*1 16,023. No. People. v. The
Schneider (199 873) [2d] P. Rehearing 1948. 1948. denied November Decided October Royal Smith, Mr. plain- Mr. J. Corder Duncan, C. in error. tiff Mr. Attorney General,
Mr. H. Lawrence Hinkley, Deputy, S. Mr. James W. Henderson, Duke Dunbar, people. for the Assistant,
En Banc. *2 opinion the of court. delivered the Mr. Justice Alter In an information filed in the of district court Wash- ington county, charged Paul J. Schneider was with the September murder of one Frank Ford, 20, J. on 1947. indigent, appointed Defendant was and counsel was Upon arraignment, defend him. entered a defendant plea guilty, guilty by insanity of not and not reason of alleged at the time of the commission of the crime and since.
Upon jury trial the returned a verdict of murder in degree the first penalty and fixed the death. re- at To judgment view the upon entered that verdict, defendant prosecutes a writ of error. appears entry
It from the record that the of the plea guilty by insanity of not reason of at time of the alleged commission of the crime and since, the court committing entered an order to the State Hos- pital period at Pueblo, Colorado, for observation for the day of a month. Thereafter, and on 6th December, hospital physicians three Reported 1947, of to opinion court that in their Schneider at was not insane the time of their examination nor was insane at the alleged time of the commission of the crime. January on 19,
The set for trial 1948, case was at the day January, which, on 1948, the 23rd conclusion jury returned its as noted. verdict Within the time court, allowed counsel for defendant filed mo- alleging trial, tion for a ten new errors committed dur- ing the course of the trial. motion for a new trial February argued on 13, 1948, was at the conclusion of overruling entered an order court the motion sought pronounced judgment reversed to be here. following on behalf
The record discloses night September 1947, people: On the filling operating owned station Frank Ford J. Brighton in Den- Boulevard himself located on son, filling- usually at station ver. returned from the Ford r'eturn he failed to and, about 11 o’clock when P.M., alarmed and notified the police. Mrs. Ford became usual time, response call, went to her officers, Some filling open there, car and Ford’s station, found it money gon’e, in the cash but Ford was and all indications with therefrom, drawer had been removed night September 20, that it had rifled. From the been nothing until his of Mr. Ford seen heard county body Washington more than was discovered thirty days later. *3 pos- September,
On the 20th of Ford had in his 1947, pay- session $40.57, as a cash item a check in the sum able to the on the order of Elmer Bloom and drawn Company by Bank & Central and Reed Green Trust Planing payee check Mill, which had been cashed at Ford’s Service on date mentioned. Station above On October Bank Trust Com- 8, 1947, Central and pany received the Bloom check for collection from the Kentucky, bearing Bank Pikeville National of Pikeville, the endorsements of Paul Bloom and Paul J. Schneider. Company The Central Bank and Trust honored the check and remitted the a thereof, amount less service by charge, Kentucky to the bank. It was known possession check officers the Bloom was in Ford’s September disappearance. on at the time 20, Kentucky police police cooperating officers, with the Denver accompanied by agent
and an from the Federal Investigation, Bureau of vestigating who had theretofore been in- pertaining report-
Schneider’s activities automobile, to a edly apprehended stolen Schneider when he pro- Pikeville Bank called at the National to receive the ceeds of the he interrogated, Bloom check. Upon being denied all check of Ford and claimed that the knowledge had given been him Denver as party purchase price of a and on the radio. Subsequently, morning October made a full 22, 1947, and complete confession of all of his and around activities on Denver September to an 20, 1947, Fed- agent eral Bureau of and the Chief Investigation Deputy Sheriff of Pike county, Kentucky. Subsequently he re- peated his confession to Captain James Pitt and Detec- tive Joe Holindrake, officers from police Denver, and several citizens from Pikeville, After defend- Kentucky. ant was returned to Denver, and on October his confession was repeated in the presence of Captain Pitt, Detective Holindrake, and All Sergeant Duffy. the officers testified that defendant’s confession was free and voluntary, and this is undisputed.
