Jones v. People

• Decision Date: 18 September 1933
• Docket Number: 13299.
• Citation: 26 P.2d 103,93 Colo. 282
• Parties: JONES v. PEOPLE.
• Court: Colorado Supreme Court

26 P.2d 103

93 Colo. 282

JONES v. PEOPLE.

No. 13299.

Supreme Court of Colorado, En Banc.

September 18, 1933

Error to District Court, Mesa County; Straud M. Logan, Judge.

Walter Jones, alias John Morgan, was convicted of first degree murder, and he brings error.

Affirmed.

Quentin D. Bonner, of Grand Junction, for plaintiff in error.

Paul P Prosser, Atty. Gen., and Charles H. Queary, Asst. Atty. Gen for the People.

BUTLER Justice.

Walter Jones and Monrad J. Nelson were charged with murder of the first degree in killing Hartford Johnson. The jury found them both guilty of first degree murder. Jones was sentenced to death; Nelson, to life imprisonment. Jones alone seeks a reversal of the sentence.

The defendant tendered an instruction on second degree murder and requested the court to give it. The court refused the request, and instructed on first degree murder only. In one instruction the court told the jury that they might find the defendant guilty of murder of the first degree, or not guilty. It is said that this was reversible error.

The defendant has not brought the evidence to this court for inspection or review. It does not appear that the notes of the evidence were lost, or otherwise unavailable, as was the case in King v. People, 54 Colo. 122, 129 P. 235. All presumptions are in favor of the regularity of the rulings of the court during the trial, and of the correctness of the verdict and the judgment; one asserting error must show it. In the absence of the evidence, we must assume, what is not denied by counsel for the defendant, that if, under any conceivable state of the evidence, a trial court may lawfully withdraw from the jury the question of second degree murder, the action of the trial court was justified in the present case. Miller v. People, 23 Colo. 95, 46 P. 111. In that case we quoted the following from the opinion in Cochlin v. People, 93 Ill. 410: 'We are unable to say what the evidence against the defendant in error was, for the reason he has not preserved it in the record. But we are justified in assuming that it was conclusive of his guilt, and contained nothing of a palliating character; otherwise his counsel would have taken advantage of it, by preserving it in the bill of exceptions. * * * We must therefore start out with the crime confessed upon the record, without a single circumstance to mitigate its enormity.' The contention of counsel for the defendant is, not that there was any evidence tending to show second degree murder, but that in a murder trial, no matter what the evidence is, and even where there is no evidence whatever tending to show second degree murder, the trial court must instruct on murder of the second degree. If that contention is sound, the judgment should be reversed; otherwise it should be affirmed. No other question is argued by counsel for the defendant or presented by the record. There are authorities that state the law as contended for by counsel--the decisions are in conflict--but such is not the law in this state.

That an instruction should be based upon the evidence, and should not be given unless there is some evidence to support it, has been held repeatedly. Thus, in Smith v. People, 1 Colo. 121, Judge Hallett said: 'Whether there is any evidence at all to prove a fact charged is always a question for the court, but the sufficiency of evidence to prove the facts charged must be determined by the jury. If, in a case of felonious homicide, the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury. To require the jury in such a case to pass upon the question of manslaughter would be as unreasonable and absurd as to instruct them respecting the crime of larceny. * * * We agree, that if the evidence tends to prove a case of manslaughter, or if, upon the evidence, there is any doubt whatever as to the grade of the crime, the question of manslaughter ought to be submitted to the jury; but when all the evidence tends to prove murder, if it proves anything, it cannot be wrong to say to the jury that the only question Before them is, whether the accused is guilty of that crime.' In Reagan v. People, 49 Colo. 316, 112 P. 785, 789, we said: 'Manslaughter was not involved. The defendant was on trial for a murder committed in perpetrating a robbery. Taking human life in such circumstances was murder of the first degree, so that defendant was either guilty of that degree of homicide, or not guilty at all. It is not error to refuse instructions which are not applicable to any facts or testimony in the case.' And see Kelly v. People, 17 Colo. 130, 29 P. 805; Mow v. People, 31 Colo. 351, 72 P. 1069; Carpenter v. People, 31 Colo. 284, 72 P. 1072; Johnson v. People, 33 Colo. 224, 80 P. 133, 108 Am.St.Rep. 85; Wickham v. People, 41 Colo. 345, 93 P. 478; King v. People, supra; Sevilla v. People, 65 Colo. 437, 177 P. 135; Seiwald v. People, 66 Colo. 332, 182 P. 20; Dickens v. People, 67 Colo. 409, 186 P. 277; Taylor v. People, 77 Colo. 350, 237 P. 159; Shank v. People, 79 Colo. 576, 247 P. 559; Edwards v. People, 73 Colo. 377, 215 P. 855; Carlson v. People, 91 Colo. 418, 15 P.2d 625; Sparf and Hansen v. United States, 156 U.S. 51, 15 S.Ct. 273, 39 L.Ed. 343; Davis v. United States, 165 U.S. 373, 17 S.Ct. 360, 41 L.Ed. 750; Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594; State v. Mewhinney, 43 Utah 135, 134 P. 632, L.R.A. 1916D, 590, Ann.Cas. 1916C, 537; State v. Zeller, 77 N. J. Law, 619, 73 A. 498; State v. Young, 67 N. J. Law, 223, 51 A. 939; Essery v. State, 72 Tex. Cr. R. 414, 163 S.W. 17; State v. Grba, 196 Iowa 241, 194 N.W. 250; People v. West, 215 Cal. 87, 8 P.2d 463; People v. Northcott, 209 Cal. 639, 289 P. 634, 70 A.L.R. 806; Colo v. State, 192 Ind. 29, 134 N.E. 867, 870; Mack v. State, 203 Ind. 355, 180 N.E. 279, 83 A.L.R. 1349. See, also, notes, 27 A.L.R. 1097; 21 A.L.R. 603; L.R.A. 1916D, 610; 12 L.R.A. (N. S.) 935.

But it is contended by counsel for the defendant that, assuming that the trial court, where there is no evidence of homicide of a lesser degree than murder, may refuse to instruct on such lesser degree, section 6665 of the Compiled Laws requires the court to instruct on second degree murder in all murder cases, even though there is no evidence upon which to base such an instruction. That section provides: '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.' It also contains this provision: 'If any person indicted for murder shall plead guilty to the indictment, the court shall thereupon impanel a jury as in other cases, to which shall be submitted, as the sole issue in the case, the question whether the killing was murder of the first or second degree. The jury in every such case shall find the degree thereof. * * *'

There are authorities that support counsel's contention, but the reasoning in those cases is not sufficiently persuasive to induce us to depart from the well-established rule prevailing in this jurisdiction.

Section 6665 of the Compiled Laws provides: 'All murder which shall be perpetrated by means of poison or lying in wait, * * * or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary * * * shall be deemed murder of the first degree. * * *' The purpose of that provision is obvious. Where the charge is in the statutory form, as in this case, and there is evidence to support a verdict of murder in either ther the first or the second degree, a verdict that states merely that the jury find the defendant guilty, or guilty as charged, would be void for uncertainty. To avoid such uncertainty, and for that reason alone, the statute requires the jury, in all such cases, to designate the degree of murder of which they find the defendant guilty. It was not the intention to require the court to instruct on second degree murder where there is no evidence upon which to base such an instruction. Trial jurors in criminal cases take a solemn oath to render a true verdict 'according to the law and the evidence.' True, juries in criminal cases have the power to fly in the face of both the law and the evidence, and, disregarding their oath, acquit a defendant proven guilty beyond any reasonable doubt, and in such case the court is powerless to set aside the verdict. But, if a jury should find a defendant guilty of an offense, or of a degree thereof, of which, according to the law and the evidence, he is not guilty, the court not only has the power, but is in duty bound, to set aside the verdict. Clearly, therefore, a court is not required to give an instruction that would suggest to the jury that, in violation of the oath taken by them, they may find a defendant guilty of an offense, or of a degree thereof, of which there is no evidence.

In Cole v. State, supra, the court made this pertinent observation 'A jury might have power to stultify itself...