Garvey v. People

Citation6 Colo. 559
Case DateApril 01, 1883
CourtSupreme Court of Colorado

6 Colo. 559

GARVEY
v.
THE PEOPLE OF THE STATE OF COLORADO.

Supreme Court of Colorado

April, 1883


Error to District Court of Arapahoe County.

THE facts are stated in the opinion.

Messrs. WELLS, SMITH and MACON, for plaintiff in error.

THE ATTORNEY GENERAL, for defendants in error.

BECK, C. J.

At the March term, 1881, of the Weld county district court the plaintiff in error was indicted for the murder of one George Wolf. The crime was charged to have been committed in said county on the 23d day of May, 1880. The prisoner pleaded not guilty to the indictment. A charge of venue was applied for, and the venue changed to Arapahoe county, where the cause was tried at the special November term of the district court of said county, resulting in a verdict of 'guilty of murder as charged in the indictment.' Upon this verdict the prisoner was sentenced to imprisonment at hard labor in the state penitentiary for the residue of his natural life.

It is assigned for error that the court erred:

First. In denying motion for continuance. [6 Colo. 560]

Second. In denying motion in arrest of judgment.

Third. In giving judgment on the indictment, no offense being charged therein, and there being no law to warrant judgment upon the said indictment.

Only the second and third assignments are relied upon for a reversal, and no objection is pointed out to the form of the indictment.

Two principal propositions are laid down and discussed by counsel for the prisoner, viz.:

First. That after the commission of the alleged offense and before trial, the law applicable to such cases was so amended as to change the rule of evidence and increase the punishment.

Second. That the law under which the offense was committed was repealed before trial, without a saving clause, and there was no law in existence when the trial was had against which the defendant had offended.

As the law stood prior to 1870, there was in Colorado but one grade of murder, and but one mode of punishing the offense, which was death by hanging. Secs. 20 and 183, ch. 23, R. S. 1868.

Section 20 provided that 'the punishment of any person or persons convicted of the crime of murder shall be death.'

In 1870 the legislature amended section 20 as follows:

's 1. That section 20 of said chapter 22 of the Revised Statutes of Colorado territory shall be hereafter construed so that the death penalty for the crime of murder shall not be ordered to be inflicted by the courts of the territory, unless the jury trying the case shall, in their verdict of guilty, also indicate that the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony.

's 2. Any person hereafter found guilty of the crime of murder by the verdict of a jury, without any indication in such verdict whether the killing was deliberate or premediated, or was done in the perpetration or attempt to [6 Colo. 561] perpetrate some felony, shall be sentenced to confinement in the penitentiary for and during such person's natural life; which confinement may be with or without hard labor, or both, at the discretion of the court.' Laws 1870, pp. 70, 71.

The above sections 1 and 2 of the act of 1870 were inserted in chapter 24 of the compilation of the statutes in 1877 as sections 268 and 269 of the Criminal Code (General Laws 1877, pp. 339, 340), and are referred to by the last-mentioned numbers in the legislation of 1881.

The law remained as thus amended until the passage of the act of March 1, 1881, when sections 268 and 169 were repealed, and two other sections enacted to stand in lieu thereof, numbered respectively section 3 and section 4 of said act, as follows:

's 3. Section 268 of said chapter is hereby repealed, and the following shall stand in lieu thereof as section 268:

'The death penalty for the crime of murder shall not be ordered to be inflicted by the courts of this state in any case, unless the jury trying the case shall, in their verdict of guilty, also indicate the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony, or unless the jury, in case where the defendant pleads guilty, and the jury to whom the question of deliberation or premeditation, or that the killing was done in the perpetration or attempt to perpetrate some felony, shall be submitted as hereinafter provided, shall, in their verdict upon that question, indicate that the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony.

'In case where the party indicted for the crime of murder shall plead guilty thereto, and persist therein, the court thereupon shall impanel a jury, as in other cases, to whom shall be submitted and who shall hear and determine the question and vindicate [indicate] in their verdict whether or not the killing was deliberate or premeditated, [6 Colo. 562] or was done in the perpetration or attempt to perpetrate some felony, and in such case that question and none other shall be submitted to the jury.

's 4. Section 269 of said chapter is hereby repealed, and the following shall stand in lieu thereof as section 269:

'Any person hereafter found guilty of the crime of murder by his plea of guilty, in case such plea is received, or by the verdict of a jury, where a trial is had without any confession in such plea, or indication in such verdict, whether the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony, shall be sentenced to confinement in the penitentiary for and during such person's natural life, which confinement may be with or without hard labor, in the discretion of the court.' Laws 1881, pp. 70, 71.

In support of the proposition that the legislation of 1881 had the effect to change the rule of evidence and to increase the punishment, the prisoner's counsel make the point that as the law stood at the time the offense was committed, a prisoner had the right to plead guilty, and by so doing escape all hazard of a death sentence. This plea, they say, was conclusive of the prisoner's innocence of murder in the first degree, and conclusive of his guilt in the second degree; that the court was bound to accept the plea, and to render judgment thereon for the lower grade of murder, without an examination of facts for the purpose of ascertaining the degree of guilt, and that such was the practice adopted by the district courts.

Many authorities are cited in support of the propositions that a plea of guilty to an indictment for homicide only confesses the guilt of the accused as to the lowest grade of the offense; that it authorizes the same judgment as does a general verdict of guilty returned by a jury, which is held to be responsive to the lowest degree of the crime charged in the indictment.

These propositions are fully supported by the authorities cited as to cases wherein the indictment is in the [6 Colo. 563] common law form. 2 Bish. Crim. Prac. s 566, note 4, and cases cited.

There is a strong reason why no greater effect should be given the ordinary plea of guilty, under the statutes of the state as they existed prior to the amendment of 1881, than that accorded to a general verdict of guilty. The reason is that the statutes require the grade of the offense to be ascertained by the verdict of a jury before the death penalty could be ordered to be inflicted.

To authorize a sentence of death, the jury were required to find and indicate in their verdict that the killing was deliberate or premeditated, or was done in the perpetration or attempt to perpetrate some felony. But no provision was made for submitting to a jury the question of the grade of...

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14 practice notes
  • People v. Lowell, No. 148.
    • United States
    • Supreme Court of Michigan
    • 7 Abril 1930
    ...Tenn. 306, 278 S. W. 59;State v. McClellan (1923) 155 La. 37, 98 So. 748, 31 A. L. R. 527;Gorman v. Hammond, 28 Ga. 85;Garvey v. People, 6 Colo. 559,45 Am. Rep. 531; Carter v. Hawley, Wright (Ohio) 74; State v. Campbell, 44 Wis. 529;United States v. One Bay State Roadster (D. C.) 2 F.(2d) 6......
  • Kolkman v. People, 12651.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Mayo 1931
    ...of the State of Colorado, art. 2, § 11. In our jurisdiction the question of ex post facto laws is discussed at length in Garvey v. People, 6 Colo. 559, 45 Am.Rep. 531, in which case support and authority is found in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, and from which ......
  • People v. District Court, No. 91SA329
    • United States
    • Colorado Supreme Court of Colorado
    • 29 Junio 1992
    ...facto laws, we have analyzed the challenged statute under the criteria set forth by the United States Supreme Court. See Garvey v. People, 6 Colo. 559, 565-66 (1883) (statute found ex post facto under both state and federal constitutions in accordance with precedent of United States Supreme......
  • Hollibaugh and Bunten v. Hehn
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Marzo 1905
    ...denied. Allen G. Fisher, for plaintiffs, cited Wartner v. State, 102 Ind. 51; Ex parte Carr, 22 Neb. 540; State v. Stephens, 71 Mo. 535; 6 Colo. 559; 7 id., 384; id., 502. POTTER, JUSTICE. BEARD, J., concurs. OPINION [79 P. 1045] [13 Wyo. 272] POTTER, JUSTICE. Charles E. Hollibaugh and Eric......
  • Request a trial to view additional results
14 cases
  • People v. Lowell, No. 148.
    • United States
    • Supreme Court of Michigan
    • 7 Abril 1930
    ...Tenn. 306, 278 S. W. 59;State v. McClellan (1923) 155 La. 37, 98 So. 748, 31 A. L. R. 527;Gorman v. Hammond, 28 Ga. 85;Garvey v. People, 6 Colo. 559,45 Am. Rep. 531; Carter v. Hawley, Wright (Ohio) 74; State v. Campbell, 44 Wis. 529;United States v. One Bay State Roadster (D. C.) 2 F.(2d) 6......
  • Kolkman v. People, 12651.
    • United States
    • Colorado Supreme Court of Colorado
    • 11 Mayo 1931
    ...of the State of Colorado, art. 2, § 11. In our jurisdiction the question of ex post facto laws is discussed at length in Garvey v. People, 6 Colo. 559, 45 Am.Rep. 531, in which case support and authority is found in Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506, and from which ......
  • People v. District Court, No. 91SA329
    • United States
    • Colorado Supreme Court of Colorado
    • 29 Junio 1992
    ...facto laws, we have analyzed the challenged statute under the criteria set forth by the United States Supreme Court. See Garvey v. People, 6 Colo. 559, 565-66 (1883) (statute found ex post facto under both state and federal constitutions in accordance with precedent of United States Supreme......
  • Hollibaugh and Bunten v. Hehn
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Marzo 1905
    ...denied. Allen G. Fisher, for plaintiffs, cited Wartner v. State, 102 Ind. 51; Ex parte Carr, 22 Neb. 540; State v. Stephens, 71 Mo. 535; 6 Colo. 559; 7 id., 384; id., 502. POTTER, JUSTICE. BEARD, J., concurs. OPINION [79 P. 1045] [13 Wyo. 272] POTTER, JUSTICE. Charles E. Hollibaugh and Eric......
  • Request a trial to view additional results

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