Defendant’s offi- made to these various confession, on cers occasions, and, pertains different far as it so thereto, defendant’s activities in Denver and subsequent is substantially as follows: stated Ford’s day disappear-
Defendant Mr. sometime ance, he had arrived in his car in Denver for several right after noon. He drove around Denver hours, looking for a to “stick likely place up,” finally decided to leave Denver After dark go into Nebraska. out filling drove Route station and passed shortly afterward around and .came back to the turned station. When he returned had filling lights some of been out, Ford, turned who sta- operating tion, evidently closing. When he drove Ford *4 came he out, his on Ford and whereupon pulled gun told him he wanted his and trouble money any didn’t want He then got with him. out the went into car, took Ford’s and office, money billfold what was in the cash He register. billfold and in wrapped money a station, cloth found took filling Ford out and or- him to car out on dered drive the Route 6. After thus driving stop the Ford to distance, a he ordered short put continued to trunk, he and car, and then him the driving he some distance drive on Route After out 6. gaso- get “all-night” filling stopped some an to station previously intended he he line, but had told Ford that give stop gas or alarm to and Ford to no that having stopped. outcry make After while he was approximately head- Denver, from driven lights miles bridge a abutment, car or shone bridge stopped. he and There- itself, and slowed down right highway on a sort of after he drove to a car lane or small for a of about two road distance lengths, again stopped, alighted car, from when he opened pulled Ford and him trunk, out, ordered rag money take the and billfold had been placed himself, and told him to blindfold then walk bridge steep rather down a ditch or creek bank under highway, so he b'e seen from that could not disposition up make his mind what there tried while said, he he had never because, make of Ford just what to he know man before and didn’t harmed a thinking time be de- for a him. After it over do with an iron bar Ford the head with cided he would hit over possession about the which he in his and which was had decision, He carried out his circumference of nickel. ground doing Ford fell so used both hands. for a but then arose and time, down short remained staggered The blindfold at defendant. sort toward eyes so defendant de- time had fallen from Ford’s place. away At this time a cided to take him from coming from direction and a car truck from one lights opposite He told Ford to down so the direction. lie him, on not shine and Ford of the car or truck would got on all About the time the truck went down fours. suddenly up, picked up raised a rock hard Ford whereupon piece dirt, it, and struck defendant with He then an- Ford, he fired at who started to run. fired him Ford, after which saw no more, other shot at *5 but heard him He car running away. backed his out onto the highway and proceeded easterly.
Defendant first confessed the murder of Ford on the morning 22, Pikeville, October to officers in 1947, time, and at the as a Kentucky, and his confes- part sion, he related similar two he had com- crimes which mitted in Michigan 20. This subsequent September entire confession was other subsequently repeated officers as we have record, noted. to the According Schneider’s confession of the other similar sub- crimes is stantially as follows:
On of October Pike- night he drove from ville, Detroit, he Kentucky, Michigan. hearing As he Detroit decided he would a “stick pull up” of another service He a station. station around passed probably 10:30 that near a night parked Detroit and noticed car there so continued on and went getting gas, way he his into Detroit. There he an hour and approximately spent then returned station, to this station. He drove into the where one duty. attendant on attend- He told the ant, is a “this stick and leveled up,” him, his gun say- ing that he wanted and money he didn’t want any trouble with He office, him. then went into the obtained and money there, valuables and told the attendant to turn off the lights so that no one would drive in while the “stick was in up” progress. attendant replied if he turned off lights, another man duty on would be awakened. then deciding Defendant that he have would to take the him, attendant with placed him in the trunk of car and locked it. He proceeded off which the highway upon main station was located and for drove several miles. He never had been in that vicinity before was unable to give any exact de- scription the roads which he He traveled. drove off the main highway, pulled attendant out of trunk car, him intending to tie up and leave him, but the attendant resisted being tied he up, and him struck across the back the neck with an iron rod. The at- ground, him second he struck fell tendant pulled body the road off after which time, placing part over it of a trunk tree distance, some *6 and Detroit then drove back toward it He left there. city. filling time, this a station near that At entered “sticking up” sec- this stated, he he had no intention buy going however, tire; a used station, ond but was up.” the “stick make there he decided he would while pulled gun him a it was a on the and He attendant told placed up.” in the trunk also he “stick This attendant highway a distance car, drove off of his second service station he took the miles, several where not that it would trunk, attendant from the but decided if so he him, to release because he did would be wise the authorities information which would furnish with previous implicate up” “stick Detroit. him near with furnishing prevent alone, reason For this and away he decided he would do with information, this an man, rod, whom he hit the head with iron this over body, got and car, into continued on into left the his He had Detroit. stated that he knew that he killed the attendant. second in
Defendant, confession, his described the location bridge highway on the struck where he Ford description he and from shots, where fired the this body officers were able to locate Ford’s in an enclosure practically highway, 200 some feet from hidden from by body highly decomposed weeds. The in a con- autopsy an dition, and, thereof, because did not disclose by positive of a wound caused a but firearm, by did disclose that death caused a concussion and physician performed basal skull fracture. The who autopsy injury by testified that the inflicted the blow head caused death. on the Ford’s person his arrest he had on of defendant’s the time
At pistol cartridges Savage ten automatic with caliber a 32 pistol clip, in a shoulder holster. he carried and a which gauge possession tire which he ad- also a in his hadHe to, mitted other was identi- belonged witnesses fied as one owned of Denver by, Ford, copy newspaper, dated he had September 21, stated purchased for the there learning whether was any item news therein with reference to the Ford “hold He had up.” which belonged articles Ford and which, according to were in evidence, Ford’s possession at the time the “hold At or up.” near the bridge on the highway where the shots were fired at Ford, was found a caliber shell which an expert testified was in fired on pistol found defend- ant at the time of his arrest in Pikeville, Kentucky. did but his stand,
Defendant not take the witness brother Edward and a sister were called his Dorothy behalf. him testified to suffered They injuries accidents received during childhood, and as to others him in August, an auto According accident. *7 to these witnesses, in the auto in occurring accident August, defendant suffered a fractured skull and his arms and hands were lacerated, stated that they neither of them was him permitted to see in hospital the the first three days he was They there. also testi- fied that defendant to them stated that he did not know how the auto August accident happened appar- but that ently he went through windshield and on laid of the edge highway for approximately six hours. They further testified that he had some injury to his head, and that, as a result of this injury, seemed defendant and upset, nervous and stated to them that head him hurt and that he was dizzy.
