Dickens v. People

186 P. 277, 67 Colo. 409, 1919 Colo. LEXIS 510

• Court: Supreme Court of Colorado
• Decided: October 6, 1919
• Docket: No. 9151
• Status: Published

Opinions

Mr. Justice Bailey

delivered the opinion of the Court.

JUST after dark, on the evening of November 30th, 1915, about the hour of eight, William H. Dickens, of Longmont, Colorado, was shot to death while sitting with his wife in a room of his home in that city. The fatal shot was fired from the alley way near the house, and the bullet penetrated the window pane in front of which Mr. Dickens sat, before reaching its objective. The defendant, Rienzi C. Dickens, a son of the dead man, was indicted for the killing, charged with the crime of murder.

The evidence, without cavil or dispute, shows that, the killing was accomplished by lying in wait, that it was done maliciously, premeditatedly and deliberately, in cold blood, an assassination pure and simple. There was not a scintilla of evidence to show that the killing was done in any .other manner than as alcove stated. The defendant entered a plea of not guilty, and the issue was whether Rienzi was guilty of murder of the first degree, or not guilty, and under the proofs that was the only possible issue.

Upon this undisputed state of facts, over the protest, objection and exception of the defendant, the court instructed the jury that it might return a verdict of either first degree murder, or one of second degree murder, both of which degrees were correctly defined, or a verdict of not guilty. The defendant requested an instruction to the effect that the evidence showed that in the killing first degree murder was committed, and that their verdict should be either guilty of that degree or not guilty. This instruction the court refused, to which ruling the defendant reserved an exception. Error is assigned on both propositions.

The judgment must be reversed for the error of the court in giving the instruction which permitted a verdict of second degree murder, and in declining to give the instruction tendered to the effect that, under the evidence, only one of two verdicts was competent, either one of first degree murder, or one of not guilty. There are numerous other assignments of error, but the court is of opinion that the case should be determined upon the ones above suggested.

The action- of the court in reference to these instructions is in conflict with the holding of this court in Ehrhardt v. People, where Mr. Justice Campbell, in the opinion therein, said:

“The evidence as abstracted does not call for an instruction as to murder of the second degree. Why the jury so found we do not know, and speculation about it is useless. Counsel has made no argument that defendant was prejudiced by this action, but we observe that it is inexplicable.

“If defendant administered poison to his wife and she died from its effects, he was guilty of murder of the first, not of the second, degree. If he did not so kill her, he should have been acquitted.” Ehrhardt v. People, 51 Colo. 205, 206, 117 Pac. 164.

Also such action is in conflict with what was declared by this court in King v. People, as follows:

“The statute makes a homicide committed in the perpetration or attempted perpetration of robbery (or lying in wait) murder in the-first degree, and the substantial effect of the instruction was to impose the duty upon the jury to ascertain whether the robbery had been committed or attempted, and if so, whether the homicide had been committed in the perpetration thereof. If both were found in the affirmative beyond a reasonáble doubt, the statute fixes the homicide as murder of the first degree, and under such circumstances that degree is the only grade of the offense of murder the evidence will support. * * * Under such circumstances there is but one grade of the offense, that is, murder in the first degree.” King v. People, 54 Colo. 122, 126, 129 Pac. 235.

In this connection the following additional cases from this court are directly in point, and demonstrate beyond controversy that prejudicial error was committed in this connection: Smith v. People, 1 Colo. 121; Reagan v. People, 49 Colo. 316, 112 Pac. 785; Carpenter v. People, 31 Colo. 291, 72 Pac. 1072; Mow v. People, 31 Colo. 361, 72 Pac. 1069.

In Smith v. People, supra, at page 146, this was declared by the court:

“If, in a case of felonious homicide, the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury. To require the jury in such a case to pass upon the question of manslaughter would be as unreasonable and absurd as to instruct them respecting the crime of larceny.”

Also in the case of Reagan v. People, supra, at page 326, this court said:

“The defendant was on trial for a murder committed in perpetrating a robbery. Taking human life in such circumstances was murder of the first degree, so that defendant was either guilty of that degree of homicide, or not guilty at all. It is not error to refuse instructions which are not applicable to any facts or testimony in the case.”

In Mow v. People, supra, at page 361, this court was considering the question of the failure of the court in a homicide case to instruct upon the degree of manslaughter, in which case no instructions on that subject had been requested, and this was said:

“Mere non-direction is not reversible error unless a specific instruction, good in point of law, covering the omission, was requested and refused.”

So here the mere failure to give such an instruction limiting the verdict of guilty of first degree murder or acquittal might, in the absence of a request therefor, not have been reversible error, but as the defendant asked such an instruction and the court refused to give it, under the foregoing authority such refusal was obviously reversible error. Defendant had a right to have given to the jury the rules of law applicable to the evidence, and none other. That right was denied him when an instruction was given to which no evidence was applicable, and when the only instruction in this connection applicable to the evidence was refused.

Under an improper, erroneous and misleading instruc- ' tion, to which objection was made and a- proper instruction tendered on the precise point, which the court declined to give, the jury was afforded an opportunity, through compromise and trade, to reach a verdict which had no proof whatsoever to support it. Such a verdict can not properly, and ought not to, stand. Here appears the strange anomaly of a man convicted of, and sentenced for, an .offense which tbe evidence totally fails to show was ever committed by him, or by any one else, or at all.

It is uniformly held that instructions should not be given concerning questions not supported by the evidence. Such instructions are regarded as necessarily misleading and prejudicial. Coors v. Brock, 44 Colo. 80, 96 Pac. 963; Fisk v. Light Co., 3 Colo. App. 319, 33 Pac. 70.

