Ferrin v. People, 21989

• Decision Date: 06 November 1967
• Docket Number: No. 21989,21989
• Citation: 164 Colo. 130,433 P.2d 108
• Parties: Stephen Wayne FERRIN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 108

433 P.2d 108

164 Colo. 130

Stephen Wayne FERRIN, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21989.

Supreme Court of Colorado, En Banc.

Nov. 6, 1967.

Delaney & Balcomb, Glenwood Springs, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John P. Moore, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

In the district court of Eagle County Stephen Wayne Ferrin, aged fifteen, to whom we will refer as Stephen or defendant, was convicted of first degree murder of his younger brother, David.

The material facts are not in dispute. We recite them only in enough detail so as to make clearer the issue involved in this writ of error.

Stephen was one of seven children residing with his family in the small mountain community of Basalt, Colorado. He was an average student, well behaved and quiet. He was reared in the Mormon faith and attended church and Sunday school regularly. He had a close and affectionate relationship with David, who was two years younger.

On the date of the homicide, Stephen and David were at a neighbor's ranch to visit a playmate, Roger Sharp, aged thirteen. The Ferrin brothers accompanied Roger who had some irrigating to be done. Stephen carried with him a .22 single shot rifle. The irrigation chore took about 45 minutes, and after it was completed the three boys started back to the ranch house area intending to play baseball. Roger and David were in front, and as they passed through a gate on the Sharp property, Stephen ordered them to come back through the gate. The boys did not respond to the 'command' and Stephen fired a shot near David's feet. David responded, 'I told you I am invulnerable just like Superman. * * * There is really nothing you can do to me.' Stephen then fired a second shot which hit David causing him to fall screaming. Defendant then ordered Roger to return through the gate, which Roger did. Then Stephen fired a third shot at David.

Roger was ordered to strip down. Then Stephen marched Roger, sans pants, up the road about an eighth of a mile. Roger remarked to the defendant to the effect 'You are a Mormon boy.' Defendant then threw down his gun and started to cry 'real loud.' Roger recovered his trousers and went to a neighbor's house and called the authorities. Defendant continued to lay on the ground and cry incessantly. He was still crying at the house when the authorities arrived; and was in such an emotional state that he was taken to a doctor.

Roger testified that prior to the shooting there was no quarrel or disagreement between the brothers. He said that after the shooting defendant's face was 'different' and that it 'looked real serious.'

At the arraignment on the information charging that Stephen 'did feloniously, willfully and of his malice aforethought kill and murder' David, pleas of not guilty and not guilty by reason of insanity were entered.

Defendant was examined by four psychiatrists, each of whom made reports as to his mental capacity at the time of the shooting. Stephen was sent to the State Hospital at Pueblo after he was unable to gain admission to the Colorado Psychopathic Hospital in Denver due to lack of space. Dr. Hewitt Ryan, the psychiatrist at the State Hospital, found Stephen to be legally insane and made such a report to the court.

Thereafter the district attorney requested another examination of the defendant, and this time he was sent to the Colorado Psychopathic Hospital. There Dr. John MacDonald, chief psychiatrist, and Dr. James Warren Redman, a psychiatric resident, examined the defendant and reported their conclusion that he was sane.

By private arangements through the members of defendant's church, a fourth psychiatrist Dr. J. P. Hilton, was consulted and arrangements were made to have him examine Stephen. Dr. Hilton concluded that Stephen was criminally insane.

Trial was to a jury with both the issues of guilt and insanity consolidated in the one proceeding. However, it developed that with the homicide admitted the sole issue was whether the defendant was mentally accountable for the killing, and, if so, in what degree. The jury, after deliberating for approximately twenty-four hours, found the defendant sane and guilty of murder in the first degree. They fixed the penalty at imprisonment for life at hard labor.

Under the five main headings in the summary of argument, defendant has--including the subparagraphs--advanced a total of fourteen alleged errors occurring in the trial. With the exception of one, we characterize them as technical, non-prejudicial, and in the category of imperfections likely to occur in any trial of like duration.

The chief assignment of error to which we give our attention was the failure of the trial court to instruct the jury on and to submit to it a verdict on the lesser included offense of voluntary manslaughter. The request for such an instruction by the defendant was denied by the court.

As has been stated, four medical experts examined the defendant. Two of them found that defendant was so diseased in mind that he was criminally insane. It was Dr. Hilton's opinion that the defendant was a paranoid schizophrenic with delusions of being persecuted. Dr. Ryan's conclusion was that the killing resulted from a psychotic episode. The two other doctors--Dr. MacDonald and Dr. Redman--recognized the extreme irrationality of the act, but stated that they did not find evidence of mental disease. Both concluded that the defendant was sane at the time of the killing within the definition in the criminal law: that he did understand right from wrong.

All of the medical experts, however, were in agreement that defendant was incapable of coping with anger or releasing it in a normal manner, and that the shooting was the result of an explosion or pent-up anger and emotion.

The statutes dealing with manslaughter are C.R.S.1963, 40--2--4; 40--2--5, and 40--2--6. After quoting the sections verbatim (they are the same now as then), this court said in Baker v. People, 114 Colo. 50, 160 P.2d 983:

'The statute clearly recognizes the frailty of human nature, and its purpose is to reduce a homicide committed in circumstances set forth therein to the grade of manslaughter, either voluntary or involuntary, depending upon the facts in each particular case. It clearly appears from the statute that the unlawful killing of a human being without malice or deliberation and upon a sudden heat of passion caused by some provocation apparently sufficient to excite an irresistible passion in a reasonable person constitutes manslaughter. * * *

'It should be borne in mind that the distinguishing features between murder and manslaughter are the ingredients of malice and deliberation. While malice may be either express or implied, it must be proved the same as any other fact, and in the absence of proof of malice, the killing of a human being is manslaughter. * * *'

In the Baker case the court then went on to point out that from the evidence the defendant in that case definitely and positively testified that he bore no malice toward his victim, that he was 'angry, jealous and suspicious.' Quoting again from the Baker case:

'* * * Whether there was malice, whether all the circumstances of the killing showed an abandoned and malignant heart, and whether there was sufficient provocation to reduce the crime...