Longinotti v. People

• Citation: 102 P. 165,46 Colo. 173
• Parties: LONGINOTTI v. PEOPLE.
• Decision Date: 03 May 1909
• Court: Supreme Court of Colorado

102 P. 165

46 Colo. 173

LONGINOTTI v. PEOPLE.

Supreme Court of Colorado

May 3, 1909

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

William Longinotti was convicted of murder in the first degree, and brings error. Reversed.

Ralph Talbot, for plaintiff in error.

John T. Barnett, Atty. Gen., Jas. M. Brinson Deputy Atty. Gen., Geo. Stidger, Dist. Atty., Horace G Benson, Deputy Dist. Atty., and John H. Chiles, Deputy Dist. Atty., for the People.

STEELE C.J.

The defendant, having been convicted of murder in the first degree, asks this court to review the judgment and proceedings of the district court of the city and county of Denver, alleging error in many instances, as set forth in the assignments. The jury in rendering the verdict fixed the penalty at death.

We shall confine our discussion to the questions raised by assignment No. 14. We are not prepared to say, however, that upon a careful consideration of the other assignments we should hold them unworthy of consideration; but the casual investigation given of the matters involved, aside from those embraced in assignment No. 14, incline us to now believe that, but for the error of the court in declining to correct the misstatement of the district attorney, we should have affirmed the judgment. We regard the action of the district attorney in making this statement, and the action of the court in declining to correct it, so erroneous and prejudicial to defendant that our duty requires us to reverse the judgment. The court had instructed the jury in the language of the statute as to the degrees of murder, and had included the clause: 'Or perpetrated by any act greatly dangerous to the lives of others and indicating a depraved mind regardless of human life, shall be deemed murder of the first degree.' The deputy district attorney, in his closing remarks, said: "All murder perpetrated by an act greatly dangerous to the lives of others and indicating a depraved mind regardless of human life, shall be deemed murder of the first degree.' And the aiming of the gun and firing it at the deceased was greatly dangerous to the life of the deceased, taking his life, and I say that discharging a gun at another is an act greatly dangerous to the lives of others, and indicates a depraved mind, regardless of human life, and is murder of the first degree. That is the instruction, and that is the law, and the court tells you right here that is the law.' Counsel for defendant, thereupon objected and requested the court to correct the district attorney and to instruct the jury as to the meaning of the statute. This the court refused, stating that, counsel having asked the court to instruct the jury orally, it cannot be entertained by the court. The defendant thereupon excepted. The statement made by the district attorney is certainly not the law. By declining to direct the jury that the district attorney's version of the instruction was incorrect, the court permitted the jury to adopt the district attorney's version of the instruction, and we must therefore determine whether the words in the statute, 'greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life,' apply to a case such as this, where the circumstances of the killing show that the accused intentionally took the life of the deceased, and that in so doing the life of no other person was placed in jeopardy. The statute (Rev. St. 1908, § 1624), in so far as it defines murder in the first degree, is as follows: 'All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any kind of willful, deliberate and premeditated killing; * * *

or which is committed in the perpetration or attempt to perpetrate any arson, rape, robbery, mayhem or burglary;

or perpetrated from a deliberate and premeditated design, unlawfully and maliciously, to effect the death of any human being other than him who is killed;

or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life, shall be deemed murder of the first degree.' The numbers do not appear in the statute.

The deceased and the accused were standing on a street corner. They were quarreling, and were but a few feet apart, when the accused deliberately and intentionally shot and killed the deceased. There was nothing in the act of the accused that can be regarded as 'greatly dangerous to the lives of others.' It was, of course, greatly dangerous to the life of the deceased, but the statute does not include in its definition of murder in the first degree every act that is dangerous to the life of the person killed. Every act that results in the death of a person is greatly dangerous to the life of such person, but the statute intended that there should be an act which shows the accused to have had a depraved mind, regardless of human life, and is intended to include those cases where a person has no deliverate intention to kill any particular individual. In other words, when a person kills another by an act which is greatly dangerous to the lives of others, and which shows a depraved mind regardless of human life, he is guilty of murder in the first degree, not because he has atrociously murdered a particular individual, but because his act has evinced universal malice, a malice against mankind in general. In this case the murder must fall, if murder in the first degree, under the first clause of the section, which defines murder in the first degree as 'murder which shall be perpetrated * * * by any kind of willful, deliberate and premeditated killing.'

The New York statute contains practically the same words as those employed in the fourth clause of our statute. In the case of Darry v. People, reported at page 120 of volume 10 of the New York Reports, the facts were, substantially, that the accused had, after he and his wife had retired to bed, beat her with his fists in the pit of the stomach, that this was repeated on the two following nights, and that on one of these nights he struck her on the head with a chair. A surgeon testified that her death was caused by the blows upon the stomach. The court instructed the jury that, if the injuries were perpetrated by such acts as were imminently dangerous to the life of the deceased, and evincing on the part of the prisoner a depraved mind regardless of human life, although without any premeditated design to effect the death of the deceased, then the...