Carlson v. People, 13034.

• Citation: 15 P.2d 625,91 Colo. 418
• Decision Date: 03 October 1932
• Docket Number: 13034.
• Parties: CARLSON v. PEOPLE.
• Court: Supreme Court of Colorado

15 P.2d 625

91 Colo. 418

CARLSON v. PEOPLE.

No. 13034.

Supreme Court of Colorado, En Banc.

October 3, 1932

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Oscar A. Carlson was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

BUTLER and HILLIARD, JJ., dissenting.

CAMPBELL BURKE, and ALTER, JJ., dissenting in part.

Max D. Melville, and David Brofman, both of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Wallace S. Porth, Asst. Atty Gen., for the People.

BUTLER J.

Oscar A. Carlson was found guilty of murder of the first degree and was sentenced to death. He claims, and in our opinion his claim is well founded, that the record discloses prejudicial error that entitles him to a reversal of the judgment.

About 5 o'clock in the morning of September 1, 1931, Police Officer William Keating discovered Carlson and one William Piskoty in a garage and placed them under arrest. While conducting them to the police call-box in the neighborhood Keating was shot by Carlson and died of the wound a few hours later. Carlson and Piskoty were apprehended, were charged with murder, were convicted of murder of the first degree, and were sentenced to death. Piskoty was granted a new trial, was convicted again, was sentenced to imprisonment for life, and is serving his sentence.

Counsel for Carlson contend that the court erred in denying Carlson's application for a continuance, and in refusing requests to give certain instructions to the jury.

In our opinion, the refusal to grant a continuance was errer requiring the reversal of the judgment.

To defend this young man, whose life was at stake, the court, on September 8, just eight days after the homicide and thirteen days Before the trial date, appointed David Brofman, a young lawyer who was admitted to the bar less than two years prior thereto. Mr. Melville was not connected with the case in the trial court. On september 12 Carlson pleaded not guilty by reason of insanity and was committed to the psychopathic hospital for observation. He remained there five days, during which time, according to his counsel's uncontradicted affidavit, his counsel was unable to consult with him in preparation for trial. Carlson was released from the hospital on the 16th, the doctor's report being that he was sane. The trial had been set for the 21st, and his counsel, on the 17th, moved for a continuance on the ground that it was necessary to bring witnesses from out of the state to testify for the defense on the issue of insanity, and that Carlson was not prepared for trial and needed a more reasonable opportunity to prepare. The application was denied. At the trial the medical director of the psychopathic hospital, called by the prosecution, testified that in his opinion Carlson was 'legally sone'; that 'at the present time' he 'has' no involvement of the central nervous system from syphilis, 'which he asserted he had had at one time.' Carlson testified that he had been treated for syphilis by a doctor in his home town in Illinois. His counsel asked that the record show that the doctor referred to, if present, would testify that Carlson had syphilis and that he had acted irrationally and violently. Treating this as an offer of proof, the court denied the offer. In their brief, counsel for Carlson say: 'We concede that the motion was imperfect in so far as the showing as to witnesses was concerned, in that it gave no particulars as to names or the specific nature of the testimony to be elicited. We concede also that this 'offer' was ineffective. But it cannot be denied that an adequate motion for continuance could have been drawn in order to protect defendant's rights, and this fact has a direct bearing on the point we wish to make now as to the distinct unfairness of appointing an inexperienced attorney to defend a capital case. * * * Including the time necessary for preparing the motion for continuance, counsel had but four days within which to prepare for trial Now if the court had appointed a seasoned lawyer, with a background of long experience in serious criminal cases, * * *13 days might have been enough, although such an expert no doubt would have insisted upon and possibly would have obtained more time. But the court did not follow this course. * * * Instead, the court appointed one of the persons whose name is signed to this brief--one whose license to practice law is shown by the records of this Court to have been less than two years old; one who made no pretense of being an expert in such matters; and the one, be it said, who insists that this plea be made to the court.' Carlson was 21 years of age. He was a comparative stranger in Denver, having left his home in Illinois less than four months Before his trial.

