Demato v. People

Decision Date14 November 1910
PartiesDEMATO v. PEOPLE.
CourtColorado Supreme Court

Error to District Court, Pueblo County; C.S. Essex, Judge.

Anthony Demato was convicted of murder, and brings error. Affirmed.

W.J. Kerr, for plaintiff in error. John T Barnett, Atty. Gen., and George H. Thorne, Asst. Atty. Gen for the People.

GABBERT J.

Plaintiff in error, defendant below, was convicted of murder in the first degree, and sentenced to the penitentiary for life. He brings the case here for review on error.

Three of the persons called as jurors answered upon their voir dire to the effect that if they should be retained as jurors and should find the defendant guilty of murder in the first degree, they would under no circumstances impose the death penalty. Based upon these answers, the people interposed challenges, which were sustained. The statute provides that " * * * The jury before which any person indicted for murder shall be tried, shall, if it find such person guilty thereof, designate by its verdict whether it be murder of the first or second degree, and if murder of the first degree the jury shall in its verdict fix the penalty to be suffered by the person so convicted, either at imprisonment for life at hard labor in the penitentiary, or at death, and the court shall thereupon give sentence accordingly. * * * " Section 1624, Rev.St.1908; section 1176, 3 Mills' Ann.St.Rev.Supp.

The juror's oath prescribes his duty. By the obligation thus imposed, he is to well and truly try the issues joined and a true verdict render according to the law and the evidence. The law-making power of the state, namely, the General Assembly, has provided that capital punishment may be inflicted for murder in the first degree, when the jury finding such verdict so determines, or life imprisonment, in the discretion of the jury. In other words, under the law, it is the bounden duty of the jury convicting one of the crime of murder in the first degree to exercise their discretion in fixing the penalty to be imposed. To follow and uphold the law is the duty of courts and juries. Manifestly, one who says he would not exercise the discretion vested in him by law, by declaring under oath that he would not fix the death penalty in a proper case, cannot discharge the duties which his oath prescribes. It would certainly be an anomaly to impose upon a juror the obligation of an oath which he says he will disregard. Clearly, such a person is disqualified to act as a juror in a murder case, for the reason that his attitude on the subject of capital punishment would prevent him from performing his duty in the due administration of the law. He would not carry into effect the whole law, and therefore would not stand indifferent between the state and the accused. State v. Melvin, 11 La.Ann. 535; State v. Stewart, 45 La.Ann. 1164, 14 So. 143; People v. Majors, 65 Cal. 138, 3 P. 597, 52 Am.Rep. 295; Driskall v. State, 7 Ind. 338; Stratton v. People, 5 Colo. 276; Spain v. State, 59 Miss. 19; Rhea v. State, 63 Neb. 461, 88 N.W. 789; People v. Tanner, 2 Cal. 257; Gross v. State, 2 Ind. 329; Greenley v. State, 60 Ind. 141.

Some of these authorities are based upon statutory provisions, to the effect that if the offense of which the accused is being tried is punishable with death, any person entertaining such conscientious opinions as would preclude his finding the defendant guilty was not competent as a juror; but where such a statutory provision exists the decisions are not based upon them alone, but, rather, upon the broad proposition that one who would refuse to obey the law, or be guided by its requirements, is not a competent juror. To give the accused the right to have jurors who will not consent to the penalty of death, when the law provides for such a penalty, is to preclude the punishment the law has fixed and to make the law itself an instrument to defeat its own execution. The law permitting the jurors to fix the punishment at death or life imprisonment was not enacted for the purpose of allowing a juror to satisfy his scruples against inflicting capital punishment, but in order, when a verdict of murder in the first degree is returned, to fix the punishment from the circumstances attending the commission of the crime. Many persons are conscientiously opposed to capital punishment, but as the statute prescribes it may be inflicted in a proper case, the law cannot be nullified by permitting those to serve as jurors who refuse to execute it. If capital punishment is to be abolished, the remedy lies with the legislative branch of the state government.

