O'Loughlin v. People

• Decision Date: 08 February 1932
• Docket Number: 12852.
• Citation: 90 Colo. 368,10 P.2d 543
• Parties: O'LOUGHLIN v. PEOPLE.
• Court: Colorado Supreme Court

10 P.2d 543

90 Colo. 368

O'LOUGHLIN v. PEOPLE.

No. 12852.

Supreme Court of Colorado, En Banc.

February 8, 1932

Rehearing Denied April 18, 1932.

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Pearl O'Loughlin was convicted of murder in the first degree and she brings error.

Affirmed.

BURKE ALTER, and HILLIARD, JJ., dissenting.

John M. Keating, John W. Shireman, and John T Weisz, all of Denver, for plaintiff in error.

Clarence L. Ireland, Atty. Gen., and Edward J. Plunkett, Asst. Atty. Gen., for the People.

Horace N. Hawkins, Kenneth W. Robinson, and Max D. Melville, all of Denver, amici curiae.

MOORE J.

Pearl O'Loughlin was convicted in the Denver district court of murder in the first degree and sentenced to life imprisonment at hard labor in the state penitentiary, to review which this writ is prosecuted.

Her assignments of error will be grouped and considered as follows: (1) Sufficiency of the evidence; (2) the admissibility of the testimony of her husband, Leo O'Loughlin; (3) the opening statement of the district attorney; (4) the admissibility of the testimony of Captain Clark; (5) refusal to permit defendant to make a statement not under oath.

The information charged that: 'On the Fourteenth day of October, A. D. 1930, at the said City and County of Denver, State of Colorado, Pearl O'Loughlin, did unlawfully, feloniously, wilfully, deliberately and of her premeditated malice aforethought, kill and murder one Leona O'Loughlin.'

The prosecution contended that the defendant planned to kill her stepdaughter, Leona, aged 10, Leo, the child's father, and Dennis O'Loughlin, his father, and pursuant thereto placed crushed glass in food consumed by Leona and Leo and in a sugar bowl used by Dennis O'Loughlin; that between the hours of 7 and 10:30 on the night of October 14, 1930, defendant struck Leona on the head with an automobile tire iron and threw her body in Berkeley Lake where it was discovered on October 17th.

The record comprises three volumes, 2,394 folios, and numerous exhibits. The proof of guilt was based entirely upon circumstantial evidence.

Leo O'Loughlin married the defendant in January, 1929. He had a daughter, Leona, aged 10, and she a son, Douglas Millican, aged 8, by a former marriage. For some months prior to the homicide, they resided with their children and Leo's brother, Frank, at 2320 Tremont street. During this time Leo was employed by the city and county of Denver as a detective working a night shift. Their marital relations were marred by three separations and threatened divorce.

In August, 1930, the defendant, her husband, and Leona visited the home of Dennis O'Loughlin, Leo's father at Ft. Collins. Defendant helped prepare dinner. After this visit Dennis found crushed glass in his sugar bowl. Thereafter nothing unusual happened in their home until the night of October 10th. Mrs. Marybelle Shannon, defendant's sister, and one of her sons ate dinner with them. Upon returning from work, Leo was given a drink of Ovaltine prepared by defendant and 'no sooner hit the bed than the room was whirling.' Mrs. Shannon owned a cat and a dog. The cat died on the night of October 10th, and the dog two days later. An examination of the viscera of these animals revealed the presence of 'a very small quantity of glass.' Mrs. Shannon stated that her sister had once Before October 10th, given her scraps from the table to feed to her animals, but denied that on the night of October 10th, any scraps were taken by her or fed to the animals.

Defendant prepared all meals served in her home. The evening meal of October 14th consisted of lamb chops, potatoes, and rice. Leo testified: 'When we sat down it (the dish containing rice) was in front of Pearl. She set it over between Leona and I. I remember after she helped Douglas with lamb chops and potatoes he asked for rice; she told him no, he couldn't have any; that is, she turned him down, wouldn't let him have any. Leo had two helpings of rice and Leona one tablespoon full after Pearl asked her to'; that night Leo returned to work at 6:50 accompanied by Detective Jones. Leona was last seen alive by Leo at that time.

