PLAINTIFF in error, hereinafter referred to as Frady, was tried for murder. The jury returned him guilty in the first degree and fixed the penalty at death. To review the judgment entered accordingly he prosecutes this writ. On our order he was permitted, as an indigent person, to file typewritten abstracts and briefs here, without costs.
The errors assigned, which require notice in this opinion, go to: (1) Remarks by the court during the opening statement of the district attorney; (2) exclusion of an offer of testimony; (3) exclusion of Frady's testimony concerning promises made to him by the district attorney; (4) refusal of the court to accept a plea of guilty
of murder in the second degree; (5) statements of court and counsel during closing arguments; (6) the correctness of the court's instruction No. 6; (7) the correctness of the court's instruction No. 8.
Frady and one Kelly were separately tried for the murder of Russell Browning who lived near Delta. On the morning of October 17, 1933, his home was discovered in flames and he was found nearby badly beaten, bound with barbed wire, and dying. The crime was indisputably fixed on Frady and Kelly as the outcome of a robbery. Kelly was first tried, found guilty, sentenced to death, and has been executed. There is no contention that Frady was not also guilty. Each man testified herein and charged the actual killing to the other. Frady's principal contentions here are, first, that he should have been permitted to plead guilty to second degree murder; second, that the extreme penalty imposed was the result of the other errors assigned.
[1] 1. In opening, the district attorney stated that Frady had been of service to the state in solving the crime and that in return he had promised to recommend to the court an acceptance of a plea of guilty to second degree murder; that he had so recommended, but the judge had insisted that the matter be left to a jury; that the state was not asking the death penalty; and that the jury should consider these things. Whereupon the court said: "* * * No one can promise anybody accused of a crime what punishment shall be inflicted. In capital cases it rests with the jury, * * * and for that reason the court would not accept the plea; * * *. You understand that, do you, gentlemen?" In support of this assignment no authority is cited and we know of none such. The law is as stated. Fleagle v. People, 87 Colo. 532,289 Pac. 1078. The effect of the very frank and fair admission of counsel for the people, plus the reply of the court, would seem beneficial rather than prejudicial to defendant.
[2] 2. Counsel for defendant offered to prove that
Kelly told one Welty, not in the presence or hearing of Frady, that Browning had a lot of money and would be easy to rob. The evidence was wholly immaterial and incompetent. No authority is cited in support of its admission.
[3] 3. Objections were sustained to questions propounded to Frady concerning the promises made to him. No confession or statements made by him, if any, as a result thereof, were offered in evidence. The promises made by the district attorney were admitted and unquestioned. The only authority cited in support of this assignment is 16 C. J., p. 723, § 1481. It relates solely to instances "where a confession is introduced by the state." The rule is well settled, but there was no such evidence here. The proffered testimony was properly excluded.
[4] 4. Frady had been called by the people as a witness against Kelly. In view of that fact, and the promise made by the district attorney, it is contended that the trial court abused its discretion in not accepting the tendered plea. The discretion being admitted we fail to find the abuse. The only applicable authorities cited are federal cases, the principal one being United States v.Ford, 99 U.S. 594, 606, 25 L. Ed. 399. Each of these cases, however, deals with an accomplice. Here both Kelly and Frady were principals and each insists that the other was the actual perpetrator. If Kelly was correct in this it would be absurd to permit Frady, by his testimony, to send him to death that he himself might escape with a minor sentence. Under such circumstances it was no abuse of discretion to send the question to a jury. It is clear that these jurors believed Frady at least equally guilty with his associate, if he did not himself inflict the fatal blows, or some of them. There is much evidence to support that conclusion. For instance, Frady's explanation of how he happened to be splattered with his victim's blood is weak and unconvincing. But even in the federal courts similar promises are accepted only as
grounds for continuance to give time to seek executive clemency. In the Ford case, supra, it is held that the promises of the prosecutor can not bind the court. A brief but sufficient history of the principle involved in this phase of the case will be found in the opinion of Chief Justice Beasley, speaking for the court of error and appeals of New Jersey, in a case in many respects similar to that now before us and in which the modern rule is well stated. State v. Graham, 41 N. J. L. 15, 32
Am. Rep. 174. It will be observed that whether the alleged agreement be one not to prosecute or for reduction of the offense or diminution of the punishment, the pertinent history and applicable principles are the same. They may again be found briefly stated in 8 R. C. L. page 125, section 101, from which we quote: "But the witness must keep his part of the contract strictly if he hopes to receive the promised immunity, and if his testimony is corrupt, or his disclosure is only partial, he gains nothing, but forfeits his right under the contract." We think, under the facts of the instant case, the district attorney's duty obliged him to prosecute, that he fully carried out the promise he made, that the jurors were fairly advised of the facts, and that no abuse of discretion appears.
[5, 6] 5. During the closing argument of counsel for defendant, which was not taken by the reporter and appears briefly in the record by stipulation, indefinite statements were made which might well be interpreted as contrary to instructions given. It is clear the trial judge so understood them, for he interrupted, saying: "I think your argument is contrary to the instructions of the court to the jury. By the instructions given the jury I have in effect told them that if they find and believe from the evidence that the defendant participated with Kelly in the robbery or attempted robbery of Browning in the course of which Browning was killed the defendant would be a principal whether he did the actual killing or not." Error is assigned thereon. We find none. The
court's statement was but a recitation of instructions given and was justified by the argument which prompted it. Moreover, the jury was especially instructed that "the remarks of court and counsel are not evidence."
Counsel for the people, in his closing argument, said: "While we are not asking at your hands the death penalty in this case, you are aware from the reading of our daily press that life sentences are often not sentences for life and that frequently one sentenced for life is at liberty in a few years." Objection was made thereto and error is assigned thereon.
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PLAINTIFF in error, hereinafter referred to as Frady, was tried for murder. The jury returned him guilty in the first degree and fixed the penalty at death. To review the judgment entered accordingly he prosecutes this writ. On our order he was permitted, as an indigent person, to file typewritten abstracts and briefs here, without costs.
The errors assigned, which require notice in this opinion, go to: (1) Remarks by the court during the opening statement of the district attorney; (2) exclusion of an offer of testimony; (3) exclusion of Frady's testimony concerning promises made to him by the district attorney; (4) refusal of the court to accept a plea of guilty
of murder in the second degree; (5) statements of court and counsel during closing arguments; (6) the correctness of the court's instruction No. 6; (7) the correctness of the court's instruction No. 8.
Frady and one Kelly were separately tried for the murder of Russell Browning who lived near Delta. On the morning of October 17, 1933, his home was discovered in flames and he was found nearby badly beaten, bound with barbed wire, and dying. The crime was indisputably fixed on Frady and Kelly as the outcome of a robbery. Kelly was first tried, found guilty, sentenced to death, and has been executed. There is no contention that Frady was not also guilty. Each man testified herein and charged the actual killing to the other. Frady's principal contentions here are, first, that he should have been permitted to plead guilty to second degree murder; second, that the extreme penalty imposed was the result of the other errors assigned.
[1] 1. In opening, the district attorney stated that Frady had been of service to the state in solving the crime and that in return he had promised to recommend to the court an acceptance of a plea of guilty to second degree murder; that he had so recommended, but the judge had insisted that the matter be left to a jury; that the state was not asking the death penalty; and that the jury should consider these things. Whereupon the court said: "* * * No one can promise anybody accused of a crime what punishment shall be inflicted. In capital cases it rests with the jury, * * * and for that reason the court would not accept the plea; * * *. You understand that, do you, gentlemen?" In support of this assignment no authority is cited and we know of none such. The law is as stated. Fleagle v. People, 87 Colo. 532,289 Pac. 1078. The effect of the very frank and fair admission of counsel for the people, plus the reply of the court, would seem beneficial rather than prejudicial to defendant.
[2] 2. Counsel for defendant offered to prove that
Kelly told one Welty, not in the presence or hearing of Frady, that Browning had a lot of money and would be easy to rob. The evidence was wholly immaterial and incompetent. No authority is cited in support of its admission.
[3] 3. Objections were sustained to questions propounded to Frady concerning the promises made to him. No confession or statements made by him, if any, as a result thereof, were offered in evidence. The promises made by the district attorney were admitted and unquestioned. The only authority cited in support of this assignment is 16 C. J., p. 723, § 1481. It relates solely to instances "where a confession is introduced by the state." The rule is well settled, but there was no such evidence here. The proffered testimony was properly excluded.
[4] 4. Frady had been called by the people as a witness against Kelly. In view of that fact, and the promise made by the district attorney, it is contended that the trial court abused its discretion in not accepting the tendered plea. The discretion being admitted we fail to find the abuse. The only applicable authorities cited are federal cases, the principal one being United States v.Ford, 99 U.S. 594, 606, 25 L. Ed. 399. Each of these cases, however, deals with an accomplice. Here both Kelly and Frady were principals and each insists that the other was the actual perpetrator. If Kelly was correct in this it would be absurd to permit Frady, by his testimony, to send him to death that he himself might escape with a minor sentence. Under such circumstances it was no abuse of discretion to send the question to a jury. It is clear that these jurors believed Frady at least equally guilty with his associate, if he did not himself inflict the fatal blows, or some of them. There is much evidence to support that conclusion. For instance, Frady's explanation of how he happened to be splattered with his victim's blood is weak and unconvincing. But even in the federal courts similar promises are accepted only as
grounds for continuance to give time to seek executive clemency. In the Ford case, supra, it is held that the promises of the prosecutor can not bind the court. A brief but sufficient history of the principle involved in this phase of the case will be found in the opinion of Chief Justice Beasley, speaking for the court of error and appeals of New Jersey, in a case in many respects similar to that now before us and in which the modern rule is well stated. State v. Graham, 41 N. J. L. 15, 32
Am. Rep. 174. It will be observed that whether the alleged agreement be one not to prosecute or for reduction of the offense or diminution of the punishment, the pertinent history and applicable principles are the same. They may again be found briefly stated in 8 R. C. L. page 125, section 101, from which we quote: "But the witness must keep his part of the contract strictly if he hopes to receive the promised immunity, and if his testimony is corrupt, or his disclosure is only partial, he gains nothing, but forfeits his right under the contract." We think, under the facts of the instant case, the district attorney's duty obliged him to prosecute, that he fully carried out the promise he made, that the jurors were fairly advised of the facts, and that no abuse of discretion appears.
[5, 6] 5. During the closing argument of counsel for defendant, which was not taken by the reporter and appears briefly in the record by stipulation, indefinite statements were made which might well be interpreted as contrary to instructions given. It is clear the trial judge so understood them, for he interrupted, saying: "I think your argument is contrary to the instructions of the court to the jury. By the instructions given the jury I have in effect told them that if they find and believe from the evidence that the defendant participated with Kelly in the robbery or attempted robbery of Browning in the course of which Browning was killed the defendant would be a principal whether he did the actual killing or not." Error is assigned thereon. We find none. The
court's statement was but a recitation of instructions given and was justified by the argument which prompted it. Moreover, the jury was especially instructed that "the remarks of court and counsel are not evidence."
Counsel for the people, in his closing argument, said: "While we are not asking at your hands the death penalty in this case, you are aware from the reading of our daily press that life sentences are often not sentences for life and that frequently one sentenced for life is at liberty in a few years." Objection was made thereto and error is assigned thereon. It does not appear that any ruling of the court was asked or given and there was no request for a direction to disregard the statement. It was a statement of fact, known to all men, doubtless present in the minds of the jurors without being mentioned, and most likely to creep into argument under the circumstances. Probably technically improper it was still within the court's discretion. Hillen v. People, 59 Colo. 280,284, 149 Pac. 250. The instruction concerning remarks of counsel applied to this and we doubt its influence on the jury. Wechter v. People, 53 Colo. 89, 96, 124 Pac. 183.
[7] 6. By instruction No. 6 the jurors were told that if this was a homicide committed in the perpetration of robbery "then the elements of malice, deliberation, premeditation and intent are not necessary elements of the crime charged and need not be proved." Our statutes provide that "all murder * * * which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder of the first degree." C. L. § 6665. It is the attempt to rob, not the elements of malice, deliberation, etc., which lifts such a homicide into the classification of first degree murder. "The purpose of the statute was to make every homicide committed in the perpetration or attempt to perpetrate certain felonies murder, which may be punished by death, if the jury so determine, without regard to malice, deliberation or premeditation. When, therefore, the proof was undisputed that the homicide was committed in an
attempt to perpetrate a robbery which the defendants had conspired to commit, it was not necessary to prove any facts from which malice, deliberation or premeditation could be inferred." Andrews v. People, 33 Colo. 193,201, 79 Pac. 1031. The instruction was correct.
[8] 7. Instruction No. 8 states the facts under which an accessory is held as principal. C. L. 1921, p. 1726, § 6645. Counsel for defendant asked that there be added to that instruction the following: "If you find that the defendant Frady objected to and protested against the killing of said Russell Browning, before that act had been accomplished you may take that into consideration in determining the degree of the offense." The court's refusal to so amend the instruction is assigned as error. The amendment is open to several objections. First, it had no relation to the general subject of instruction No. 8. Second, it selects and comments upon a single piece of evidence contrary to the general rule; and third, the jury was instructed to consider all the evidence in reaching its conclusion. We think the ruling was correct.
[9] Below, as here, Frady made a showing of indigence, and counsel, appointed to represent him, is deserving of commendation for the manner in which he has discharged an unpleasant, and necessarily uncompensated, duty to his profession and society. A hasty glance at the highlights of this record leaves the impression of a very severe verdict, possibly due to passion, prejudice, or error, or a failure to properly and vigorously defend. A careful examination of it however dispels doubt and brings the conviction that Frady was ably represented and that the jurors were justified in concluding, not only that this was first degree murder because perpetrated in the prosecution of a deliberately planned robbery, but that it was a cold-blooded, intentional, wanton, and particularly atrocious crime in which Kelly and Frady equally participated. Add to this that Frady had served two terms in the reform school and one, on a plea of guilty of burglary and larceny, in the
penitentiary, from which he had but recently been released, and there remains no mystery about the verdict and little room to question its justice.
The judgment is affirmed and the week ending March 9, 1935, is fixed as the date for the execution of the sentence.
MR. JUSTICE BOUCK dissents.