A number of cases are cited by counsel for defendant which he claims support his contention on the subject of challenge for cause. We think these cases are distinguishable from the one at bar; but if they hold differently from our conclusion on the question under consideration, we decline to follow them.

The decision in State v. Lee, 91 Iowa 499, 60 N.W. 119, an Iowa case, seems to be based, in part, at least, upon the ground that the Criminal Code did not embrace challenges for cause predicated upon the ground that a juror entertained conscientious scruples against the infliction of the death penalty. It will be noticed in that case the juror stated, in effect, that he could not conscientiously agree to a verdict fixing the death penalty, but did not say he would not.

State v. Dooley, 89 Iowa 584, 57 N.W. 414, is another Iowa case, in which it was held that the state may examine a person summoned as a juror in a murder case concerning prejudice against the death penalty for the purpose of peremptory challenge, though the jurors are required to fix the punishment at either death or imprisonment for life upon a verdict of guilty of murder in the first degree, and such prejudice is not a ground of challenge for cause. If the inquiry is material for any purpose, it ought to be competent for all.

In People v. Stewart, 7 Cal. 140, a juror was asked if he entertained such conscientious opinions as would preclude him from finding the defendant guilty when the offense charged was punishable by death, to which he replied that he was opposed to capital punishment on principle. It was held that from this answer it could not be said the juror would refuse to obey the law.

In Atkins v. State, 16 Ark. 568, it was held that a person who was opposed to capital punishment is not disqualified as a juror unless it appeared from his answers that he would not find a person guilty of an offense punishable with death.

The decision in State v. Garrington, 11 S.D. 178, 76 N.W. 326, a South Dakota case, appears to have been based upon the proposition that under the Criminal Code of that state, entertaining conscientious scruples against inflicting the death penalty did not disqualify one from sitting as a juror in a capital case. If the Criminal Code of the state is susceptible of that construction, then, of course, the decision is right. It will be noticed, however, that the jurors interrogated on the subject did not answer that they would not inflict the death penalty.

Independent of some controlling statutory provision on the subject, we cannot see how one called as a juror can be said to be competent when he unqualifiedly answers that he will not obey the law which may be applicable to the case.

As was well said in the Atkins Case, supra: "Whatever may be a man's views of capital punishment, as a question of policy, the jury box is not a proper place for him to consider such policy. There he is obliged by his oath to try the guilt...

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17 cases
  • People v. Davis
    • United States
    • Colorado Supreme Court
    • May 14, 1990
    ...272 (1947); Wharton v. People, 104 Colo. 260, 90 P.2d 615 (1939); Fleagle v. People, 87 Colo. 532, 289 P. 1078 (1930); Demato v. People, 49 Colo. 147, 111 P. 703 (1910). Thus, Colorado's practice of requiring the jury to determine the appropriate sentence in a capital case is longstanding a......
  • People v. Drake
    • United States
    • Colorado Supreme Court
    • January 11, 1988
    ..."If capital punishment is to be abolished, the remedy lies with the legislative branch of the state government." Demato v. People, 49 Colo. 147, 150, 111 P. 703, 704 (1910). Accordingly, I am of the opinion that Colorado's death penalty statute does not violate our state constitutional proh......
  • United States v. Puff
    • United States
    • U.S. Court of Appeals — Second Circuit
    • March 3, 1954
    ...Federal Statutes of 1897 it has been held that scruples against capital punishment are a disqualification. Demato v. People, 1910, 49 Colo. 147, 111 P. 703, 35 L.R.A.,N.S., 621; Gross v. State, 1850, 2 Ind. 329; Price v. State, 1930, 159 Md. 491, 151 A. 408; Borowitz v. State, 1917, 115 Mis......
  • State v. Roby
    • United States
    • Iowa Supreme Court
    • June 21, 1922
    ... ... instruction has no application to the case at bar. State ... v. Dolan, 17 Wash. 499, 50 P. 472, and Demato v ... People, 49 Colo. 147, 111 P. 703, are cited. Considering ... the instruction as a whole, I think it is not susceptible to ... the ... ...
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