Frank O'Loughlin testified that on the night of the 14th, he came home 'between quarter of seven and half past seven, I went right straight to my room.' 'It was about quarter after eight, or maybe a little after that, that I had got in bed.' 'I heard Leona and Douglas at the bathroom door; my door was closed; I didn't see them, but I heard them; after that I never heard Douglas, or never heard Leona, or I never heard anybody. A little after that, I heard the door close downstairs.' 'I recollect that Leona had a cold, and I used to hear her hack sometimes at night, when she was coughing.' 'It seems, right up to that night, I had heard her cough.' 'I did not hear any coughing that night.'

At about ten-thirty that evening, defendant appeared at the home of Mrs. Ethel Sparr, an intimate friend who lived at 2476 West Argyle place, North Denver. She wore a housedress and shoes, but no stockings. Mrs. Sparr testified: 'When she first got there, did you have any conversation about the time? No, we didn't; but about the time she was--when I asked her where she had been, she said, 'I have been here since eight o'clock.' I said, 'But you haven't been here since eight o'clock.' I said, 'All right.' She said 'I have taken June to a doctor. This is the fourth time that I have taken her.''

June Sorenson testified that she had been a friend of the defendant for about two years; that she had neither seen nor accompanied defendant to a doctor's office on the night of October 14th.

Leo stated that on the night of October 14th, 'Pearl met me at the Hall about a quarter of twelve. She was in my car. She had on shoes and stockings. We arrived home at midnight or a little Before . Frank was home and in bed. Pearl entered Douglas' room but she didn't enter Leona's room.' The next morning Leo went to work about 7 o'clock and returned home at about 10:30 a. m. very ill. Defendant then told him 'about Leona being missing went off without her breakfast.' Leo's condition grew worse, and he was confined to his bed at home until Friday, October 17th, when he was removed to St. Joseph's Hospital, remaining there until the following Tuesday.

The body of deceased was discovered in Berkeley Lake, Denver, on October 17th. An autopsy performed thereon revealed two scalp wounds apparently caused by a blunt instrument and several scalp bruises, and that death was caused by concussion and asphyxiation. The stomach contained food which had been in process of digestion two or three hours indicating that death had occurred within two or three hours after this food had been consumed. An examination of this food content disclosed the presence of 'about a teaspoon and a half of crushed glass.' An enema taken from Leo O'Loughlin 'was examined for glass and glass was found to be positive.' The contents of a cup of sugar taken from the home of Dennis O'Loughlin disclosed that 'the material was a combination of sugar and glass.' Spots on a tire iron taken from the trunk on the rear of the O'Loughlin car which had been driven by defendant on the night of the homicide 'proved to be blood. They were human blood.' There was sand in Leona's clothing when her body was removed from Berkeley Lake. There were particles of similar sand on the tire iron when it was found. Upon examination of the kitchen at 2320 Tremont street, Walter Byron, a detective, testified that he had there found small particles of glass 'on the sink board and on the floor immediately under the sink board.'

The prosecution sought to prove certain statements made by defendant during her incarceration in the city jail. Objection was made thereto by defendant on the ground that all such statements were involuntary and made under duress, physical and mental. The jury was excluded, a lengthy hearing was had, and the court sustained defendant's objection and excluded all such proffered testimony, and instructed the jury that the defendant's objections had been sustained and that 'it is not proper to have that testimony Before the jury, as to any statement that she may have made, or that may be claimed that she made, at the City Hall. The main reason that the court excluded it is because she was kept up unreasonable hours in the night to be quizzed.'

The testimony of Albert Clark, captain of detectives, admission of which is attacked by defendant follows: Clark had a conversation with defendant on November 5th in the county jail. Defendant stated to Clark:

'She could clear herself and that she would show Leo that she could, and he asked her how and she said that that night of the 14th, she had received a telephone call, and after receiving this telephone call, she went down to the corner to the mail box, and got out from under a rock, a telegram, by the mail box, and went back to the house, got her purse, and went down to send this telegram, and when she got down she didn't have change enough to send it, or she didn't know anything about sending telegrams, and she went back to the house and got that bill, I believe is the way she put it--the bill, or a bill--and went back to the telegraph office and had sent this wire, and then when she went back to the telegraph office and sent this wire, she was out with a man, and she said to Leo, 'You don't believe I was out with a man, do you?' And Leo says, 'I do not.' 'Well,' she said, 'I was.' 'Well,' Leo said, 'name him.' She says, 'If I name him,' she says, 'you will go out and get him, and Mr. Wettengel and Clark will go out and get him and charge him with accessory to the crime.' And she said Mr. Keating asked her the same

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