The called the defend- who attended people physician ant for in August, 1947, incurred auto injuries that accident, who testified defendant’s admission he shock, was from but that hospital suffering whatever, there were no complications and the only would infection prevent treatment was such as required in of the lacerations. This physician denied tes- brother and timony sister, of defendant’s that visitors no days permitted were see defendant for the first three hospital, he that visitors while were but stated brought permitted At from the time he was there. discharged good the time physical he defendant was complications. condition, with no brain or other physicians The three who observed defendant at the Hospital thirty-day period State for a de- Pueblo alleged termine whether was insanfeat the time of the gave, subsequent thereto, commission of offense and opinion as we have noted, their he was not at the that time of the trial insane and was not insane at the time alleged of the commission of crime. jury returned a find- noted, as we have verdict, degree
ing guilty of murder in the first fixing penalty at death. only assignments which, error, one of
There are five relating seriously urged, to the viz., however, is particu- entire confession of defendant’s admission com- larly part he confessed the thereof in which Michigan. in the state of the two crimes mission Michigan Concerning crimes, counsel evidence following instruction, which tendered the for defendant give: refused to the trial court alleged testimony concerning crimes
“Certain has befenintroduced in this committed the defendant case. only requires which tends to law
“The charged prove crime element of the material be admitted evidence. information testimony concerning alleged said other crimes “The *8 nothing had that said crimes whatsoever to' do shows charged particular information, crime in the with the testimony probative said has no value and, therefore, whatever. accordingly, disregard entirely are,
“You instructed to concerning other crimes.” all evidence said the reference All evidence with to the crimes commit- Michigan by by people in ted defendant was offered the for the “only purpose and the court admitted and and design scheme, showing intent, plan of the Colo- in the commission motive the defendant now will come crime; rado that this which testimony is, When defend- will offered for that simply purpose.” murdered ant and that he freely voluntarily confessed and Ford on in the same confession 20, 1947, September confessed voluntarily the same time he and freely thereafter, that had and a short time subsequently, committed two similar the state of Michigan, crimes in and that in sub- crimes were Michigan perpetrated stantially the same manner and for like purpose was that evi- committed in the murder of Ford. When' dence of the crimes was offered as one Michigan part confession, ir- defendant’s counsel thereto as objected relevant immaterial also as prejudicial in inflamatory. court, overruling objection, stated that the court would instruct as to jury of the purpose admission of the of other testimony crimes and the limited use make of such might that in evidence its deliberations. The instruction given by the court and to which defendant read: objected
“You are instructed that tried being defendant solely upon charge alleged the information. admitted in has been this case of two
“While evidence other crimes to have been committed the de- alleged fendant the state of such evidence ad- Michigan, motive, mitted for the solely showing intent, of the plan, design, alleged defendant com- mission of the act charged information. Such considered you is to be for the indicated and under no circumstances purpose only, are you consider it for purpose whatsoever.” for
Counsel rely rule general evidence is inadmissible which shows, that or even tends show, defendant has committed a crime wholly offense independent he is on but trial, recognize also there are they many ex-
553
ceptions
this rule.
exceptions
In Colorado we have held that
general
equally
rule,
some
to the
well-
competent
as the
are
itself,
settled
rule
that it is
to show
specific
partici
that defendant on trial for a
has
offense
pated in similar
in order
establish
crimes
either
plan, design
motive, intent,
scheme,
and to establish
identity,
defendant’s
sible
guilty
and such evidence is not inadmis
merely
because it
is
establishes that defendant
People,
of another crime.
43
107,
v.
Colo.
Warford
Jaynes
People,
556;
96 Pac.
v.
44
325;
Colo.
99
535,
Pac.
People,
Hillen
59
v.
Colo.
149
280,
250;
Pac.
Bacino v.
People,
(2d)
Rogers
People,
5;
104
90
229,
Colo.
P.
v.
(2d)
People,
594,
104 Colo.
94 P.
453; Coates v.
106 Colo.
(2d)
People,
106 P.
483,
354; Torbert
294,
v.
