Downey v. People, No. 16164

Docket NºNo. 16164
Citation121 Colo. 307, 215 P.2d 892
Case DateFebruary 20, 1950
CourtSupreme Court of Colorado

Page 892

215 P.2d 892
121 Colo. 307
DOWNEY

v.
PEOPLE.
No. 16164.
Supreme Court of Colorado, en Banc.
Feb. 20, 1950.

[121 Colo. 308]

Page 893

Long, Hyman & Calkins, Denver, for plaintiff in error.

[121 Colo. 309] John W. Metzger, Atty. Gen., Joseph E. Newman, Deputy Atty. Gen., Raymond B. Danks, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

David Albert Downey, the defendant in the lower court and to whom we hereinafter refer as defendant, or by name, was charged by information filed in the district court of El Paso county on July 28, 1947, with having 'feloniously, wilfully and of his malice aforethought' killed and murdered one Lolly Lila Downey. Defendant entered a plea of not guilty and the cause came on for trial October 7, 1947. The jury returned a verdict of guilty of murder in the first degree and fixed the penalty at 'life imprisonment at hard labor in the State Penitentiary.' Motion for new trial was thereafter filed, argued, and denied, and appropriate judgment was entered by the court. Defendant brings the cause here by writ of error, and relies for reversal upon alleged errors of the lower court in the conduct of the trial as follows:

1st. That the trial court erred in receiving in evidence testimony relating to an alleged confession made by the defendant and in refusing to strike said testimony.

2nd. The court erred in refusing to strike the testimony of Dr. Henry W. Maly as the same related to the injuries to the larynx of the deceased.

3rd. The court erred in overruling defendant's motion for a directed verdict upon the ground that the corpus delicti had not been established.

4th. That the court erred in refusing to give two instructions tendered by the defendant.

The evidence discloses that defendant met deceased in London, England, in 1943 while he was serving in the military forces of the United States. Deceased came to the United States in January, 1946, and in April of that [121 Colo. 310] year she and defendant were married in the State of California. In May of 1946 a $10,000.00 endowment life

Page 894

insurance policy was issued upon the life of the deceased, and in August of that year two additional policies, each in the sum of $5,000.00, were issued upon her life. Defendant was named as beneficiary in all of these policies, which contained double indemnity provisions in case of violent death by accidental means. The defendant carried the same amount of insurance upon his own life and the beneficiary in those policies was the deceased.

It appears that for some months following the marriage defendant and his wife were employed, and that thier joint earnings were $540.00 per month. In May, 1947, defendant and deceased went from California to Iowa, due to the illness of defendant's foster mother, where they remained until shortly prior to the events resulting in the death of Mrs. Downey. Defendant and deceased arrived in Colorado Springs, Colorado, on July 16, 1947, on their return trip to California. On July 17th they visited various points of interest. On July 18th they drove to the top of Pike's Peak, had lunch at Woodland Park, after which they drove up the Rampart Range raod and did some climbing. At about one o'clock in the afternoon they proceeded by car to a still higher point on this road, where they again parked their car. From the point where their car was parked they climbed a hill. The body of Mrs. Downey was later found about one-third of the way up this hill.

Between one and two o'clock in the afternoon of July 18, 1947, a Dr. Wilson was driving on the Rampart Range road when he observed the defendant being assisted into a car by a Mr. Hubbard from Texas. Dr. Wilson stopped his automobile and noticed blood on the left side of defendant's shirt. He testified that defendant stated, 'I am not hurt--that is my wife's blood. * * * She may be dead.' Dr. Wilson and Mr. Hubbard were unable to find Mrs. Downey and returned to defendant's[121 Colo. 311] automobile and he thereupon assisted them in locating the body. According to Dr. Wilson the body was not disarranged. It was placed out very carefully. Mrs. Downey was dead but the body was warm. Defendant complained of injuries received from a fall, police authorities were notified, and defendant was taken to a hospital in Colorado Springs where he remained until Saturday, July 19, when he was lodged in the county jail. Dr. Wilson testified that while at the hospital defendant asked him, 'if her tongue was out' and when the doctor asked the reason for the question defendant stated, 'She seemed to be strangling and I tried to remove her tongue.' The terrain where the body was found was rugged, being a mass of rocks and boulders. It was not, however, a dangerous area as to being precipitous. The body was lying at the foot of a ledge of rock about three feet in height, on the surface of which there was a considerable amount of blood. About thirty-four feet up the hill from the point where the body was found there was some evidence that a scuffle had occurred. An autopsy was performed which disclosed superficial scratches and bruises. There was a two inch wound in the back of the head which penetrated the scalp but did no further damage and was not the cause of death, which, as testified by the experts performing the autopsy, was asphyxia due to strangulation.

