Bulger v. People

• Decision Date: 12 July 1915
• Docket Number: 8496.
• Parties: BULGER v. PEOPLE.
• Court: Colorado Supreme Court

151 P. 937

60 Colo. 165

BULGER v. PEOPLE.

No. 8496.

Supreme Court of Colorado

July 12, 1915

Rehearing Denied Oct. 4, 1915.

Error to District Court, City and County of Denver; Hon. John A Perry, Judge.

James C. Bulger was convicted of murder in the first degree, and he brings error. Affirmed.

Hill Scott, and Teller, JJ., dissenting.

George L. Nye and A. T. Monson, both of Denver Paul W. Lee, of Ft. Collins, and M. H. Aylesworth, of Denver for plaintiff in error.

Hon. Fred Farrar, Atty. Gen., and Clarence M. Hawkins and Ralph E. C. Kerwin, Asst. Attys. Gen., for the People.

WHITE J.

James C. Bulger, the plaintiff in error, shot and killed Lloyd F. Nicodemus in the latter's hotel in the city and county of Denver on the 7th day of May, 1914, and was thereafter, in relation to the matter, charged with murder in the first degree, tried and convicted thereof, and, in accordance with the verdict of the jury, sentenced to death, and brings the cause here for review. The alleged insanity of the defendant was the sole defense interposed.

In order to dispose of the assignments of error it is necessary to briefly state the facts. J. C. Starkweather and the deceased were joint managers of the Savoy Hotel, and defendant Bulger and one Hugh Clark were both guests thereof. Prior to the day of the homicide the latter were not acquainted. Shortly before 2 o'clock on that day they, in company with others in the bar of the hotel engaged in conversation relative to the possibility of war between the United States and Mexico. Bulger believed there would be war and was engaged in organizing a regiment for the purpose of participating therein. Some one present undertook to formally introduce Bulger and Clark, whereupon the latter publicly and rudely announced his disinclination to meet the former, and Bulger thereupon made the remark, 'All right, I will see you in five minutes,' and left the room. He entered a taxicab, riding over the city and to various places with apparently no definite purpose in view, except that he took a few drinks, called upon his lawyer and received some money which the latter held for the former. and made two trips to a hardware store where he purchased a couple of revolvers and some cartridges. These, for a time, he intrusted to the chauffeur. He returned to the hotel about 3:30, entered the bar where he had left Clark, and, the latter being therein, the two engaged in a quarrel, which resulted in a fight in which Bulger was severely beaten and bruised upon the face. As a result of the beating, Bulger was greatly excited and enraged, left the bar bleeding profusely, entered the hotel lobby talking in a boisterous and excited manner. He was thereupon taken to his room by Starkweather, a police officer was called, and, after some conversation, Starkweather requested Bulger to pay his bill and leave the hotel. The bill was paid, and thereafter Bulger was led from the hotel by the officer, again entered the taxicab, and was driven over the city in much the same way as hereinbefore stated. He requested, and received of the chauffeur, the packages containing the revolvers and cartridges, and, after some further riding in the same aimless manner, directed that he be taken to Lincoln and Eighteenth streets, about a block and a half from the hotel. At this point he left the taxicab and walked to the hotel, entering the lobby thereof holding a revolver in each hand. He repeatedly, and in a loud tone of voice, said he was looking for the man who 'had beaten him up.' Nicodemus, the deceased, was standing at the clerk's desk or counter, and the defendant approached him, saying, 'Show the man that hit me,' to which Nicodemus replied: 'Colonel I was abed and asleep; I don't know who hit you.' The defendant continued the demand in a very loud voice, whereupon Nicodemus walked towards the telephone, and requested the operator or an employé to call an officer. Thereupon defendant said, 'He is going to telephone for them to get me, but I will get him,' and walked rapidly toward the private office into which Nicodemus had entered. Defendant entered the door and almost instantly fired two shots inflicting upon Nicodemus the fatal wound.

