Tate v. People

• Decision Date: 05 May 1952
• Docket Number: No. 16769,16769
• Parties: TATE v. PEOPLE.
• Court: Colorado Supreme Court

Page 665

247 P.2d 665

125 Colo. 527

TATE v. PEOPLE.

No. 16769.

Supreme Court of Colorado, en Banc.

May 5, 1952.

Rehearing Denied June 23, 1952.

Isaac Mellman, Denver, for plaintiff in error.

Duke Dunbar, Atty. Gen., Lawrence Hinkley, Dep. Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

HOLLAND, Justice.

On February 28, 1950, while a resident of Adams county, Colorado, defendant took her two children, ages ten and twelve, with her to the office of the sheriff of Adams county and told him that she had something to tell him and wanted to tell it in the presence of her children. She then related the circumstances leading up to her finding, on February 10, the dead body of her ex-husband, who had been living at her place virtually all the time after he obtained a divorce from her in Reno, Nevada, in 1945. She detailed her disposal of the body and her reasons for concealing the matter for the intervening eighteen days, and thereupon the sheriff summoned the coroner and district attorney and accompanied defendant to her home where they found the buried body as described by defendant. The body was immediately turned over to Dr. Lapi, a pathologist at the Denver General Hospital, for an autopsy. An inquest was held on March 3 and the coroner's jury returned a verdict 'that Dot Hewitt came to his death feloniously on the Tate property in Adams County, Colorado, as a result of bullet wounds inflicted by party or parties unknown.' Thereafter, and on March 6, 1950, the district attorney filed an information charging that defendant 'Ella Hewitt Tate did unlawfully, feloniously, wilfully, deliberately, and of her premeditated malice aforethought, kill and murder Dot T. Hewitt * * *.' This information was supported by an affidavit of verification of Homer W. Mayberry, the sheriff of Adams county, who stated, 'That the facts stated in the foregoing information hereto attached are true and that the offense therein charged was committed of this affiant's own personal knowledge.'

On defendant's plea of 'not guilty,' trial was had before a jury beginning October 16, 1950 and ending October 20, 1950, at which time the jury returned its verdict 'guilty of murder in the second degree in the manner and form as charged in the information filed herein.' Motion for new trial, containing fifty-two grounds, was filed, argued and overruled, not by the judge who tried the case, but by another judge of the district, the term of the trial judge having expired, and defendant sentenced to from fifteen to twenty years in the state penitentiary.

On the facts appearing in the record, which will be hereinafter narrated, defendant, now plaintiff in error, seeks reversal on the following grounds:

1. Venue not established;

2. Corpus delicti not established;

3. Deputy sheriff acting as juror;

4. No evidence of wilfullness, deliberation or premeditation 5. No evidence of first degree murder;

6. No evidence of second degree murder;

7. Failure of court to give instruction defining malice;

8. The court erred in answering inquiries of jury;

9. Insufficient evidence to warrant verdict of guilty;

10. Error in denying motions for directed verdict.

Since we are satisfied that the judgment herein must be reversed, we might well conclude this opinion on the ground that the evidence does not support the verdict; however, other pertinent and material questions are presented, and we feel that in order to avoid repetition of like error in future cases, we should discuss some of the assigned errors, after a narration of the facts as shown by the evidence.

