Andrews v. People

• Decision Date: 06 February 1905
• Citation: 79 P. 1031,33 Colo. 193
• Parties: ANDREWS et al. v. PEOPLE.[*] ARNOLD v. SAME.
• Court: Colorado Supreme Court

79 P. 1031

33 Colo. 193

ANDREWS et al. v. PEOPLE.^[*]

ARNOLD v. SAME.

Supreme Court of Colorado

February 6, 1905

Error to District Court, City and County of Denver; P. L. Palmer Judge.

Newton Andrews and another and Fred Arnold were separately convicted of murder, and bring error. Affirmed.

Plaintiffs in error in each of the above-entitled causes were convicted of murder in the first degree, and sentenced to suffer the death penalty. They were originally informed against jointly but plaintiff in error Arnold was tried separately. The questions presented in each case being in many respects identical, they will be disposed of in one opinion. The main questions raised are (1) the sufficiency of the information under the testimony, to justify a verdict of murder in the first degree; (2) the validity of the capital punishment act (3) alleged errors in giving and refusing instructions; (4) the admissibility of testimony; and (5) overruling motion of defendant Peters for change of venue. The necessary data for an understanding of the questions considered and decided appear in the opinion.

Jas. B. Belford, Willis V. Elliott, and J. M. Essington, for plaintiffs in error.

H. A. Lindsley, F. W. Sanborn, Atty. Gen., and H. J. Hersey, Asst. Atty. Gen., for the People.

GABBERT C.J. (after stating the facts).

1. The information charged that the defendants (after stating the date and venue) 'did feloniously, willfully, and of their malice aforethought, kill and murder one Amanda Youngblood, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Colorado.' At the trial it developed from the testimony that the defendants entered the house of the husband of the deceased with intent to commit a robbery, and that the homicide was committed in the attempted perpetration of that crime. Mrs. Youngblood was killed by a shot fired by either Andrews or Arnold. Counsel for the defendants now urge that the information was insufficient, under this testimony, to justify a conviction of murder in the first degree, for the reason, as they claim, that where two or more are jointly indicted for the crime of murder, which was committed in the perpetration of, or attempt to perpetrate, a felony, and the killing was done by one, but in the absence of proof of a joint purpose to kill, it is necessary for the information to allege or charge that the homicide was committed in the perpetration of, or attempt to perpetrate, one of the felonies named in the statute on the subject of murder. In other words, they contend that because the statute provides that the commission of murder in the perpetration of, or attempt to commit, the crime of robbery, constitutes murder in the first degree, which may be punished by death if the jury so determine, it was necessary to allege that the homicide was committed by the accused in the perpetration of, or attempt to perpetrate, that crime, in order to justify a verdict of guilty of murder in the first degree, based upon the fact that the homicide was committed by the defendants in the perpetration of, or attempt to perpetrate, robbery. Murder is defined to be 'the unlawful killing of a human being with malice aforethought, either express or implied.' Section 1174, 1 Mills' Ann. St. The statutes of the state further provide that 'all murder * * * which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * or perpetrated from a deliberate and premeditated design, unlawfully and maliciously to effect the death of any human being other than him who is killed * * * shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree.' Section 2, Laws 1901, p. 153, c. 64; 3 Mills' Ann. St. Rep. Supp. § 1176. The degrees of murder mentioned in this section are not substantive or independent offenses. The purpose of these distinctions is to fix the punishment which shall be inflicted according to the circumstances in which the murder was committed. Section 1433, 1 Mills' Ann. St., designates what shall be sufficient to allege in an indictment or information for the crime of murder. Inter alia, it provides that 'in any indictment for murder * * * it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously, wilfully and of his malice aforethought, kill and murder the deceased.' This provision does not contemplate a charge of murder which shall specifically state any degree of that crime. If it did, or if its provisions were insufficient for any reason, then it would be necessary, in order to state the crime of murder which had not been committed in the perpetration of, or attempt to perpetrate, a felony, to allege that the homicide was committed with deliberation and premeditation; and yet this court has repeatedly held that these averments are not necessary in an indictment or information for murder, but that the allegations provided by statute are sufficient to support a verdict of murder in the first degree. Redus v. People, 10 Colo. 208, 14 P. 323; Jordan v. People, 19 Colo. 417, 36 P. 218; Holt v. People, 23 Colo. 1, 45 P. 374. It designates what shall be sufficient to state in any information or indictment in order to charge the crime of murder; i. e., the unlawful killing of a human being with malice aforethought, as defined by the statute. Under such a charge, the person accused will be convicted or acquitted, according to the proofs; and, if convicted, the circumstances in which the murder was committed, as designated by the statute respecting the degree of the crime, as it is termed, determines the punishment which shall be inflicted. In short, the statute defines murder, and the section upon which counsel for defendants rely does not create or define distinct offenses of that crime, but merely distinguishes between grades of punishment which shall be inflicted upon one convicted of murder, according to the circumstances in which it was committed. Nor does the statute, in prescribing what shall be sufficient to allege in any indictment or information for murder, violate any constitutional rights of the condemned, under the guaranty that 'in criminal prosecutions the accused shall have the right * * * to demand the nature and cause of the accusation.' The charge was the murder of Mrs. Youngblood, and they were thus fully informed of the nature and cause of the accusation against them. Jordan v. People, supra; Graves v. State, 45 N. J. Law, 347, 46 Am.Rep. 778; State v. Pike, 49 N.H. 399, 6 Am.Rep. 533; Dwyer v. State, 12 Tex. App. 535; People v. Murray, 10 Cal. 309; Cathcart v. Commonwealth, 37 Pa. 108; 10 Enc. Pl. & Pr. 115. A valuable discussion of these questions will be found in note 12 to People v. Sullivan, 63 L.R.A. 353, 393. An additional authority in support of the conclusion that in an indictment for murder it is not necessary to state more than the statute provides, in order to sustain a conviction of murder in the first degree, based upon the fact that the homicide was committed in an attempt to perpetrate one of the designated felonies, is found in the statute itself. It provides that, where one indicted for murder pleads guilty, a jury shall be impaneled to determine the degree of the crime; thus clearly demonstrating that, on an indictment for murder in the statutory form, the circumstances in which the homicide was committed is a matter of proof, and not of pleading.

2. The validity of the capital punishment act is attacked upon the ground that the requirements of the Constitution (section 22 art. 5), which designates the steps to be taken and the formalities to be observed in the passage of bills, were not complied with. The bill originated in the House, and the specific objections urged which we shall consider are that on the passage of the bill by the Senate it was not read the third time, that the amendments made by the Senate were never printed by the Senate, and that the amendments made by the Senate were not printed by the House. No statements upon which these objections can be successfully based appear either expressly or impliedly from the journals of either the Senate or House. The House journal does show that the Speaker gave notice of filing a protest against the bill, but upon what ground is not stated. It does not appear that such protest was ever filed, or any action taken thereon. It appears from the House journal that: 'It was moved and seconded that amendments were printed on Senate calendar of March 29th for the use of the members. An amendment was offered that the amendments to House bill No. 71 had not been printed on House calendar, or otherwise, for the use of the members, prior to the vote on the bill.' No action appears to have been taken on this motion or the amendment, and the mere record of notice of a protest, which it does not appear was ever filed or acted upon, or of a motion to amend, which the journal is silent as to any action upon, and which it does not appear were ever submitted, are insufficient from which to deduce the conclusion that the constitutional requirements with respect to the printing of amendments were not observed. In determining whether the constitutional requirements with respect to the passage...