I. B. Bruce, chief of police of the city of Colorado Springs, was called in by the sheriff of El Paso county to question the defendant. Bruce testified that he kept an accurate record of the time within which the questioning of defendant continued, and stated that on July 20, defendant was questioned a total of six hours and forty minutes, the time being as follows:

10:20 A.M. to 12:30 P.M.

2:30 P.M. to 4:30 P.M.

5:30 P.M. to 6:00 P.M.

7:00 P.M. to 9:00 P.M.

On July 21, the questioning continued for five and [121 Colo. 312] one-half hours, as follows:

10:30 A.M. to 12:30 noon

2:30 P.M. to 4:30 P.M.

7:30 P.M. to 9:00 P.M.

On July 22, defendant was taken by automobile from Colorado Springs to the scene of the alleged crime by undersheriff Clark to tract the path which he and his

Page 895

wife had followed. The trip consumed the hours between 9:00 A.M. and noon. Defendant was questioned while at the scene. On July 23 defendant was questioned before Chief of Police Bruce for six hours and forty-five minutes, as follows:

11:00 A.M. to 12:30 noon

2:00 P.M. to 3:15 P.M.

4:00 P.M. to 6:00 P.M.

8:00 P.M. to 10:30 P.M.

After 10:30 P.M., the evidence is that officer Clark talked with defendant for 'an hour or so.' A lie detector was used in the afternoon, to the use of which the record does not disclose any objection. On July 24th, in the forenoon, the Reverend Albertson, minister of the First Methodist Church at Colorado Springs, conferred with the defendant privately for about two hours. This conference was arranged at the request of defendant. Defendant was questioned by the officers at 1:00 P.M., who testified that he then stated, 'that he had slept over it and wanted to get it off his chest and try to atone for the wrong he had done. He was an entirely different individual and talked freely.' During the intervals separating the interrogations of defendant he was not disturbed; he was provided with food, and made no complaint of being denied opportunity to rest.

During the questioning of defendant prior to the afternoon of July 24, his statement--generally persisted in by him--concerning the events immediately preceding his wife's death was, as related by officer Bruce, as follows: 'They drove back to Woodland Park at eleven o'clock A.M. where they had lunch and drove to the Rampart Range Road, stopping one place to climb around. They got back in the car and drove to another spot where Mrs. Downey met her death. They parked the car on the right-hand side of the road facing Colorado[121 Colo. 313] Springs, climbed about three hundred yards from the highway up around a large rock and were sitting on this rock--not clear to the top--and were necking up there. In some manner Mrs. Downey fell--he doesn't know how she fell--she was injured, she screamed, he rushed after her. He thinks he picked her up. He got hold of her body. He didn't know she was injured but she was bleeding. He had her in his arms--both fell and after they both fell he is very, very hazy. He injured his back--just don't know what happened. From the time he fell--he remembers he was in the air--he don't remember anything until he was found down on the highway on all fours by a Mr. Hubbard who was driving by--a tourist from Texas. He assisted him to his car and about that time Dr. F. M. Wilson, a tourist from Leavenworth, Kansas, appeared on the scene and he told them both what happened and tried to direct them where they would find his wife. They left the highway but were unable to find her. They came back to the car and assisted Mr. Downey to where his wife was. He pointed her out and they took him back and sent him in an ambulance to Memorial Hospital of this city.'

The alleged confession made by defendant on July 24th, following the visit of Reverend Albertson, was related by officer Bruce, while a witness, as follows: 'They came back to Woodland Park where they had lunch at eleven A.M. After finishing lunch they drove on the Rampart Range Road, stopped and climbed around, got back in the car and looked for a place to climb that would not be too dangerous. They parked their car on the right-hand side of the road at a spot quite high and left the car and went from the car about three hundred yards around and up on these rocks and were sitting on the rock talking about their trip, the distances of the trip, about their apartment in San Francisco, and an argument came up. Downey flatly refused to tell me what the argument was about--he [121 Colo. 314] said he did not want to blacken his wife's character. He said that ever since they had been married there had been a...

