Brown v. People, 17379
Decision Date | 03 August 1954 |
Docket Number | No. 17379,17379 |
Citation | 273 P.2d 128,130 Colo. 77 |
Parties | BROWN v. PEOPLE. |
Court | Colorado Supreme Court |
Irving P. Andrews and Marilyn T. Meadoff, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank A. Wachob, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, to whom we will hereinafter refer as defendant, was charged with having committed the crime of first degree murder by information filed in the district court of the City and County of Denver. He entered separate pleas of not guilty, and not guilty by reason of insanity at the time of the alleged commission of the crime. He first was tried on the issue of guilt or innocence pursuant to procedures directed by chapter 144, Session Laws of Colorado 1951. The verdict of the jury upon the trial was guilty of murder of the first degree and the penalty was fixed at death. Thereafter another jury was summoned to determine the issues raised upon the plea of not guilty by reason of insanity. The verdict returned upon that issue was that defendant was sane. Thereafter defendant, by petition, raised the issue as to whether he had become insane after the verdict of guilty and before judgment was entered. On that issue a third jury found defendant had not become insane since the commission of the crime and was presently sane.
Upon the first trial it appeared from the evidence that defendant and the deceased, Jerry Houston, with whom he had been keeping company for about nine months, spent the late afternoon and night of September 6, 1952, drinking and taking various friends and soldiers about the city and to Lowry Field; that they awakened on the morning of September 7, 1962, in the apartment of a friend and had breakfast at a restaurant; and that they separated for a brief time during which defendant drove to his sister's home and got a pistol for the purpose, as he said, of doing some target shooting. After procuring the pistol he again picked up deceased and they drove to a drugstore where they had a soft drink and returned to the car. Deceased got in the front seat and defendant took his place behind the wheel. When they entered the car the pistol was on the front seat. Defendant admitted picking up the pistol and stated that he started to put it in the glove compartment when deceased, apparently believing she was in danger, grabbed for it. Defendant stated that 'it went off,' but after it discharged once he couldn't remember anything. Deceased was shot five times, as the result of which she died.
With the body in the car defendant drove to his home where, as witness Sessions testified, defendant said, Defendant had the gun in his hand and went upstairs to his room where he removed the empty cartridge shells from the pistol and reloaded it. He then left his room and went to the house where he and deceased had spent the night, and witness Bertha Mae Lincoln Testified he said, Upon being asked if she was dead he replied, 'If she wasn't, I'd put five more bullets in her * * *.' According to the landlady, Mrs. Rice, defendant made a statement to her in which he admitted, in substance, that he had shot deceased five times, and he requested her to go with him to the car to see if Jerry was dead, again stating, if she wasn't he 'would finish her.'
Defendant was placed under arrest and made a written statement in the presence of investigating officers, which we quote in part as follows:
* * *'
The shooting took place September 7, 1952. Police Officer Gale, called as a witness, was asked whether he had seen the deceased, Jerry Houston, on September 4, 1952. He answered that he had seen her at 5:00 o'clock in the morning at 2908 Williams street. On direct examination he also was asked, 'Will you describe her appearance at that time, Officer?' Counsel for defendant objected to the testimony, and, out of the hearing of the jury, considerable discussion took place between counsel and the court in which the latter inquired of the District Attorney whether the purpose of the question was to show generally the relationship between defendant and deceased, and the prosecutor replied:
Thereupon the court permitted the question to stand, and over continuing objections the officer testified, inter alia, as follows:
* * *
* * *
The officer further testified that she made a complaint to him, and thereupon the following testimony was admitted:
'The Court: Objection overruled.
* * *
* * *
The only other testimony in the record relating to any incident on September 4, 1952, was that of a taxi driver who stated that between 2:00 and 3:00 o'clock in the morning on that date he drove deceased and defendant to an address on East 22nd avenue; that as he got out to collect his fare he heard cursing and loud talking and, 'then all of a sudden I see both of them hit the ground, and as they both hit the ground I see they are down there on the ground scuffling.' He further testified, in substance, that he touched Brown on the back and told him that he shouldn't do that, and that Brown got up and the girl got back in the car and thereupon defendant told her that he didn't ever want her back in his house again. On cross-examination the taxi driver stated that at no time did he see defendant strike the girl; that he didn't know whether they had fallen to the ground, or how they got there; that there had been no fight in the cab; and that he had seen them together thereafter, apparently on good terms.
One of the questions, hereinafter considered, arises out of the cross-examination of defendant. On direct examination he stated that while deceased waited for him he went and got the gun for the purpose of going target shooting with her, and that he and deceased had gone target shooting on other occasions. On cross-examination the following testimony, inter alia, was introduced:
Defendant then testified that he had taken the gun...
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