Archina v. People

• Decision Date: 27 February 1957
• Docket Number: No. 17793,17793
• Citation: 307 P.2d 1083,135 Colo. 8
• Parties: Francisco ARCHINA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 1083

307 P.2d 1083

135 Colo. 8

Francisco ARCHINA, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 17793.

Supreme Court of Colorado, En Banc.

Feb. 27, 1957.

Anthony F. Zarlengo, William L. Rice, Felix D. Lepore, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Norman J. Comstock, Asst. Atty. Gen., for defendant in error.

HALL, Justice.

Francisco Archina, plaintiff in error herein, to whom we shall refer as defendant and at times as Frank Archina, by information filed in the District Court of the City and County of Denver on January 28, 1954, was charged with the murder of Elizabeth Marci. Being arraigned on March 29, 1954, the defendant entered two pleas:

(a) Not guilty.

(b) Not guilty by reason of insanity at the time of the alleged commission of the offense.

The case was then continued to August 23, 1954, for trial. On entry of the plea of not guilty by reason of insanity, defendant was ordered committed to the psychopathic ward of the State Hospital at Pueblo, Colorado, for observation and examination as to his sanity; said commitment being for a period not exceeding twenty days which period was, by order of Court, extended for an additional thirty days. The observation and examination of defendant was completed May 26, 1954, and a written report made to the Court by the Colorado State Hospital which expressed the opinion that the defendant was sane at the time of the alleged commission of the crime.

On August 13, 1954, the district attorney filed notice of intent to take the deposition of Edward S. Johnson, whose address is Denver General Hospital. The witness appeared as required by subpoena issued and served in Denver August 19, 1954. On August 23, 1954, the deposition of Dr. Edwin S. Johnson, a witness in behalf of the People, was taken. Selection of a jury to try the case on the not guilty plea was commenced on August 23, 1954. Prior to the taking of the Johnson deposition, there was considerable argument over the propriety of taking the deposition at that time and over the question as to whether the witness could be present when needed, probably August 26, 1954. Out of this argument and discussion and the testimony of Dr. Johnson, it appeared that he would not be able to appear as a witness as late as August 24, 1954, for the reason that he had been called to active duty with the Air Force for overseas duty in Germany and was then under orders to report at Gunter Air Force Base, Montgomery, Alabama, on August 30, 1954; he stated that he intended to drive his car to Alabama and to take the same with him overseas; that in order to reach his station by August 30, 1954, he would have to leave Denver August 26, 1954; that he could not stay over and fly to Alabama for he had no way to get his car there; that for the present his wife was to stay with her folks in Wichita:

'She will not be able to go over with me until several months have elapsed.'

For reasons that have no bearing on the issues now before this Court, a mistrial was declared on August 26, 1954. The Johnson deposition was not offered at that trial.

On January 11, 1955, an order was entered setting the case for trial on March 7, 1955. On February 9, 1955, the district attorney filed with the clerk of the court praecipe for subpoena for:

'All witnesses endorsed on the information * * * returnable March 7, 1955, at 9:30 A.M.'

Among the witnesses endorsed on the information is:

'Dr. Johnson-Denver General Hospital'

Pursuant to said praecipe, subpoena was issued by the clerk on February 10, 1955 whereby the sheriff was commanded to serve the same upon, among others:

'Dr. Johnson-Denver General Hospital'

The sheriff made return on the subpoena showing service on three witnesses (not Dr. Johnson) and stated in writing on the subpoena:

'After diligent search; I have been unable to find the within named Dr. Johnson.'

Signed: George Hayes

'This doctor is in the army service--not available.'

On March 10, 1955, being the fourth day of the trial, the district attorney requested the court to ask the bailiff if Dr. Edward S. Johnson is available for testimony.

The Court, addressing the bailiff, said:

'Well, you inquire as to whether or not Dr. Edward S. Johnson is among those witnesses out there or anywhere in that hallway.'

Whereupon, the bailiff left the court room and returned shortly thereafter. On his return, the Court said:

'Is Dr. Johnson out there, Mr. Bailiff?'

The bailiff answered:

'He is nowhere there.'

The district attorney than stated that the court record should show:

'That the witness, Dr. Edward S. Johnson, was not able to be obtained.'

The district attorney then offered in evidence the deposition of Dr. Edward S. Johnson.