There was evidence tending to show that defendant is of an adventurous spirit and roving disposition; that he had been a soldier in the United States army serving in the Philippine Islands, a ranchman, a land speculator in Colorado, a soldier in Central America, and an officer in Madero's army in Mexico; that his grandfathers had been addicted to the use of intoxicants; that his uncle was a heavy drinker, and that his father frequently had delirium tremens; that his mother, who at the time of the trial was approximately 60 years of age, was of a moody and melancholy disposition; that the age of defendant is 33 years, and for several years prior to 1912 he was of a cheerful temperament, neat in his appearance and friendly in his disposition, and was somewhat addicted to the excessive use of intoxicating liquors; that he left Denver in the summer of 1912, and shortly thereafter was shot in the head, where the bullet remained imbedded; that he returned to Denver in April 1914; that upon his return he appeared to be slovenly and careless of his personal appearance and dress, drank to excess, and was more nervous, excitable, and easily aggravated than before; that at times he was subject to certain delusions, and, in the opinion of some witnesses, including experts, was insane at the time of the homicide. There was evidence upon the part of the prosecution, including testimony of experts, tending to establish the sanity of the defendant. We will advert to other evidence in the discussion of some of the assignments of error.

An instruction upon delusional insanity, given to the jury over the objection of defendant, constitutes one of the principal grounds relied upon for reversal. The objection thereto is that:

'It singles out one element of insanity, namely, the element of insane delusions, and instructs the jury upon that element as separate and distinct from general insanity which is the plea of the defendant in this case.'

Counsel concede that, if the defendant relied upon delusional insanity for a defense, the instruction given was proper, but claim that as the delusions of defendant, detailed in evidence, were in no wise connected with the homicidal act or related to the party killed, it was improper and highly prejudicial. They assert that the segregation and emphasis of delusional insanity from other causes detailed in evidence, affecting defendant's mental capacity, required the jury to consider it as a separate and unconnected factor in the solution of the question of criminal responsibility instead of conjointly with other causes, and, in substantial effect, advised the jury that:

'Unless defendant's delusions were connected with and caused the firing of the shot, the defendant must be found guilty.'

We think the instruction invulnerable to the objection urged, and its effect quite different from that claimed. No particular delusion is designated in the instruction, but reference is made to delusions as elements of insanity, and the jury is expressly told therein that:

'All insane delusions may be considered in connection with other evidence tending to show insanity for the purpose of determining the question of insanity.'

The several phases of defense covered by the evidence, we think, are clearly and distinctly submitted to the jury for consideration under particular and appropriate instructions. By instructions Nos. 11 and 12, partial, temporary, and general insanity are defined, and the nature and extent of each, essential to exonerate a party affected therewith from criminal responsibility for his acts, are fully stated. Instructions Nos. 14, 15, 16, and 17 relate to mental incapacity or unsoundness arising from the use of intoxicating drinks, drugs, or narcotics, and assert that insanity arising therefrom, in whole or in part, or however caused, when of the character and to the extent explained in instruction No. 11, constitutes a full defense or excuse for acts committed by one while so afflicted. Moreover, such instructions told the jury that if, from a consideration of all the evidence, they had a reasonable doubt as to whether the defendant at the time of the firing of the alleged fatal shot was incapable of forming in his mind the intent to commit the crime of murder, they could not find him guilty and must acquit him; while instruction No. 18 advised that notwithstanding the jury might believe, from the evidence, beyond a reasonable doubt, that the defendant killed the deceased, they could not find him guilty if, from a consideration of all the evidence, they entertained a reasonable doubt as to whether he was sane at the time of the homicide.

Upon cross-examination of an expert witness for the prosecution defendant's counsel propounded and demanded an answer to a hypothetical question said to embody the facts of the case as claimed by defendant, whereupon the witness stated, in substance, that he could not assume the truth of such facts and did not believe them to be true. It is claimed that the court erred in failing to instruct the jury to disregard such statement of the witness, though he thereafter assumed the truth of the facts embodied in the question, and answered the same fully and in accordance with the theory of defendant. Moreover, it is conceded that no objection was made to the voluntary and nonresponsive statement of the witness to the question propounded, nor did the defendant's counsel move to strike the same or request the court to instruct the jury to disregard it. It is common knowledge with the profession that in almost every trial witnesses...