Defendant, a woman now thirty-nine years old, was married to Dot T. Hewitt, the deceased, in February 1936 in Oklahoma, to which marriage two children were born, Robert Cooper Hewitt, now twelve years old, and Joyce Evelyn Hewitt, nine years old. The deceased was sixty-nine years old at the time of his death; that he had been in bad health, had had operations and possibly was afflicted with cancer, over a period of years, is not effectively disputed; that he had made attempts to take his life; had frequently expressed his desire to end it all; and talked about it to other people, is clearly established. That he was obsessed with ideas of inventions and was of a restless nature and disposition is not denied. We find nothing in the record to indicate any turbulent or unpleasant life with defendant. Out of a clear sky in about 1945, he displayed what he claimed was a Reno divorce decree to defendant, saying that he had paid a Denver lawyer $200 to get it for him. Defendant, being unable to understand this unexplained action on the part of deceased, questioned the authenticity of the divorce decree and said she was going to see a lawyer to find out about it. He thereupon did go to Reno and finally obtained a divorce; however, he came directly home to defendant where they lived at the time of the alleged crime. He did make short trips here and there about the country and would stay with the children a part of the time while defendant was at work. He suggested to defendant that she marry Tate, a service man, whom they both knew and who had frequented their home, with the further suggestion that he, Tate, could support her and help take care of the children. Apparently without too much romance, defendant married Tate, who soon developed into a drunkard and spent all of his earnings in that fashion. It seems that deceased, defendant and Tate all occupied the same home without any apparent difficulties or trouble. Deceased had not lived with defendant as man and wife since 1944. Tate finally left for good and defendant divorced him in June of 1947. Deceased remained in the home except for short intervals during all of this period up to and including the date of the alleged crime. He was sick and complaining most of the time and talked about suicide at least two or three times a week. The testimony of neighbors and friends who visited the home was to the undisputed effect that there was no difficulty between defendant and deceased and that she gave him constant care and was kind to him and waited oh him many times in the night, which was necessary with his particular illness. The two children testified to this same general effect. On account of the children, deceased did not want to be spoken of as defendant's 'ex-husband.' For the last several years of his life deceased did strange and unexplainable things. He owned no property at the time of his death and was receiving an old-age pension. He caused the property which had been in his name, together with that of defendant, to be conveyed to defendant in 1947. There is no record of his having life insurance.

On the morning of February 10, 1950, defendant, at about seven thirty o'clock in the morning, took their twelve-year old boy who had very defective eyesight, to a school for children of that type at 11th avenue and Acoma street in the City of Denver. When she left home, deceased was in the house and something was said between them about his putting the cats out of the house after she left. There appeared to be nothing unusual at that time. After delivering the boy to the school, defendant then called upon an old lady at 1243 Bannock street, who was ill, and defendant, having worked in a chiroprator's office, gave the old lady some attention and care and then went to their home near East 56th avenue and Holly street in the corner of Adams county. Arriving there at about eleven fifteen o'clock A.M., she went in the back door and noticed an odor of some kind and started through the kitchen when she looked into deceased's bedroom and saw him slumped over in a chair. She said she was 'frozen' for a few moments; that deceased was tied to the chair with several strands of binder twine around his body and the twine attached to handles of a bureau or dresser nearby and connected with a 'contraption' made of four or five coat hangers in which was the automatic pistol which had been in the house for a number of years. She observed blood on the back of his head and some on his hip; that he was fully clothed in blue jacket and overalls and there was some blood on the floor. Panic stricken, she said the first thought that came to her was that he had finally done the job and that she did not want the children to ever know that he had committed suicide, and quickly decided to take the body out and bury it. With scissors, she cut the binder twine, released the body from the chair, wrapped a quilt and papers and gunny sack around his head and dragged him down the back steps for about seventy-five feet near a little house on the premises where she dug a grave approximately two feet or more in depth and rolled the body in as best she could; then poured fuel oil all over the body and the dirt; covered the grave with a sheet of corrugated iron; and then piled pieces of lumber, posts and such material on the grave and a chicken coop on top. She then went in and cleaned up every trace of the conditions in the room and took all of the twine, some shells she found on the floor, the coat hangers and an old pillow to the incinerator and burned them; she then cleaned up the floor with clorox, because she did not want the children to notice that anything had happened about which they would be asking questions. By this time it was nearly two o'clock and time for her to go after the children; she met them, and their first words were, 'How is Daddy?' She told them that he had left and was likely going to see some relatives, or words to that effect. She became ill with the 'flu' and was quite sick and troubled and distressed and on February 28, she took the children in the automobile and headed for the sheriff's office in Brighton, the children wondering where she was going. She finally aroused the sheriff and told him she had something she wanted to tell him, and wanted to tell him in the presence of the children. She then related the story, the...