Defendant's counsel objected to the admission of the deposition until the district attorney show that the doctor was not available. The district attorney stated that he was then ready to make a showing that Dr. Johnson was not available and, to that end, in the absence of the jury, called as a witness, George Hayes, deputy sheriff, who testified that about twenty days previously he had made an effort to serve a subpoena on Dr. Edward S. Johnson of the Denver General Hospital, that he was unable to make service and made the return set forth above. In answer to questions as to what he did in his efforts to make service, he stated:

'(a) I made inquiry in the coroner's office and was told he was in the Armed Forces.

'(b) I proceeded to the emergency ambulance crew and received the same reply--that he was in the Armed Service of the United States.

'(c) I proceeded to the business office or personnel office, of the Denver General Hospital, where I inquired and received the same answer there, and also by the telephone operator.'

On cross-examination, the witness stated that he asked only for Dr. Johnson as shown on the subpoena and never asked for a Dr. Edward S. Johnson, that he made no inquiry except as outlined above, he never made inquiry at Lowry Filed, Denver, at Rocky Mountain arsenal, made no inquiry as to where Dr. Johnson resided, that he has no information as to the whereabouts of Dr. Edward S. Johnson other than what several people at the Denver General Hospital told him concerning a Dr. Johnson.

The court admitted the deposition in evidence and in doing so said:

'I believe there has been a definite showing, and not on the deposition alone, that Dr. Edward S. Johnson who is a witness in this matter was called to the Armed Services and has proceeded under orders to report. Where he is at this time is unknown to this Court, counsel on either side, and the Sheriff's office. The Court will admit this exhibit subject to the objections made by counsel for the defense as to any portion thereof at which time the rulings will be made.'

The evidence produced at the trial on the not guilty plea stands without contradiction. Defendant did not testify and offered no testimony.

The record shows that the defendant, age 22 years at the time of trial, had been born and raised and resided in Italy until some time shortly prior to December, 1952, when he and his brother, Luigi Archina, arrived in the United States, whereupon they proceeded to Denver and took up their residence with the Frank Macri family consisting of Frank Macri, Sr., his wife, Elizabeth Macri, his sons, Steve Macri and Frank Macri, and daughters, Rose Macri Archina, wife of the defendant and Mary Macri Archina, wife of Luigi Archina. The residence was located at 3949 Tejon Street, Denver, Colorado.

On Sunday, January 24, 1954, all of the Macri family and the Archina boys had their noon meal together at 3949 Tejon Street. Following the noon meal, Frank Marcri, Sr., Frank Macri, J., Luigi Archina and the defendant, Frank Archina, all went out in front of the house; Steve, at the same time, went to the rear of the house to wash his car; Rose, Mary and Elizabeth remained in the kitchen clearing the table and washing the dishes. Shortly after the four went out in front of the house they all returned, coming in the front door. As they entered the house, Rose, who was in the kitchen, heard her father and brother arguing with the Archina brothers in the living room; the only words she heard were from defendant:

'You don't know how to teach children.'

to which Frank Macri, Sr. answered:

'I know, because I was born before you.'

Thereupon, defendant threw Frank Macri, Sr. to the floor, the three women went to the living room, Elizabeth Macri was standing in the middle of the doorway leading upstairs when defendant started upstairs and threw Elizabeth to the floor and he and his brother, Luigi, went upstairs. Frank Macri, Sr., Elizabeth Macri, Frank Macri, Jr., Rose Macri Archina and Mary Macri Archina all went into the bedroom. Frank Macri, Sr. took a double-barrel shotgun from behind a dresser in the bedroom, Rose went out back to call her brother, Steve, and she and Steve re-entered the house and went into the bedroom where Steve Macri saw his father, Frank Macri, Sr., with a double-barrel twelve-gauge shotgun in his hand and at the dresser searching for shells, whereupon Steve Marcri went out to call the police.

Rose, Mary and Elizabeth went inside the clothes closet in the bedroom and closed the door, Frank Macri, Sr. and Frank Macri, Jr. were in the bedroom; shortly, Rose heard a shot, then another, then heard screaming. The door of the closet was opened by defendant who held a doublebarrel shotgun which he loaded and fired twice into the head of Elizabeth Macri, killing her. Elizabeth, at the time she was killed, was kneeling in the closet, 'asking pity and grace for him not to shoot'. The defendant then took out the empty shells, reloaded the gun and fired two shots into the body of Mary, inflicting wounds resulting in her death on February 10, 1954; the defendant then took out the empty shells, again loaded the gun and tried...