The Supreme Court of Illinois thus states the duty of the trial court in appointing counsel for an indigent defendant: 'When a court is called upon to appoint counsel for a defendant in a criminal case who is unable to employ counsel for himself, it is the duty of the court to see that counsel is assigned having sufficient ability and experience to fairly represent the defendant, present his defense, and protect him from undue oppression.' People v. Blevins, 251 Ill. 381, 96 N.E. 214, 218, Ann.Cas. 1912C, 451.

It is true that the granting or refusal of an application for a continuance is largely within the discretion of the trial court, and the court's ruling should not be disturbed by an appellate court, unless it appears that the trial court abused its discretion, and that the defendant's substantial rights were prejudiced thereby. It is true, also, that there should be no undue delay in the trial of criminal cases. Such delays are likely to prejudice the rights of the people, and thereby defeat justice. But it is equally true that undue haste may prejudice the rights of the accused, and thereby just as effectually defeat justice. The rights of both deserve and should receive equal consideration. While undue delay should be avoided, the accused should be given a reasonable time to prepare for trial, and what is a reasonable time depends upon the circumstances of the case. In this connection, it is well to bear in mind this wholesome language used by Mr. Justice Goddard in Re Fire & Excise Commissioners, 19 Colo. 482, 504, 36 P. 234, 242: 'Reasonable time must always be allowed for the consideration of the rights of the parties in the administration of justice under a free government. Monarchical and despotic governments can undoubtedly proceed more speedily than a representative government in the enactment, administration, and execution of the laws. Reasonable delay is the price we pay in order to secure the protection and vindication of personal and property rights under a government like ours.'

As the application for a continuance was insufficient, it may be that, technically, the court did not err in denying it. Nevertheless, we should not permit a man's life to be forfeited to the state because of the failure of his comparatively inexperienced appointed counsel to comply in all respects with technical requirements in making an application for a continuance, if we are satisfied, as we are in this case, that the defendant did not have a reasonable time in which to prepare his defense.

For the error of the trial court in denying Carlson's application for a continuance, the judgment is reversed, and the cause is remanded for a new trial.

Mr Justice CAMPBELL, Mr. Justice BURKE, and Mr. Justice ALTER dissent.

There are additional reasons that, in my opinion, require a reversal of the judgment, though five of the justices think otherwise. What follows expresses, not the court's views, but my own, in which, however, Mr. Justice HILLIARD concurs.

1. Eliminating those parts that are not applicable to the case, instruction No. 7, given by the court, is as follows: 'Murder is the unlawful killing of a human being with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned. All murder perpetrated * * * by any kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration or attempt to perpetrate * * * robbery * * * or burglary * * * shall be deemed murder of the first degree.' No instruction on second-degree murder, voluntary manslaughter, or involuntary manslaughter was given. Nor were those degrees or grades of homicide included in the forms of verdict submitted by the court to the jury. Counsel for Carlson tendered requested instructions on murder of the second degree and involuntary manslaughter, but the court refused to give either; to which rulings exceptions were saved.

If there was any evidence whatever tending to establish a degree or grade of homicide less than first-degree murder, it was the duty of the court to give an instruction thereon. Such is the law as declared by this court in Crawford v. People, 12 Colo. 290, 20 P. 769, 770, wherein we said: 'When there is any evidence whatever tending to establish a certain statutory grade of criminal homicide, and the court refuses to charge the jury with reference thereto, error is committed. * * * By statute, the accused in criminal cases is permitted to become a witness, and when once upon the stand all the ordinary rules of evidence apply to him. He is subject to cross-examination, his testimony may be impeached, the circumstances under which he testifies may be considered, and perjury on his part can be as readily disclosed as in the case of other witnesses. The jury are to give his testimony such credit and such weight as in their judgment shall, under all the circumstances, be proper. They may accept...