Leick v. People
| Decision Date | 13 January 1958 |
| Docket Number | No. 18024,18024 |
| Citation | 322 P.2d 674,136 Colo. 535 |
| Parties | Leroy Adolph LEICK, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Charles Ginsberg, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
Leick was charged with murder, to which he entered pleas of not guilty, and not guilty by reason of insanity at the time of the alleged commission of the offense. Upon trial he was convicted of murder in the first degree and sentenced to death. On writ of error to this Court, the judgment was reversed and the cause remanded for a new trial. Leick v. People, 131 Colo. 353, 281 P.2d 806.
Following thedecision in Leick v. People, supra, the statute governing pleas of insanity in criminal cases was materially amended, the amended statute becoming effective eight days after the denial of the petition for rehearing in that case. By reason thereof, Leick was rearraigned for the retrial of the charge. He renewed his pleas formerly made, and the record further shows that he entered a plea of insanity
Following the decision in Leick v. People, crime. Leick was then tried anew, pursuant to the mandate of this Court, on the issues of insanity at the time and not guilty.
The issues of (1) not guilty by reason of insanity at the time of the alleged commission of the crime, and (2) not guilty, were tried in sections before different juries, and in that order. On the first issue the jury returned a verdict finding that Leick 'was, on the 1st day of December, 1953, at the time of the alleged commission of the crime, legally sane.' On the second issue the jury returned a verdict finding Leick 'guilty of first degree murder as charged in the information,' and fixed the penalty at death.
After each verdict Leick filed his motion for a new trial; each motion was heard in due course and denied. Following the denial of the motion for new trial filed in connection with the hearing on the issue of 'not guilty,' the trial court sentenced Leick to death. From the judgment and sentence entered Leick seeks review by writ of error.
As said, trial of these issues was had in two sections, each before a different jury. Accordingly, Leick divides his assignments of error into those charging errors in the proceedings involving the issue of insanity and those involving the issue of not guilty.
In connection with the insanity issue he asserts that the trial court committed prejudicial error in (1) not entering judgment at the conclusion of the trial of that issue, thereby denying him the right of an immediate review; (2) not excusing jurors, on his challenge for cause, who expressed opinions as to Leick's guilt; (3) failing to declare a mistrial when a juror, upon being interrogated as to his qualifications, stated in the presence of other members of the jury panel that Leick was guilty and was so adjudged in a prior trial, notwithstanding which the Supreme Court reversed the case because of some minor technicality; (4) not allowing a lay witness to express his opinion concerning Leick's insanity; and (5) denying Leick's motion for new trial. Error was also assigned to the reception of the verdict which, it is said, was contrary to the law and evidence.
As to that section of the trial having to do with the issue of not guilty, Leick assigns as error (1) the refusal of the trial court to enter judgment on the verdict finding Leick sane before proceeding with the trial on the issue of not guilty; (2) the admission in evidence of Leick's confession when it was made to appear that he had not been advised of his right to counsel nor warned that such statement might be used against him; (3) the admission in evidence of the confession of Leick's confederate on the ground that the evidence disclosed his partial dissent to the confederate's statements; (4) the submission to the jury of the voluntariness of an admission by Leick 'for the reason that said statement to Captain William E. Flor was entirely uncorroborated'; (5) the submission to the jury of a form of verdict authorizing the death penalty, on the ground that the evidence at most was circumstantial; and (6) the denial of a motion to instruct the jury to disregard certain statements of the District Attorney made in the course of final argument, the contention being that such statements had no support in the evidence and were highly prejudicial to Leick.
A proper resolution of some phases of this case requires a consideration of parts of the statute relating to pleas of insanity in force when the present case was tried.
The form and manner of pleading insanity in criminal cases are set forth in C.R.S. '53, 39-8-1 and 39-8-3, Cum.Supp. '55, and in C.R.S. '53, 39-8-6. By 39-8-1 it is provided:
39-8-3 provides for the order of trial of the offense where the insanity plea is joined with other pleas, and reads as follows:
39-8-6 details the pleas which may be presented by a defendant who desires to assert insanity at some stage subsequent to the commission of the alleged offense. The pertinent parts of the section are as follows:
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'(3) In any of these cases the judge of the court in which the criminal charge against such defendant is or has been pending, if he believes the defendant is insane or has a reasonable doubt thereto, of his own motion may impanel a jury to determine by its verdict whether such defendant has thus become and then is insane.
'(4) In any of these cases where it is alleged that the defendant has become thus insane, and such allegation is made in a verified petition filed in the court where the criminal charge is or has been pending, supported by the affidavit of a physician who is a specialist in mental diseases stating as his opinion that the defendant has thus become and is insane, the judge of the court may make such investigation as to the condition of the defendant's mind as in his discretion he deems advisable.
'If after such investigation the judge believes that the defendant has thus become and then is insane, or has a reasonable doubt thereto, with all convenient speed, he must impanel a jury to determine by its verdict whether the defendant has thus become and then is insane.'
Should the trial court have entered a judgment on the verdict returned by the jury on the insanity issue? Leick contends that judgment should have been so entered; that the statute refers to a 'trial on the insanity issue alone'; that a trial contemplates a conclusion in the form of a judgment; and that the failure to enter a judgment denied him the right to an immediate review in the Supreme Court.
As we view it, this argument does not wash without losing content and color. Under the procedural change provided by the statute, permitting a disposition of the insanity issue before the issue of not guilty, the trial is conducted in sections either before the same or a different jury. Together these sections constitute one trial. People v. Eggers, 30 Cal.2d 676, 185 P.2d 1; Schissler v. State, 122 Wis. 365, 99 N.W. 593.
The action is single. Leick was confronted with one charge. To it he directed two defenses, both of which raised the issue of his culpability. Success on the issue of insanity would have exonerated him of guilt; failure to prevail on that issue left the issue of not guilty for determination, and upon the latter issue he suffered an adverse verdict. On the single charge one judgment only could be entered. Hence, the trial court properly refused to enter judgment on the verdict returned on the issue of insanity.
This question of separate trials of the issues before the same or different juries has been raised in other jurisdictions, principally on...
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