Berger v. People

• Citation: 224 P.2d 228,122 Colo. 367
• Decision Date: 18 September 1950
• Docket Number: No. 16203,16203
• Parties: BERGER v. PEOPLE.
• Court: Supreme Court of Colorado

Page 228

224 P.2d 228

122 Colo. 367

BERGER v. PEOPLE.

No. 16203.

Supreme Court of Colorado.

Sept. 18, 1950.

Isaac Mellman, Denver, for plaintiff in error.

John W. Metzger, Atty. Gen., Joseph E. Newman, Deputy Atty. Gen., Raymond B. Danks, Asst. Atty. Gen., for defendant in error.

ALTER, Justice.

John J. Berger, Jr. was charged with murder of the first degree. The jury found him guilty of that offense and imposed the death penalty. He was sentenced accordingly, and is here by writ of error seeking a reversal of the judgment.

In the information it was charged that on January 27, 1948, in the City and County of Denver and state of Colorado, defendant did unlawfully, feloniously, wilfully and deliberately, and of his premediated malice aforethought, kill and murder one Josephine Berger.

Upon arraignment on February 10, 1948, defendant entered a plea of not guilty and not guilty by reason of insanity at the time of the offense, since and now. On May 10, 1948, he withdrew his plea of not guilty by reason of insanity theretofore entered, and on June 21, 1948, trial was begun on his plea of not guilty only. It was concluded June 30, 1948, and on the afternoon of said day the jury returned its verdict.

The undisputed evidence is that defendant and deceased were married on January 29, 1940, and, as the issue of this marriage, four children were born. Robert, the eldest, was seven and one half years old at the time of the trial. Prior to moving to Denver and subsequent to their marriage, deceased and defendant resided near Brighton, Colorado, on a farm. In June, 1947, defendant was sentenced to a term in the state penitentiary upon his conviction of fourth degree arson, and it appears from the record that at the time he was being taken to the penitentiary, when told that on good behavior his sentence would be shortened and he would again be at liberty, he stated that in such event he would only be out for a short period because it was his intention, upon his release, to kill his wife and his mother. He was released from the penitentiary on the morning of January 26, 1948, and enroute purchased liquor, some of which he had in his possession when he arrived at his residence in Denver. The murder was perpetrated at some time between the hours of 11:30 P. M., on January 26, 1948, and 3:00 A. M. on January 27, 1948.

The domestic life of defendant and deceased was marked by frequent quarrels, many of which resulted in defendant striking and brutally beating the deceased. Either at the time of the death of the deceased or prior thereto, a divorce action was pending. Defendant accused his wife of infidelity, and on at least one occasion brutally beat her and her alleged paramour.

Defendant arrived home after the evening meal and while his wife was washing the dishes. After the dishes had been washed, defendant and his wife were 'fussing,' and defendant then stated that he could get a better wife than was the deceased. After the children had gone to bed and before defendant and his wife retried, defendant drank some of the liquor remaining in the bottle which he had in his possession on arrival. At some time during the night, and as definitely as is fixed by the evidence, at about 12:30 A. M., there was some commotion in the bed occupied by defendant and his wife, and he was seen choking her. Shortly thereafter defendant arose and poured some whiskey on his wife's face while she remained perfectly still and silent. Defendant again retired, and in the early morning awakened the children, stating that they were to go to Brighton to visit his father. At the time the children arose, their mother was still in bed, her face was bloody, and apparently she had not moved. Defendant and the children missed the bus, and returned to their home, the mother being still on the their home, the mother being still on the bed and apparently lifeless. One of the younger brothers, at the suggestion of Robert, accosted a passerby and asked him to notify the police. In the meanwhile defendant had left home and was not there when the police arrived at about 8 o'clock and found the mother dead. Defendant was arrested at about 11 o'clock that morning and subsequently charged with murder and tried, the trial resulting as hereinbefore indicated.