In Fisk v. Light Co., supra, the court, at page 324, said:

“The instructions should in all cases be based upon the evidence, and an instruction, no matter how correct the principle which it may announce, that impliedly assumes the existence of evidence which was not given, is erroneous. It is calculated to bewilder and mislead the jury by producing the impression that in the mind of the court, some state of facts, as the instruction supposes, may be inferred from the evidence given, or concealed within it. The authorities upon this proposition are numerous and uniform. Breeze v. State, 12 Ohio N. S. 146, 80 Am. Dec. 340; Ely v. Tallman, 14 Wis. 28; Hill v. Canfield, 56 Pa. St. 454; Atkins v. Nicholson, 31 Mo. 488; Bensley v. Brockway, 27 Ill. App. 410.”

In view of the conclusive character of the evidence in this case as to the degree of the offense committed, the charge of the court permitting the jury to find second degree murder could not have failed to mislead and confuse them, and by all of the authorities was, under such circumstances, prejudicial and reversible error. State v. Vance, 80 Ala. 1. Such instruction not only necessarily had the effect to mislead, confuse and distract the attention of the jury from the real issue, but it further gave it to understand that the judge was of opinion that such a verdict found support in the testimony, when in truth and in fact there is a total lack of testimony as a basis for the verdict returned. In this connection it is worthy of note that an instruction, although ostensibly for the benefit of the defendant, which may mislead the jury is ground for reversal. Patterson v. State, 60 S. W. (Texas) 557.

As bearing on the duty of the court to confine its instructions to matters supported by the proofs, we cite and quote from the following authorities: “When, on the evidence, the accused is clearly guilty of murder of the first degree, or not guilty, it is not only the right, but the duty of the court to so instruct the jury.” Fertig v. State, 100 , 75 N. W. 960. In State v. Froelick, 70 Iowa 213, 30 N. W. 487, it is held that an instruction as tp a degree of crime less than that shown by the evidence is improper. In State v. Mahly, 68 Mo. 315, the court held that an instruction as to second degree murder where the evidence showed a crime of first degree murder was error. The evidence showed a crime of peculiar atrocity, the deliberate killing by the accused of his stepchild. The court said: “Courts should not humor or encourage the sentimentalism of juries who shrink from finding an accused guilty of the highest crime of which the evidence proves him guilty, by giving instructions authorizing them to find him guilty of a lower grade, of which there is no proof of his guilt. If they have a reasonable doubt of his guilt of the only crime which the evidence tends to prove, they should acquit and not compromise with that doubt by finding him guilty of a lower grade of offense. Instructions in regard to the lower grade, not warranted by the evidence, operate as persuasives to juries to convict of one of those grades when they should convict the accused of the highest, or acquit him altogether. The court erred in giving the instruction defining murder in the second degree, because there was no evidence to support it.” In State v. Stoeckli, 71 Mo. 551, the court reversed a judgment in a murder case, as it said: “Because the Superior Court erred in instructing the jury as to murder in the second degree, when under the facts shown by the evidence, if defendant committed the homicide at all, he was guilty of murder in the first degree and of no other grade of homicide.”

It is to be observed that in the above cases there was no request for an instruction such as was made in this case, but the judgment was reversed because of the instruction as to second degree murder. Of course in view of the requested instruction here a much stronger case of error is presented than in the cases cited.

As indicating how utterly misled and bewildered by this instruction the jury must have been, we need only to point out that, although there was not an iota of testimony to establish any crime except that of first degree murder, yet it found that the defendant maliciously killed his own father, and still returned a verdict of murder of the second degree only, and further recommended him to the leniency of the court.

It is vigorously contended that, in as much as the second degree murder instruction, although erroneous, was favorable to the defendant, in that it gave opportunity to the jury to reduce the degree of the offense, the error was not prejudicial. In considering this contention it should constantly be borne in mind that our court has definitely determined that error is presumed to be prejudicial unless it affirmatively appears from the record that it is not so. Dekelt v. People, 44 Colo. 531. Therefore the failure to give the requested instruction to the jury that their verdict must be one of guilty of* first degree murder or not guilty was prejudicial, unless the contrary is made affirmatively to appear. It is impossible for human intelligence to divine what, if this correct instruction had been given, the verdict of the jury would have been. There is nothing in the record to show that the jury would have convicted the defendant of first degree murder, and in the absence of such showing it is conclusive that the error in refusing to give the instruction, and in affirmatively instructing that the jury might find a verdict of second degree murder, was préjudicial and constituted reversible error under the settled law of this jurisdiction. Indeed, if the record indicates anything on this point, it manifestly is that, in no event, would the jury have returned a verdict of first degree murder, because, as heretofore pointed out, on evidence supporting only that degree it returned one of second degree, and further recommended the defendant to the leniency of the court. This situation makes it still plainer that the supposed favorable instruction was not in fact such.

We are aware of no legal principle, or of any rule of law or practice recognized in the jurisprudence of this or any other time which gives a trial judge the power and authority to invade the ¡rights of a defendant on trial for his life and liberty, and to, arbitrarily, in the face of a request for a correct pronouncement of the law, refuse and decline to give such, and, as was done in this case, incorrectly instruct the j ary, on the theory that such instruction is more favorable to the defendant than the true and correct rule as requested by him would be.

Judgment reversed and cause remanded for a new trial.

Decision en bcmc.

Mr. Chief Justice Garrigues, Mr. Justice Burke and Mr. Justice Scott dissent.