Bizup v. People, 19777
| Decision Date | 28 May 1962 |
| Docket Number | No. 19777,19777 |
| Citation | 150 Colo. 214,371 P.2d 786 |
| Parties | John BIZUP, Jr., Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles D. Pierce, Pueblo, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Robert G. Pierce, Asst. Atty. Gen., Denver, for defendant in error.
John Bizup, Jr., the plaintiff in error here, was charged with the murder of one Roy Don Bussey on or about the 25th day of March, 1960 in Pueblo County, Colorado. Bizup entered pleas of not guilty, and not guilty by reason of insanity at the time of the alleged offense charged. He was committed to the Colorado State Hospital for observation on two separate occasions and was further examined by a psychiatrist of his own choosing. At the termination of the trial on the issues the jury returned verdicts finding Bizup sane at the time of the alleged commission of the offense and guilty of murder in the first degree, and assessing his penalty at death. Bizup's motion for a new trial having been denied, he now seeks reversal by writ of error.
Bizup testified at the trial that while in the city of Pueblo on March 25, 1960, he hailed a taxi, told the driver, Roy Don Bussey, he wanted to go to the airport and then got into the back seat of the cab driven by Bussey. Bussey picked up and deposited another fare, after which, while out on the highway, Bizup fired a shot from his pistol through the floor of the cab in the back seat. He then ordered Bussey to stop the cab beside the road and asked for his money. Bussey handed over a plastic pouch containing money and a driver's license. Bizup then ordered Bussey to drive on until they came to a dirt road where Bizup ordered him to turn off, drive to the end of the road, turn around, drive half way back, stop and turn off the lights and ignition. Bizup and the cab driver conversed a few minutes, during which time Bizup advised the cab driver, in response to a question, that he would not be shot.
Bizup then handed the cab driver's license back to him and started to get out of the cab. As he did so he turned, pointed the pistol at the back of the victim's head and killed him with one shot fired at point blank range. Bizup then pulled the body from the cab and left it lying beside the road. He then drove the cab back to Pueblo where he abandoned it. Bizup was later apprehended as he was attempting to hitch-hike out of town, and, after first denying his guilt, admitted the robbery and the killing and signed the statement which was substantially the same as his recital of the occurrences as given at the trial.
The issue of the sanity of the defendant Bizup and the issue of his guilt on the substantive charge were tried at the same trial before the same jury. The defense presented a psychiatrist who testified that Bizup was suffering from a form of schizophrenia and at the time of the alleged killing was subject to irresistible impulses in that he could not choose the right and refrain from doing the wrong. In rebuttal, three psychiatrists from the Colorado State Hospital testified that in their opinion defendant was sane.
Defendant contends that the judgment should be reversed by reason of (1) refusal of the trial court to instruct the jury on second degree murder; (2) admission of irrelevant testimony and exhibits in evidence; (3) misconduct by the district attorney in final argument; and (4) permitting the district attorney to question psychiatrists with respect to the so-called 'policeman at the elbow test.'
We direct our attention first to Bizup's claim that the trial court should have submitted an instruction on second degree murder to the jury.
C.R.S. '53, 40-2-3 (Cum.Supp.) provides that 'All murder * * * which is committed in the perpetration * * * [of] robbery * * * shall be deemed murder of the first degree * * *.'
We have repeatedly pointed out that where the uncontradicted evidence was that the murder was perpetrated in the commission of one of the felonies specified in C.R.S. '53, 40-2-3 (Cum.Supp.) there is only one degree of murder, namely, murder in the first degree, and the question of second degree murder is not in the case. Jones v. People, 146 Colo. 40, 360 P.2d 686; Early v. People, 142 Colo. 462, 352 P.2d 112; Jones v. People, 93 Colo. 282, 26 P.2d 103.
Bizup contends, however, that under the facts presented here the robbery was completed when he took the deceased's money as they parked by the side of the highway and that the killing, which occurred after they had driven down the highway to a side road, was a transaction completely disassociated from the robbery. We cannot agree.
The robbery and the killing which followed were all part of the same transaction. They were so closely connected in point of time, place and continuity of action as to be one continuous transaction. All of the defendant's acts from the time he took the money until he cold bloodedly shot his victim were one continuous integrated attempt to successfully complete his crime and escape detection. His escape with his ill-gotten gains was as important to the execution of the robbery as gaining possession of the property. When the homicide is within the res gestae of the initial crime and is an emanation thereof, it is committed in the perpetration of that crime within the meaning of the statute. State v. Turco, 99 N.J.L. 96, 122 A. 844; People v. Nixon, 33 Cal.2d 688, 203 P.2d 748; State v. Fouquette, 67 Nev. 505, 221 P.2d 404; Jefferson v. State, 128 So.2d 132 (Fla.1961); Early v. People, supra.
During the course of the trial the court permitted evidence that Bizup's victim had on the day of his death cashed his pay check, paid a grocery bill and given his wife some money from the change he received. This evidence was offered and received for the purpose of showing that the deceased had money on his person shortly before he was robbed and...
To continue reading
Request your trial
-
People v. Harlan, No. 95SA298.
...places, a rational trier of fact could conclude that the offenses were part of one continuous transaction. Cf. Bizup v. People, 150 Colo. 214, 218, 371 P.2d 786, 788 (1962). We hold that there was sufficient evidence to allow a rational trier of fact to find that the attempted murder of Cre......
-
People v. Auman
...committed in the perpetration of that crime within the meaning of the statute, and all participants are liable." Bizup v. People, 150 Colo. 214, 218, 371 P.2d 786, 788 (1962); see also People v. McCrary, 190 Colo. 538, 549 P.2d 1320 Consequently, Colorado law places causation in the hands o......
-
People v. Gillis
...opined that escape is "as important to the execution of the [felony]" as the elements of the crime itself. Bizup v. People, 150 Colo. 214, 218, 371 P.2d 786 (1962) (holding that the felony-murder rule applies to a murder committed after the elements of armed robbery were met); see also Peop......
-
Yates v. State
...as well as causal connection, in determining whether a killing falls within the felony murder doctrine. See, e.g., Bizup v. People, 150 Colo. 214, 371 P.2d 786, 788 (affirming a conviction for felony murder because the killing and underlying robbery “were so closely connected in point of ti......