county. petition district court of Pueblo a Such allege trial court should facts that could, discre- operation invoke court, tion of trial statute. majority opinion person claiming a states that during awaiting have become insane his confinement exe- “ cution of the death right not sentence, does an absolute present to a mental condition, trial expressly recog- unless it is conferred statute, since right unqualified nition form would tanta- be granting privilege thwarting mount convict justice administration of an indefinite term.” construed in Our the case of right 156 Pac. Colo. confers absolute question sanity may have the determined. It be de- termined if the not in other- doubt, is- wise must be ordered.
Assuming stay of execution of the that a death sentence except by can be entered court, and then only finding after or under its it, that direction, become insane after are we say finding* insanity by a commission duly appointed by county, of Fremont hearing would be admissible in evidence on a on might before the trial court? counsel Zealous something with well want be armed more than a mere insanity, suggestion applying when to court easily relief, this humanitarian located what could prejudiced community. an inflamed and Are we then say legitimate that a further to obtain evidence so, If to be denied? are there when instances *9 I denial, will not to such justice myself insecure. lend counsel and particularly where, here, others, prompted only, clearly as it inclinations appears, feelings and most a fair man, legitimate creditable are making* effort to prevent the cold tragic taking, by people, of the life of an admitted mental an imbecile incompetent, now birth, since friendless without penniless, and of what is about conception to occur. What manner man is who can be he, party to event brings shame fair name law? are My feelings of no lesser degree than if this unfortunate creature of my procreation, race and I my one kind. do not want as a specter future intrusive visitor.
Mr. Justice Hilliard and Mr. Justice Bouck concur dissenting opinion. 14,140.
No. Attorney People ex rel. Ellis. General (86 247) [2d] P. Decided December Byron Attorney Mr. G. Mr. General, J. Rogers, Luke Pierpont Kavanaugh, Deputy, Jr., Assist- Fuller, ant, petitioner.