113 Colo.
(2d)
People,
156 P.
128; Paine v.
fendant of murder, and, for the jury’s sole questions plea, of this entry and the pen- of murder degree were the determination *10 that should determine in the event it to be alty inflicted degree. murder in the first admitted crime was the of which evidence confession, made a minor, a Reppin, he admit- In his confession introduced at the trial. Jersey in in New a “stick-up” ted some participation of some plan a “vision” acknowledged and also a “gang” of organization reference the scheme with to Hotel in Broadmoor for of the holding up the purpose in con- an abandoned plan and also Springs, Colorado in of the “Pot and Spigot” nection with the “hold up” a of burglary Colorado He also admitted Springs. in and his par- Colorado Springs, business establishment in several other there. These state- ticipation holdups in were ad- ments, confession, made defendant his evidence, mitted in and when he took the witness stand behalf, in his own in answer to propounded questions him district counsel and appointed deputy attorney, made substantially the same statements those contained in his Justice Butler confession. Mr. delivered the opinion of the reversing judg- court the jury, of on the verdict ment pronounced degree of murder in the first guilty the defendant found recognized The court death attached. penalty with Hillen supra, v. People, rule announced Warford Jaynes People, supra, v. but ob- People, surpra, not court, although the trial so requested served limi- as to the do, jury purpose failed to instruct offenses,' admitted evidence to other relating tation of the reference thereto said: with court erred the chief of permitting police “The objection, over defendant’s to the defendant’s testify, reference to his ‘vision’ a concerning statements with the Broadmoor and those hotel, with reference holdup to the Pot and incident. No nor Spigot occurred, holdup That does come attempted. testimony was one even not of evidence excluding the rule exception within and reversible. The error was prejudicial other offenses. of were county in El Paso “The offenses committed suf- they were charged; the crime the same character as require- time to meet the connected of ficiently point may reasonably motive law; and the same ments bore upon evidence all. them be imputed thereof and the Regan with which the shot intent but admissible, and was act, motive that prompted intent and such determining only motive, evidence was not rendered Such [citing cases] the trial was upon plea fact inadmissible It cannot guilty. instead of not plea guilty guilty that as a raises plea contended successfully ad- intent, issue evidence is not no offenses missible to show intent. If such were the case, *11 homicide itself would not be admissible of the because such a admits the homicide. plea guilty, plea is not the law. When such That, course, evidence be would admissible where the is not it is plea guilty, admissible where a defendant and evidence pleads guilty is to a under section jury 6665, supra submitted [section ’35 chapter 48, C.S.A.]. evidence was such “Although admissible a limited for did either only, not, the court when the evi purpose or- instructions to the jury, received was dence for which it was admitted and the it to purpose limit alone it was admissible. for which grave danger to the attention called have “We the may misapplied offenses other and have said that accused, the injury the jury attorney offered the district is such evidence when and that offered, for which it is the purpose state should limit to the trial court should it the is received it when in this case no True, admitted. it is for which purpose counsel for made by appointed it was so limit request not held that in such cir- have and we defendant, so the evidence failure to limit cumstances the court’s here- have had occasion reversible error. But we not the defend- here, tofore to consider the effect where, ant is a minor.
[*] [*] [*] “In a homicide where the is whether a case, question minor be, defendant shall live or it should and we die, court, hold that without is, duty, request, to the which evidence explain jury purpose other offenses admitted, jury to direct it for that consider purpose only. limited failure of court this present highly was respect case to the prejudicial and was reversible error.” defendant (Italics ours) In the instant case crimes, evidence of other similar which defendant confessed he of- committed, had confession; fered admitted as part of his the district attorney, time the offered, evidence was stated for which it and the trial court offered, in its to the jury instructions limited specifically evidence to such purpose.
In v. People, Williams was found supra, defendant of murder of the second guilty degree and of concealing the death of a bastard. She had made a confession which she stated that there were other two children, named in the than one information, been had to her, and she born had drowned all three of the children and had made the same of their disposition words, bodies. in her confession ad- mitted the murder of two children other than that of one charged in the information upon which she was to *12 be tried. Her objected counsel to the admission of the evidence contained in defendant’s confession to relating the of the two other death With children. reference to the admissibility of this evidence, we said:
“Error urged admission of evidence of other Our offenses. attention is particularly called to four objections or motions with regard to such testimony during The first the trial. of defendant made in behalf the evidence of the from a motion to strike these was any testimony deputy child relative to coroner assistant There had information. one named in the than the other finding repeated of the three the evidence as to been objection by and this other without bodies witnesses impossible intermingled to was that it evidence was so prove bringing upon also out the the case relied without finding other This motion objection to of the bodies. facts as the properly an to second was was testimony denied. The following city pathologist his answer
of the brought bodies that he had to examine babies’ occasion just externally; morgue; to looked at that ‘two question autopsy Then he made an on.’ was third body,’ asked, ‘Describe condition that this objected was to defendant’s counsel. There was no objection objection. third an to merit that confession, admission written and the of defendant’s motion that the be withdrawn awas confession fourth disregard jury on the it, both instructed and ground separate three al- involved
that the confession leged merit, were without under the rule These crimes. contains a mention another ‘where that confession accused,’ ‘allusion to in his crime committed may part must be listened to it is a if of at confession confessing the crime charged statement entire the one (3d ed.), p. 497, Wigmore VII, vol. on Evidence bar.’ (e). §2111 objections specific beyond made coun-
“Going only study all the record the evi- a careful sel, from involving can refer as counsel which dence finding concerning condition of crimes the bodies other than the one the two babies attempt prosecution based. No was made prove criminal intent of defendant in charge or older bodies. In addition to the the two with connection intermingled was so that it was this fact regarding finding proof make impossible to *13 two, other finding body showing one without ad- earlier babies was the two concerning the evidence in the crime in deliberation otherwise proof missable of tragedy hysteria rather than charged, of frantic plan in a preconceived and also proof inexperience, of preg- case offspring disposing of of defendant’s of her resulting amours. nancy from “Error its gen- waited until urged in the court of evidence eral charge to instruct as to the application for the finding of the other bodies the purpose to which it immedi- instructing was admitted, instead of so ately upon its admission.
