Brown v. People, 17379

Decision Date03 August 1954
Docket NumberNo. 17379,17379
Citation273 P.2d 128,130 Colo. 77
PartiesBROWN v. PEOPLE.
CourtColorado 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.

MOORE, Justice.

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, 'I just shot Jerry. I just shot Jerry. * * * I shot her four or five times and I think she's dead. * * * Call the police, please.' 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, 'Call Jerry's mother. I have just shot Jerry five times.' 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 pistol was lying in the seat. I picked it up and went to put it in the glove compartment and she thought I was going to do something to her. Reaches at my hand and I jumped back, and when I jumped back, the pistol went off and hit her and she fell over and after that, I don't remember anything. I know after the first one, I heard nothing else. * * *'

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:

'Even more than that, your Honor, even more than the relationship. It is more to show what transpired, and this leads right up to the exact killing. It is all a complete part of the transaction because we contend the reason she was killed, because she was going down to sign a complaint.'

Thereupon the court permitted the question to stand, and over continuing objections the officer testified, inter alia, as follows:

'She was crying and groaning. Her physical appearance, she was bruised about the face, heavily bruised under the eyes. Her one cheek was badly bruised. She had a bad bruise above--on her chest above her right breast.

* * *

* * *

'She had a laceration on her left knee. Her blouse had grass stains and dirt stains on it. Three of the four buttons on her blouse were gone. There was a torn place under her left armpit of this blouse. In her hair there was grass, blades of grass in her hair, as well as dirt from the ground and blood stains.'

The officer further testified that she made a complaint to him, and thereupon the following testimony was admitted:

'Q. Now, without going into any conversation, against whom did she make the complaint?

'Mr. Andrews: Just a moment. Your Honor, we object to that. We object to that. That is highly improper at this time, and counsel knows it.

'The Court: Objection overruled.

'Mr. Andrews: We object to it further on the grounds of its being hearsay. That goes into the course of the conversation. [This objection was overruled.]

* * *

* * *

'Q. (By Mr. Flanigan) Did you understand my question, Officer? A. Yes, Sir.

'Q. Against whom did she make the complaint? A. She made the complaint against Marion H. Brown, Jr.'

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:

'Q. And the reason you got this pistol was because you wanted to teach Jerry some more shooting, is that correct? A. I had been teaching her how to shoot the pistol. That's the reason I got the pistol.

'Q. And each time that you obtained this pistol or this revolver, you always got it for the purpose of practicing shooting, is that right, sir? A. I have obtained that pistol more than that purpose. I used that pistol on a trip we made to Oklahoma at one time.

'Q. Any other purpose? A. No more than for target practice.

'Q. Target practice on what? A. Just empty cans, empty bottles.'

Defendant then testified that he had taken the gun...

To continue reading

Request your trial
9 cases
  • People v. Botham
    • United States
    • Colorado Supreme Court
    • June 8, 1981
    ...hearsay on statements or conduct which are not in evidence. Baney v. People, 130 Colo. 318, 275 P.2d 195 (1954); Brown v. People, 130 Colo. 77, 273 P.2d 128 (1954). Compare, Berger v. People, 122 Colo. 367, 224 P.2d 228 (1950) (evidence of acts of violence by the defendant towards the decea......
  • Oaks v. People
    • United States
    • Colorado Supreme Court
    • April 23, 1962
    ...principles' is doctrine wholly alien to our criminal jurisprudence. Green v. State, 172 Ga. 635, 158 S.E. 285. See Brown v. People, 130 Colo. 77, 273 P.2d 128. If Beaty had been present personally as a witness, he could not have testified to Oaks' Fagin-like activities, Gill v. People, supr......
  • Gill v. People
    • United States
    • Colorado Supreme Court
    • June 1, 1959
    ...by any rule of justice, as our study of the record moves us to say, defendant was not accorded a fair trial.' See also Brown v. People, 130 Colo. 77, 273 P.2d 128 wherein a judgment imposing the death penalty in a murder case was reversed by reason of the improper statements of a witness an......
  • Baney v. People
    • United States
    • Colorado Supreme Court
    • October 25, 1954
    ...as coming from the victim of the alleged assault were a mere narration of the events, hence hearsay, and not admissible. See Brown v. People, Colo., 273 P.2d 128, decided by this Court August 2, The defendant was apprehended in Kansas City, Missouri, and voluntarily returned to Colorado wit......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT