Martinez v. People, 16438

• Decision Date: 27 August 1951
• Docket Number: No. 16438,16438
• Citation: 124 Colo. 170,235 P.2d 810
• Parties: MARTINEZ v. PEOPLE.
• Court: Colorado Supreme Court

Page 810

235 P.2d 810

124 Colo. 170

MARTINEZ v. PEOPLE.

No. 16438.

Supreme Court of Colorado, en Banc.

Aug. 27, 1951.

Rehearing Denied Sept. 17, 1951.

Isaac Mellman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

MOORE, Justice.

Plaintiff in error, to whom we hereinafter refer as defendant, has sued out a writ of error to have reviewed by this court a judgment and sentence of death pronounced against him on a verdict of first degree murder. It was charged in the information that on the 22nd day of March, 1949, the defendant 'did unlawfully, feloniously, wilfully, deliberately and of his premediated malice aforethought, kill and murder one Remiga Marie Ramirez.' To this information the defendant entered the following pleas:

1. Not guilty.

2. 'Not guilty * * * by reason of insanity at the time, since, and now.'

With reference to the latter plea, counsel for defendant states: 'Since there is no legal plea of not guilty by reason of insanity now, that must be disregarded.' We agree that in legal effect the said plea of defendant was within the authorized statutory plea of 'not guilty by reason of insanity at the time of the alleged commission of the crime and since.' ' 35 C.S.A., chapter 48, § 507, amended S.L. '51, p. 325, § 2. Under this plea the trial court had discretion to try the sanity issue, and substantive offense, at the same time. Wymer v. People, 114 Colo. 43, 160 P.2d 987. The issues were thus tried without objection on behalf of the defendant.

The undisputed evidence clearly established that on the night of March 22, 1949, defendant was one of a party of four who visited a tavern at 1825 Larimer Street in Denver, at which place the murder charged against defendant occurred. Others in the party were Bernie Trujillo, Remiga Marie Ramirez and Frieda Ramirez, who was the mother of Remiga. Circumstances leading up to the killing were, as follows:

Defendant met Remiga Ramirez for the first time on March 21, 1949, and discussed with her the possibility of marriage, or living together. She wanted to think it over, and on the evening of the 22nd, they met with the girl's mother, at which time the subject was discussed, and Remiga and and defendant apparently concluded to assume the relationship of husband and wife, notwithstanding the fact that defendant had a wife and four children living in Walsenburg from whom he had been separated for some time. Remiga, her mother and defendant went out to get something to eat, and while at a restaurant, Bernie Trujillo joined them. They left this restaurant together and went to 1825 Larimer street, where a round or two of beer was ordered. While the party was seated at a booth, the defendant took offense at uncomplimentary remarks made by Trujillo concerning the character of Remiga's mother; he left the place, went a block and one-half to his room, secured a revolver and rejoined the party. Defendant testified that Trujillo again called Remiga's mother bad names, whereupon he tried to get the girl to come with him, to which Trujillo objected, saying that if she went with any other man he would kill her. Defendant further testified that he thought Trujillo moved as if to choke the girl, and so he shot him. The girl thereupon bent over the fallen Trujillo and the defendant's own story concerning the occurrence appears in his testimony as follows:

'So that when Trujillo laid down like that on the booth when I shoot him, this girl--I don't know how, but he laid down like that (illustrating). And then the girl went down with him and lie down with him for a while, you know. And I was just standing at the bar. I didn't know what to think. I don't have nothing to think of, I didn't know where I was. By that time I was so mad I guess I was out of my mind. So then I just looked at the girl while I was standing up at the bar, I looked at them like that, and she got up. She says when she got up, she says, 'What you kill him for? Why did you kill him, you _____'. I said, 'My mother's no bitch,' I said. So I got my pistol and shoot her, tried to shoot her. I was so mad. She laid down with Trujillo. I didn't like that. I got back in the bar and put my gun on the bar, and I didn't say nothing, never moved from there. The bartender was up there, the bartender up at the window, I don't know how far down. I didn't pay no attention to the rest of the people. I know all of them were up there. So pretty soon he came up, she looked at me, and that's when I draw my gun again and shoot again. And then she laid down again, and I came back and put my gun there. I was out of my mind by that time. And then she got up, straightened up like that (illustrating). So I took my gun and went clear across the bar and shoot like that (illustrating). I don't know, I think I shoot her, I don't know.'