“In general its instructed charge the court properly the jury as to the limited which this was received. No motion made defendant from time time as the the court evidence was received that on instruct such evidence application pur- pose for which it was it is advis- admitted. Generally able upon tender of such instruction it at give time; some however, there be pre- must sumption intelligence jury proper instruction given at the end the case than at rather the time the evidence is received is error not prejudicial (Italics ours) [citing cases].” careful consideration of our decision in Rep- From a pin People, supra, and Williams v. People, supra, we are persuaded in this jurisdiction when a defendant with a criminal charged offense, even though that of- fense murder, be makes free confession, voluntary either oral or written, which he his guilt admits the offense and in charged, the same confession and at the same time admits that he participated in and com- mitted other similar offenses, such confession is admiss- ible in evidence and is relevant and may considered jury bearing upon the intent, motive, plan, scheme and design establish commission of the charged. crime When such a confession is offered in its pur- explain attorney entirety, should the district pose than that offenses the evidence of charged instruct should offered, *14 is and the court is jury and that it of the evidence to the as If other offenses. of such in its consideration limited Rob- procedure error is committed. no followed, this v. People, 637; Silliman 11 17 Pac. 213, erts Colo. v. Rogers, People (2d) People, 793; v. 114 162 130, Colo. P. People, 259, Ill. 162 135; 85 331, 192 Y. N.E. Gore v. N. (2d) Hurry, People 52 N.E. 486, 44 385 Ill. 500; v. N.E. (2d) Dalton, 147; 63 State v. 173; S., v. F. Robinson U. 323 Gable, Commonwealth v. 590; 43 86 278, Pac. Wash. Hipple, Pa. 333 393; Commonwealth v. 449, Pa. 187 Atl. (2d). Knapp, 71 380, 70 St. 33, 353; 3 v. Ohio Atl. State Sup. 340, 142 Ct. 705; Pa. Wood, N.E. Commonwealth v. (2d) Atl. 191 319; 529, 16 122 Conn. Palko, Atl. State v. Kelly, (2d) 533; Grove 320; 6 627, State v. 16 N. C. S.E. Bishop’s (2d) New 348; 2 185 Md. 45 A. State, 476, v. Wigmore p. on Evi- §1241; Criminal Procedure, 7 1059, (3); Criminal (3d ed.), §2100 p. 2 Wharton’s 497, dence p. 425, (11th ed.), p. §606; Jur., 20 Am. 1012, Evidence §488. by appointed the trial for defendant were Counsel They represent him here.
court, and have continued untiring and have behalf, his and have been assiduous They every right af- safeguarded the law. under his every protection. have care- We, too, forded their client fully all considered and have examined the record assign- during objections the trial as well made a fair had and find that defendant here,' of error ments guilt impartial established trial, beyond any commits one who It is the law that doubt. penalty suffer the here, must as did defendant murder, jury. prescribed accordingly judgment and is ordered affirmed, it commencing during Decem- the week executed it be
that ber 12, 1948.
560 Hays dissent. Hilliard Mr. Justice
Mr. Justice Hays Mr. Justice dissenting. opinion
I from in this case because dissent court’s prejudicial it, I intervened, error as view proof of two reason the admission in evidence alleged unrelated and crimes been disconnected have Michigan subsequent committed to the defendant in one involved herein.