On the discovery that Mrs. Berger was dead, the coroner was called, took charge of the remains, and also took some of the bed clothing which was stained by blood or other substance. An autopsy was performed and finding made that the death of deceased was due to asphyxia, resulting mainly from strangulation, was not due to natural causes, and was not self-inflicted. The coroner took stain specimens from defendant's clothing. An analysis of these stain speciments, as well as the blood and other substances found on the bedding, disclosed them to be the same as deceased's blood type, and wholly different from defendant's, a specimen of which he had voluntarily given and which had likewise been analyzed. While the plea of not guilty by reason of insanity was before the court, defendant was sent to the Colorado Psychopathic Hospital for observation, and, according to the testimony of a psychologist from that hospital, found to be sane. He was uncooperative with the physicians there, and was sullen, bitter, antagonistic, hostile and mean. While at the hospital he denied that he had killed his wife, but stated that he felt that she was being unfaithful to him, and for this he had beaten her, and he thought that she deserved to be killed; that he felt neither sorrow nor remorse, but elation because of her death.

It is disclosed by the evidence that when defendant was drinking he was mean, brutal and pugilistic, as well as highly quarrelsome. He was frequently arrested because of treatment of his wife and others; served some short jail sentences; paid fines for this; and on two occasions prior to 1948, because of his excessive use of alcoholic liquors, was sent to the Colorado Psychopathic Hospital for observation. At some time prior to his conviction of fourth degree arson, and while employed, he sustained a back injury for which he received a considerable sum of money as damages, part of which, at least, he shared with his wife. So far as the record here reveals, this injury was very remotely, if at all, accountable for defendant's disposition. While he was serving his sentence in the Colorado Penitentiary, this back injury resulted in his being relieved of heavy work and light duties were assigned to him.

When defendant was questioned by the officers, after his arrest, he stated that his wife had helped dress the children for their visit to their grandfather, and that upon his return, after missing the bus, he found her gone from the home.

After the officers arrived at the home and found the murdered wife, a broadcast for defendant's arrest was made, and while he was at a bar he heard two officers inquire about a man whose description corresponded with his; thereupon he removed his jacket and an extra pair of trousers and left the bar, passing the officers, who did not recognize him as the man wanted. Prior to the incident just related, defendant had given his watch to a bartender for a pint of whiskey.

It is seriously contended that prejudicial error was committed in permitting Robert, the eldest son, to testify as to the occurrences in their home at the time of the homicide, from the time defendant returned thereto until the following morning. When Robert was called as a witness, and on objection by defendant's counsel, the court, out of the presence of the jury, made an extended examination as to Robert's competency as a witness, and both counsel were given full opportunity to question him. In addition to the interrogation by court and counsel, a psychologist in the Mental Hygiene Clinic of the Colorado Psychopathic Hospital testified at length as to Robert's mental condition, and from her extended examination, reached the conclusion that Robert was competent to testify. The court, as a preliminary matter, determined, accordingly, and he was permitted to testify. During his examination as a witness he was so interrogated by counsel for both the People and defendant that the jury had a fair and reasonable opportunity to judge as to his competency as well as his ability to accurately relate the incidents occurring in the home at the time of his mother's death, and while there were some discrepancies in his testimony, they may be characterized as trivial, and, considering his age, reflect truthfulness rather than the contrary.

Defendant did not testify; however his counsel called several witnesses for the purpose of establishing a mental derangement in order to enable the jury to determine, in the exercise of its discretion, whether to fix the penalty at death or imprisonment for life should its verdict by guilty of murder of the first degree. Generally the witnesses testified that while defendant was not as quick and alert mentally as some other persons, nevertheless he could distinguish right from wrong, and, having made such distinction, was mentally capable of adhering to the right and refraining from the wrong. Other witnesses for defendant testified negatively that they had never seen defendant beat, strike or otherwise abuse his wife.

At the conclusion of all of the evidence, the court denied defendant's motion, which was: 'If the Court please, the defendant desires to move at this time, at the conclusion of the evidence of all parties in this case, that the Court withdraw from the consideration of the Jury and question as death penalty herein, and that a verdict for such penalty be not submitted to the Jury. And as grounds for this motion, that no confession or admission by the defendant of the killing of the deceased Pauline Berger has been offered or admitted in evidence; and that the only evidence of an alleged eye witness to the said killing was the witness Robert Berger, the seven...