'Q. You don't know what? A. I think I shot right through her. I didn't know where I hit her that last shot.'

Trujillo died in the ambulance on the way to the hospital. Remiga was dead when the officer arrived a few minutes following the shooting.

The day following the shooting, the defendant, who at all times referred to Remiga as 'Emma,' signed a confession in the presence of detectives in which he described the shooting as occurring in the following manner:

'When we got in there I buy the beers there for four of us, for Trujillo and me and Emma and her mother, And then he--Trujillo he buys again. And then they start again--the girl's mother start to tell him--to tell Trujillo to go away--so Trujillo start again with the same bad words--saying bad words to Emma's mother and I didn't like it and that's when I lost my temper. I leave then and I went over to my room in the Moose Hotel and I pick up my gun and then I come back to the place where Emma annd her mother was and Trujillo was and the old lady says to me to sit down in the corner of the booth. I sit down there and then Trujillo start pickin on Emma's mother again and Emma pick up a glass there and Trujillo goes to catch her like that (indicates with his right hand as though to grab someone) like he was going to grab for her here (indicates the throat) and I pick up my .38 like that (indicates by thrusting his left hand inside his suit coat pocket and then thrusts his left hand out in a gesture) and then I shoot him right away and then I went over there and threw that gun on the bar over there and I stand there to wait for the cops to come and then Emma start picking bad words on my mother and I say you can't talk that way about my mother and I picked up the gun again (indicates with a grab with his left hand) and I walked a few steps toward them and I shot at her and then I start to walk back to the bar again and I turn around and I see her head come up and I walk over and shoot her again and then I see her head go down like this (indicates by lowering his head in a downward motion) on top of Trujillo. And then I throw my gun on the bar again and I turn around and I see her raise up again and I walk over close and I shoot at her again and I walk over again and I throw my gun on the bar and then the police pick me up.

'Q. Why did you shoot Trujillo? A. I thought he was gonna catch her by the throat--catch Emma by the throat. (Indicates again by grabbing at his own throat).

'Q. Why did you shoot Emma? A. Because she cussed my mother bad words after I shot Trujillo.

'Q. Why did you shoot Emma the second time? A. Because she came up with her head from Trujillo's body like that (indicates by placing his head on desk and then raising his head) and then I didn't know, I thought I didn't shoot her so I shoot her again--I shot her three times, because she raise up her head.

'Q. How many times did you shoot him--Trujillo? A. Once.

'Q. Do you know where you shot Trujillo? A. I don't know exactly but I tried to shoot him in the head--I think I hit him down here (pointing and indicating on himself on left side of neck)--I think I hit him on the left side.

'Q. Where did you shoot Emma--in what part of the body? A. I tried to shoot her right in the heart.

'Q. Did you intend to kill Trujillo when you shot him? A. Yes, that's what I did.

'Q. Did you intend to kill Emma too when you shot her? A. Yes, when she said that bad word about my mother.'

Reversal of the judgment is sought on several grounds. It is contended that the trial court erred in admitting certain photographs in evidence; that error was committed in giving certain instructions and in refusing to give two instructions tendered by the defendant; that error was committed in submitting forms of verdict to the jury; that Dr. Charles A. Rymer was erroneously permitted to testify over defendant's objection; and that the trial court erred in giving an oral instruction after having read written instructions to the jury. We consider these contentions in the order stated.

First: Did the trial court err in the admission of photographs?

Exhibit C was a photograph of the body of Bernie Trujillo taken at the morgue several hours after the shooting. Notwithstanding the fact that his face is smeared over with dried blood, and his clothing disheveled and blood stained, the picture identifies the dead man. Counsel for defendant objected to the admission of the exhibit upon the ground that 'it is obvious that the picture is presented for prejudicial purposes,' that 'it has nothing to do with the killing,' and that defendant was not on trial for the 'killing of Trujillo.' The photograph, Exhibit G, was taken at the time defendant signed the confession and shows him as he affixed his signature to it in the presence of detectives. Exhibit K is a photograph showing the defendant and several policemen in the office of the captain of detectives. The defendant was shown with a paper in his hand and testimony in explanation of the exhibit was to the effect that the picture was taken...