We have held such admitted, evidence should be great only if at all, with caution and it is in cases where clearly (Dockery relevant to some issue involved v. People, 220), 113, 74 Colo. Pac. where prove “tends to some element the one for which the being Jaynes People, accused is tried.” Colo. *15 People, 543, 325; 99 Pac. Coates 483, 488, v. 106 Colo. (2d) 106P. 354. People,
In Wood v. 60 151 211, 213, 941, Colo. Pac. evidence was admitted of other transactions and wé re judgment “wholly versed the because such evidence was simple proof irrelevant, for the reason that their was not * * necessary essential, or in Reppin wise v. People, (2d) 95 Colo. 34 P. 192, 71, we said “incom that b;e petent and irrelevant evidence should excluded” and, quoting Jaynes People, from supra, v. such stated, “that [of prejudice offenses] tends to create a jury; in the minds of the but of this he will not be permitted complain competent if the evidence is rights safeguarded his gested.” are sug in the manner we have ways, rule has been above stated in various but clearly never People, more set forth than in Hamilton v. 307, 87 Colo. 287 Pac. 310, 651, Mr. where Burke, Justice justice, delivering opinion now chief of the court, true is “The rule that said: tions evidence of former convic- may or other offenses not, in the first instance, be
561 directly indirectly introduced if not material and relevant to the in issue.” fact
Concerning Judge speaking the same rule, Bliss, supreme (Iowa), court of Iowa, State Rand (2d) A.L.R. 300, N.W. 800, said: “The basic rea- excluding proof [for son crimes] of other is that ordinarily proper commission of another crime has no relevance commission of the crime for which the being may defendant is inal and tried. One be an crim- habitual yet innocent of the crime for which he is in- being yet proof dicted and tried. And of an inde- pendent logically may crime while of no relevance, juror readily incline the mind aof more to the belief might that the defendant have committed the crime charge. with which he is under For this reason courts vigilant should be in the exclusion such evidence of when it without relevance or there is doubt its fair admissibility It is relevance. thus seen that the such testimony is all a n matter relevance. The ad- test missibility is the connection and relevance facts proved charged—whether with fairly offense prove particular tends to or an essential offense (Italics supplied) element thereof.” In 20 prose- Am. section Jur., 316, we find: “In a proof cution for one crime of another direct substantive legal crime never admissible unless there is some connection between the two, which it can be said one tends to establish the other or some essential importance fact in issue. The courts stress the requisite prejudicial this due nature and char- *16 question relevancy acter of such evidence. The of obviously light one decided in the of the facts and particular circumstances in the case.” 311, id., Section excluding the statement: contains “The rule evidence of the commission of other offenses the accused in a showing criminal case for the of the commission particular charged of offense with which he is does deprive right of not state its to make its out whole against any
case the accused on which is other- evidence upon guilt wise relevant the issue of the defendant’s of charged. making proof, In crime with he is competent prosecution put it is for the in evidence all facts relevant and circumstances which tend to estab- lish of the constituent elements of the crime with charged, though which the accused is even such facts may prove prove and circumstances or tend to that the defendant committed other crimes.” “ ** * page In 22 C.J.S., section it is said: charged, where is not intent of the essence of the offense or is not an element thereof, or is immaterial or not in- or volved, where accused is not shown to have some connection with other offenses, or where the nature proof of the offense is such that of its commission as charged implication presumption carries with it an or charged characterizing of criminal intent, the act perpetration attempted per- offense, evidence or * * petration of other like offenses inadmissible, subject exclusion similar-fact evidence is the scholarly of an extensive and article Julius Stone origin Review, Harvard Law 998, wherein the development carefully the rule of exclusion is treated, leading analyzed. pointed authorities It is there out “perplexing variety holdings” by many “disregard courts is origi- due to of the basic test of — namely nal rule, is this evidence relevant an issue propensity?” other than light foregoing
In the authorities it is thor- oughly admissibility established that con- cerning depends convictions or offenses proves prove whether not such evidence or tends to some essential element the case on trial. present only case defendant confessed not
committing alleged the Colorado crime, but also the two Michigan delivering crimes, and Justice Alter, opinion only question said in court, effect: “the our determination is whether the entire confession is ad- *17 only part confession, of the or that whether missible directly pertaining admissible to murder, Ford’s pertaining part mur- to other that of the confession with determining we this case In ders deleted therefrom. carefully all decisions called have read and considered many other de- our defendant well as to attention as great diversity opinion of find that there is cisions. We admissibility have confession, to the of the entire but as jurisdictions the in this concluded that question and some adversely to the defend- been determined has contention. ant’s diversity opinion
As or not of else- to there is whether admissibility respect the entire con- where with to the of question I fession, we as concerned. The not, it, are see decisions of this is set at rest in the above Colorado weight judicial which are with the court, consistent authority por- effect that all relevant elsewhere, to the and all irrelevant tions parts said confession are admissible relevancy No other than
