Graham v. People, 13572.

• Decision Date: 29 October 1934
• Docket Number: 13572.
• Parties: GRAHAM v. PEOPLE.
• Court: Colorado Supreme Court

38 P.2d 87

95 Colo. 544

GRAHAM v. PEOPLE.

No. 13572.

Supreme Court of Colorado, En Banc.

October 29, 1934

Error to District Court, Mesa County; George W. Bruce, Judge.

Charles Eliga Graham was convicted of first degree murder, and he brings error.

Reversed and cause remanded for new trial.

Wm. Weiser, of Grand Junction, and Gail L Ireland, of Denver, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Charles H. Queary, Asst. Atty. Gen for the People.

ADAMS C.J., did not participate.

Charles Eliga (Elijah) Graham was charged with the murder of Vina Glazier. He was found guilty of murder of the first degree and was sentenced to death. He seeks a reversal of the sentence.

The defendant being unable to employ an attorney, having no funds or property, the court appointed William Weiser, a member of the bar, to represent him. Upon arraignment, the defendant by his attorney, pleaded not guilty by reason of insanity at the time of the alleged commission of the crime and since. Thereupon the court, Judge Logan presiding, committed the defendant to the Colorado State Hospital at Pueblo for observation, as provided in section 2, c. 90, Sess. Laws 1927, section 7121.2, C. L., 1932 Supplement. After having the defendant under observation for twenty days, Dr. Zimmerman, the superintendent of the hospital, reported to the court that the defendant was insane at the time of the examination and at the time of the alleged commission of the crime. The people did not subpoena Dr. Zimmerman; and, as the hospital is not within the judicial district where the trial was held and is not within 100 miles of the place of trial, the court had no power to have the witness subpoenaed at the expense of the people. C. L. § 7121; Osborn and Noakes v. People, 83 Colo. 4, 262 P. 892. The report of the doctor could not be introduced in evidence, and the defendant was unable to procure his attendance at the trial. The court, however, appointed three disinterested and capable physicians, Dr. B. L. Jefferson, Dr. E. H. Peterson, and Dr. Frank J. McDenough, a commission to examine into the mental condition of the defendant. Dr. Jefferson is superintendent of the State Home for Mental Defectives, and has been giving his entire time to the treatment of mental defectives in that home. They reported that they examined the defendant on numerous occasions and found him to be dangerously insane.

The people are not required in the first instance to offer proof of sanity, sanity being presumed in the absence of evidence tending to show the contrary. But when evidence is introduced tending to show insanity, the people have the burden of proving beyond a reasonable doubt the sanity of the defendant. Strictly speaking, the burden of proof does not shift. The defendant never has the burden of proving insanity. If, upon a consideration of all the evidence, the jury have a reasonable doubt whether the defendant was sane or insane at the time of committing the act, they must find the defendant not guilty. Pribble v. People, 49 Colo. 210, 112 P. 220; De Rinzie v. People, 56 Colo. 249, 138 P. 1009; Ingles v. People, 92 Colo. 518, 22 P.2d 1109.

The people's evidence in chief was directed to the commission of the act and to the surrounding circumstances. The defendant called the three physicians constituting the commission appointed by the court. Each testified that the defendant was dangerously insane at the time of the homicide and at the time of the trial. The evidence in chief was not of a character to shed any light upon the mental condition of the defendant; and as he did not testify, the jury had no opportunity to form an opinion concerning his sanity, based upon his appearance and demeanor upon the witness stand and the coherence or incoherence of his testimony. His counsel say that they doubt the propriety of putting an insane person on the witness stand in any kind of case.

The people offered no evidence in rebuttal. If any evidence was obtainable, from either expert or nonexpert witnesses, that would show or then to show that the defendant was sane, it was the duty of counsel for the people to produce it; but no such evidence was offered, and in the circumstances its absence is significant. The strong showing of insanity made by the testimony of reputable, disinterested, and impartial physicians who were selected, not by the defendant but by the court, was not met even by one word of testimony to the contrary. The verdict is incomprehensible, save upon the supposition that the brutal character of the killing so aroused the passion and prejudice of the jurors as to cause them to overlook or disregard the court's instructions.

When overruling the motion for a new trial and passing sentence, Judge Bruce, who presided at the trial, said among other things: 'I cannot determine whether you are sane or insane; I have my own notion about it, but all I can do is to pronounce sentence as decreed by the jury after the trial in which you were very ably represented. * * * All I can do is to pronounce sentence as fixed by the jury, with the recommendation, which I will incorporate in the order by separate letter or advice to the Governor. The Reporter is taking down all I say, and it can go to the Governor with the recommendation that he appoint a commission to examine into your sanity and determine whether you are sane or insane, and if you are insane, the State has a way of taking care of you the rest of your life, and if you are sane, it will be the duty of the state to take your life as a penalty.'

What the judge thought about the mental condition of the defendant is made clear in his letter to the Governor, referred to in his remarks, quoted above. The letter, dated March 22, this year, referred to Dr. Zimmerman's report and the report and testimony of the three physicians appointed by the court and stated:...