Bulger v. People

• Decision Date: 03 April 1916
• Docket Number: 8879.,8496
• Citation: 61 Colo. 187,156 P. 800
• Parties: BULGER v. PEOPLE.
• Court: Colorado Supreme Court

156 P. 800

61 Colo. 187

BULGER v. PEOPLE.

Nos. 8496, 8879.

Supreme Court of Colorado, En Banc

April 3, 1916

Error to District Court, City and County of Denver; W. D. Wright Judge.

James C. Bulger was convicted of murder and sentenced to death, and thereafter an inquisition was had before a jury to determine his sanity, as a result of which he was found to be sane. Defendant thereupon filed certain motions in the proceedings in error to review the original conviction, still pending for the purpose of fixing the time for execution of the sentence, and also brought certiorari to review the insanity inquisition. Motion of the Attorney General to strike the proceedings on the writ of error and demurrer to the petition for certiorari sustained.

Hill and Scott, JJ., dissenting.

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

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

WHITE J.

The plaintiff in error, who will hereinafter be called the defendant, was convicted in the district court within and for the city and county of Denver of the crime of murder in the first degree, and, upon the verdict of the jury, sentenced to be hanged as the law provides. Thereafter, upon proceedings in error in this court, the judgment of the trial court was affirmed, and an order entered that the judgment be executed during the week commencing the 31st day of October, 1915. See Case No. 8496 in this court, entitled Bulger v. People, 151 P. 937. Within such week, and on the afternoon of the day before the expiration of the time so fixed, the defendant, by his attorneys, filed an application in the case in this court for 'a stay of execution' in order that an inquiry, as provided by our Criminal Code (section 1614, R. S. 1908), might be had as to defendant's sanity. The application was verified, and certain affidavits were presented therewith. It was alleged in the application that since the trial, conviction, and sentence' of defendant 'he has become disordered in mind and insane, and now is disordered in mind and insane, and for that reason the sentence of death should not and cannot, under the law, be imposed upon him.' One of the affidavits accompanying the petition was that of a reputable physician practicing in the city and county of Denver, and who had made a special study of mental and nervous diseases. It appeared therefrom that the affiant had examined the defendant since he was sentenced, and found that he 'was at the time of affiant's examination, and now is, an insane person.' It further appeared from the application, affidavits in support thereof, and the statement of counsel that on the preceding day, that is, November 4, 1915, application had been made to the trial court or the judge presiding therein, in which it was alleged that since judgment was pronounced in said cause the defendant had become insane, which was accompanied by the hereinbefore mentioned affidavit of the physician, and a request made that the sanity of defendant be inquired into; that Hon. W. D. Wright, then presiding in the division of the trial court wherein defendant was tried and sentence pronounced, was of the opinion that, as the trial was had and the sentence imposed upon defendant at a former term, and the case brought to this court on error, and the judgment thereafter affirmed, the trial court had no jurisdiction in the premises, and for that reason alone denied the application, stating that, if he thought the trial court had jurisdiction and there was sufficient time for the hearing before the date fixed for execution, he would order the inquisition. Thereupon we entered an order vacating the date we had designated for carrying into effect the judgment of the district court, and fixed a subsequent date for that purpose, and ordered that defendant, with all convenient speed, apply to the district court wherein his trial was had and sentence pronounced to have the question of his sanity determined at the time of impaneling a jury for that purpose in the manner the law provides, and that on completion of the proceedings the result thereof be certified to this court, 'upon which such further order and judgment, if any, shall be entered as the law requires.' Thereafter it was made to appear to this court that the inquisition would not be concluded before the expiration of the date fixed for defendant's execution, and we thereupon, by an order duly entered, fixed a later date therefor, to wit, during the week beginning February 27, 1916. January 11th the result of the inquisition was certified by the clerk of the district court and filed in the cause in this court. The report shows that the jury found the defendant 'to be now sane.'

Defendant, through his counsel, has filed and tendered for filing in Bulger v. People, supra, certain motions, petitions, and portions of the alleged record of the proceedings in the inquiry as to his sanity. He has also instituted an original proceeding in this court No. 8879, the object of which is to have us review the inquisition by means of the writ of certiorari. In the former case we were asked to change the date fixed for the execution of the judgment and fix a later date therefor, which we did, designating for that purpose the week beginning May 21, 1916. The papers presented and filed therein also request that we direct the district court to certify to this court a complete transcript of the inquisition as to the present sanity of defendant, and that thereupon we review such proceedings, reverse the finding of the jury therein, and cause a new inquisition to be held before another jury impaneled for that purpose. It is clear that the matters presented by the application and papers in case No. 8496 and in the petition for certiorari relate to the same alleged right of defendant; that is, to have this court review the inquisition proceedings as to his sanity, annul the verdict of the jury therein, and cause a new inquisition to be held. The matters were argued at the same time, and will therefore be determined in one opinion.

Defendant does not appear to have any well-defined theory of procedure under which his alleged right may be protected, but the most liberal view we may take of his contention in that regard is that we are empowered to review the proceedings here involved: (1) Upon writ of error; (2) on writ of certiorari; (3) by virtue of the order which we entered in case No. 8496 changing the date therein fixed for carrying into execution the judgment of conviction and designating a subsequent date for that purpose, and ordering the defendant to apply to the district court to have the question of his sanity determined and the result thereof certified to this court.

1. If this court were invested with power to review such proceedings upon writ of error, it is doubtful if the record here presented would authorize it to act in the premises, but, apart from this, we are satisfied that the writ of error affords no remedy. The inquisition was authorized by the provisions of section 1614, R. S. 1908. This statute constituted section 12 of 'An act concerning criminal jurisprudence,' passed by the territorial Legislature in 1861 (Laws 1861, p. 291) and has ever remained a part of the Criminal Code of this state. It is in the following language:

'A person that becomes lunatic or insane after the commission of a crime or misdemeanor ought not to be tried for the offense during the continuance of the lunacy or insanity. If, after verdict of guilty and before judgment pronounced, such person becomes lunatic or insane, then no judgment shall be given while such lunacy or insanity shall continue, and if after judgment and before execution of the sentence, such person becomes lunatic or insane, then in case the punishment be capital, the execution thereof shall be stayed until the recovery of such person from the insanity or lunacy. In all these cases it shall be the duty of the court to impanel a jury to try the question whether the accused be at the time of the impaneling insane or lunatic.'

The rule of the common law in this regard is stated in Hammond's Blackstone's Commentaries, book 4, c. 2, pp. 24, 25, and Cooley's Blackstone (4th Ed.) vol. 2, pp. 1230, 1231, as follows:

'In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defense? If, after he be tried and found guilty, he loses his senses before judgment, judgment shall not be pronounced, and if, after judgment, he becomes of nonsane memory, execution shall be stayed; for peradventure, says the humanity of the English law, had the prisoner been of sound memory he might have alleged something in stay of judgment or execution. * * * But, if there be any doubt whether the party by compos or not, this shall be tried by jury.'

The right to a jury trial, however, even in cases of doubt, was not inherent at common law, though in such cases it was usual to impanel a jury and summarily try the collateral issue. Cooley's Blackstone (4th Ed.) vol. 2, p. 1524, and notes. The law on this point is fully stated in 1 Hawkins, P. C. p. 2, in the notes, where it is said:

'Every person of the age of discretion is presumed of sane memory, until

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