thereof inadmissible. test justified permitted our decisions. under opinion majority cites the case of The court authority proposition supra, Reppin People, for as be admitted and that confession must all said that none thereof interpret may I excluded. do not so Reppin I case is in di- case; it, as fact, view opinion case of the court this with rect conflict I show. as will now police concerning a chief of testified
In that case defendant, with the wherein de- he had conversation fendant making plans of certain with confessed to the holdup respect Broadmoor Hotel in Colorado to Jersey Springs; in New had been arrested gone place conspiracy; had called the that he holding Spigot up, intention with the Pot of similar character. reference other matters defendant, related the chief this confession police, we said: police permitting chief of erred “The court testify, objection, over the to the defendant’s defendant’s concerning a statements with reference to his ‘vision’ *18 holdup at the Broadmoor and those with refer- Hotel, Spigot holdup occurred, ence to incident. No the Pot testimony attempted. nor was one even That does not any excluding exception come within to the rule evi- prejudicial dence of other The offenses. error reversible. prejudicial
“For the same reason it was and revers- part ible error to re- admit that of the confession that Jersey, to the lated defendant’s 1931, arrest New conspiracy.” separate There were three incidents recited in the confession of the defendant, which we held to be irrel- any evant to issue in case, and, result, as the ad- concerning prejudicial mission of evidence them was to defendant, parts and constituted reversible error. Other of the confession found to be relevant the issues were properly admitted in evidence. nothing People, There is in Williams v. 207, Colo. (2d) 158 P. 447, inor of authorities cited support opinion, contrary the court in of its requires
above statement or which the admission ir of incompetent though relevant and evidence even it forms part of an “entire confession.” only remaining question The sole and herein, Michigan proof or whether not crimes is relevant to some in the issue instant case. determination question requires this the which at the outset an examination of applicable chapter statute, section C.S.A., ’35 * ** provides: “All murder which is committed ** * perpetration attempt perpetrate any in the or * * * robbery, gree.” shall be deemed murder of the de- first the killing during per-
Under our decisions, the petration robbery proof of a without further constitutes degree. People, murder first Jones v. 93 Colo. (2d) Reppin People, supra. 285, 26 P. 282, are 103; There consequently but two elements of the of mur- crime namely, provision statute, of the der under the above killing robbery. and the in the in full forth instruction set In trial court’s majority opinion, the evidence it was stated solely Michigan for the “admitted crimes was de- plan, design, showing intent, motive, charged alleged the act commission fendant in the information.” overruling trial, the for new motion defendant’s becomes “I think it then alia: observed,
trial court important inter intended the defendant to determine what I think the evidence time he struck the blow. subsequent in- same acts where admitted, of the employed resulted, was where death strument properly fact that at the time admitted establish intended to ac- case, in this the deceased he struck complish *19 accomplish it.” did in fact death, and his design” expressly plan men- or are “motive, While specific given, there was no instruction tioned the findings of trial court at the reference thereto overruling trial, of the motion for new of the the time findings the evidence con- such that clear from and it is cerning only Michigan for the was admitted crimes showing “motive, to show “intent,” and not of interesting design.” passing, plan, it is to note or Michigan evidence of the found the the trial court that crimes was purpose of admissible for the establish- not identity “identity” ing “I that the of the because, felt sufficiently doubt had been established.” No defendant convinced if the court had been that the same token “sufficiently established” he would had been “intent” Michigan crimes alto- evidence of excluded have gether. twenty-two when the life of a matter is a serious
It boy, penitentiary, de- year in death row at the now old probability, court’s pends the trial determin- in all or “intent” has been “suffici- to not as whether ation ently especially in view of the case, established” in following findings remark in the court: “I said con- question admissibility sider that of evidence only as other one, to crimes is a troublesome and was thought objected after considerable the evidence that in the motion for trial to and referred new to admitted.”
It is evident from above that the trial court enter- grave admissibility tained as such evi- doubts to the dence. Under the authorities the of such benefit doubts always should be resolved in favor of the accused. naturally inquiry This leads to the whether “intent” not, event, is an element of the essential charged; necessary crime here was it in- to show such by proof alleged tent crimes; did the fact accomplish [defendant] “he intended [Ford’s] any bearing upon death” have A issues herein? con-' questions Reppin answer elusive to all such is found in People, supra, where we said: if, “But as in this case, the uncontradicted evidence is to the effect that perpetration the murder was committed in the of a rob- bery, the murder is our declared statute to be of the degree, required first and the court, as we shall see, jury question penalty to submit to the sole be fixed.”
Nothing effect that intent said must shown necessarily other evidence. It follows guilty is, decisions, herein under the statute above degree irrespective of murder of the his inten- first tion and he entertained the most that he “intended to fact that vicious imaginable, accomplish intent *20 [Ford’s] death” when he struck blow, the fatal is wholly scope outside the of the issues in the case. The fully by showing killing crime is established and robbery, and under statute introduction of unre- lated in another and disconnected crimes state is a mere subterfuge except and have can effect inflame to no. jurors impose minds of the penalty and cause them to the death life’imprisonment.