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34 practice notes
  • Culombe v. Connecticut, No. 161
    • United States
    • United States Supreme Court
    • June 19, 1961
    ...1955, 46 Cal.2d 3, 291 P.2d 929. Colorado: Cahill v. People, 1943, 111 Colo. 29, 137 P.2d 673, 148 A.L.R. 536; Downey v. People, 1950, 121 Colo. 307, 215 P.2d 892; Leick v. People, 1958, 136 Colo. 535, 322 P.2d 674. Connecticut: State v. Zukauskas, 1945, 132 Conn. 450, 45 A.2d 289; State v.......
  • Jackson v. Denno, No. 62
    • United States
    • United States Supreme Court
    • June 22, 1964
    ...361 U.S. 199, 80 S.Ct. 274 (1960). COLORADO: Read v. People, 122 Colo. 308, 318-319, 221 P.2d 1070, 1076 (1950); Downey v. People, 121 Colo. 307, 317, 215 P.2d 892, 897 (1950); Osborn v. People, 83 Colo. 4, 29-30, 262 P. 892, 901 (1927); Fincher v. People, 26 Colo. 169, 173, 56 P. 902, 904 ......
  • Deeds v. People, No. 85SC336
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1987
    ...of the voluntarity of the confession to the jury under proper instructions. Id. at 18, 449 P.2d at 818 (quoting Downey v. People, 121 Colo. 307, 317, 215 P.2d 892, 897 (1950)); see also Roper v. People, 116 Colo. 493, 179 P.2d 232 (1947); Martz v. People, 114 Colo. 278, 162 P.2d 408 (1945).......
  • People v. LaRosa, No. 11SC664.
    • United States
    • Colorado Supreme Court of Colorado
    • February 11, 2013
    ...ed. 2006). We adhere to the conventional formulation of the corroboration requirement, the corpus delicti rule. See Downey v. People, 121 Colo. 307, 319, 215 P.2d 892, 898 (1950). Federal courts and a growing number of state jurisdictions adhere to a newer formulation of the corroboration r......
  • Request a trial to view additional results
34 cases
  • Culombe v. Connecticut, No. 161
    • United States
    • United States Supreme Court
    • June 19, 1961
    ...1955, 46 Cal.2d 3, 291 P.2d 929. Colorado: Cahill v. People, 1943, 111 Colo. 29, 137 P.2d 673, 148 A.L.R. 536; Downey v. People, 1950, 121 Colo. 307, 215 P.2d 892; Leick v. People, 1958, 136 Colo. 535, 322 P.2d 674. Connecticut: State v. Zukauskas, 1945, 132 Conn. 450, 45 A.2d 289; State v.......
  • Jackson v. Denno, No. 62
    • United States
    • United States Supreme Court
    • June 22, 1964
    ...361 U.S. 199, 80 S.Ct. 274 (1960). COLORADO: Read v. People, 122 Colo. 308, 318-319, 221 P.2d 1070, 1076 (1950); Downey v. People, 121 Colo. 307, 317, 215 P.2d 892, 897 (1950); Osborn v. People, 83 Colo. 4, 29-30, 262 P. 892, 901 (1927); Fincher v. People, 26 Colo. 169, 173, 56 P. 902, 904 ......
  • Deeds v. People, No. 85SC336
    • United States
    • Colorado Supreme Court of Colorado
    • December 21, 1987
    ...of the voluntarity of the confession to the jury under proper instructions. Id. at 18, 449 P.2d at 818 (quoting Downey v. People, 121 Colo. 307, 317, 215 P.2d 892, 897 (1950)); see also Roper v. People, 116 Colo. 493, 179 P.2d 232 (1947); Martz v. People, 114 Colo. 278, 162 P.2d 408 (1945).......
  • People v. LaRosa, No. 11SC664.
    • United States
    • Colorado Supreme Court of Colorado
    • February 11, 2013
    ...ed. 2006). We adhere to the conventional formulation of the corroboration requirement, the corpus delicti rule. See Downey v. People, 121 Colo. 307, 319, 215 P.2d 892, 898 (1950). Federal courts and a growing number of state jurisdictions adhere to a newer formulation of the corroboration r......
  • Request a trial to view additional results

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