instead of a sentence As
567 Reppin opinion, quoting stated us in the from an legislature Illinois case: “The has seen fit clothe to juries fixing punishment with a wide discretion to Every be inflicted one convicted of murder. de- on fendant trial for that crime is entitled to the full benefit of the When statute. all else has failed him, right jury unprejudiced by has a competent, to stand before a in- appeal
irrelevant and them evidence, to spare his life.” quite uniformly where, intent here, charged,
It is held is not an or essential element of the crime by proof it is where established of the commission of the constituting robbery), (killing acts evi the crime dence other crimes is Such was the inadmissible. holding supreme Oregon in State Will court of v. 113
son, 450, Ore. where said: 498, 259, 271, Pac. only “The evidence of other offenses in this case tend They to blacken the character of the are not defendant. completely admissible to for show intent is conclusively if the testi established the act itself monly introduced state is to be believed. It con trary objectionable to the reason of the law to admit testimony of other crimes.” Smith, State Wash. 174 Pac. the su- Washington
preme court said: “There is no more dangerous testimony insidious and than that which at- by producing tempts a defendant convict crimes other than the one which he is on trial, testimony only clearly when such should admitted nec- charge essary elements of the establish the essential being guilty prosecuted. intent, To establish knowledge, permis- motive, unlawful sible to show that the act criminal it is charged against beyond one in a of similar ones; this, series but go securing and, state cannot for the a con- perpetration viction, show the acts, similar even general though scheme, committed furtherance of a proof required there is no establish mo- intent, where *21 568 act charged the proof than of
tive or other knowledge, against charged the act In other where words, itself. the offense, guilty- the the defendant characterizes itself of proof Here is the act. intent proven by proving for mor- calling on a of prescription giving dry morphine and nothing of solution was the intent proof phine criminality.” establish more was necessary 779, 130 N.E. 782, In 297 Ill. People Hobbs, 399, other is stated: “The rule is general proof tried, being is offense than for which accused Where inadmissible. character, similar is although or be proved, the intent is not required specifically proof nature investigation from the of the offense under establishes charged necessarily its commission as conclusion necessary criminal the intent is intent, or of other from the act evidence of the done, perpetration be like offenses should not admitted.” Atl. 797, 85 Boyce 499, State v. Brown, (Del.) court said: “But, alleged intent with an of- wherever the charge, fense was committed is a material element of such an trial, proof intent becomes issue at the other offenses, limits, similar within certain reasonable admissible, to throw the inten- tending light upon doing tion of accused in of. complained act
[*] [*] [*] “Where, however, intent required spe- not from the offense under cifically proved, or nature of the neces- investigation charged of its commission as proof the criminal or the intent is a sarily intent, establishes the act evidence of necessary done, conclusion from of other like of- perpetration, perpetration, attempted admitted.” fenses, should not be 85 Utah 38 P. Cragun, (2d) is said State v. It 1079: 1071, 1078, the state is able to as it did case prove,
“Where act perform- commission and that its bar, not save the life of the necessary woman, ance then the of the defendant been criminal intent has and evidence en- shown, abortions on other and *22 tirely competent. different women is not relevant nor If he had defendant, although guilty, not pleaded claimed that in an necessarily performed act was to effort save the life of in rebuttal woman, then such claim the state well might offer evidence of other abortions or committed attempted by defendant for the purpose of such his disproving showing claim and intent for he is performance the acts which being tried.
“Cases may arise where the state would unable to be prove the intent defendant without proving commission, him attempted commission, by on other women separate and distinct offenses. Should such case arise, then, for the criminal proving intent, the state to should be introduce such permitted evidence on its main although a case, guilty of not plea had defendant; been but, entered where the state, as was the case here, .can prove the intent without rely- ing upon separate and distinct committed offenses it defendant, should do so. v vv
“It necessarily follows that the admission this evi- dence error, was and that a new trial should be granted. The judgment of the reversed, court below is therefore and the case for a remanded trial.” new (Italics supplied) States, v. United 43 F. Tinsley (2d) 890, 893, the Court of stated the rule “If Appeals
Circuit as follows: of a defendant’s involved, no intent unless question there is some connection between such offenses is manifestly those unfair and charged, unjust of like offenses those charged evidence in the indict- ment introduced.” should
It is contended briefs that Hillen v. People, Colo. 149 Pac. cited in the court’s opinion, for evidence of other authority permitting offenses to be in- a murder case intent. That was introduced prove here under same statute another volving provision of murder was convicted The defendant consideration. attempt in an one Chase for killing of the first degree robbery. The court admitted a highway to perpetrate have been com- alleged of other robberies before and after the act defendant mitted “showed that being he was tried. The evidence to throw deceased the defendant commanded [Chase] the fatal shot.” instant later fired hands, and an his up made, was robbery “No at actual attempt We said: fired; was as soon as the shot away running hands, up order to Chase to throw and aside from the action as to characterize defendant’s there nothing It estab- necessary, therefore, an to rob. attempt *23 intent robbery, to commit lish his if admissible, showing other offenses is evidence of to show intent.” tending intent above case necessary prove
It was robberies rob, evidence of other consequently, in- the same was to show that his competent individual in the on to rob the deceased. Evi- tent trial, case In dence to that issue. of other offenses relevant evidence, the instant case it is shown conclusively case, an but that attempt not to rob as in the Hillen did rob and that actually Ford, part In in his the Hillen case the loot was found possession. the crime an essential element of intent was question in- trial, whereas, on for which defendant was the com- case, by proof stant the intent is established The Hillen not clearly mission the act. case point. “It I from the case: again Reppin conclusion quote in this for us know what case jury impossible this done but for introduction of incom-
would have less to say much is it our evidence, province petent done.” should have they what dissent. Mr. Justice concurs this Hilliard