Massie v. People

• Decision Date: 05 July 1927
• Docket Number: 11705.
• Citation: Massie v. People, 82 Colo. 205, 258 P. 226 (Colo. 1927)
• Parties: MASSIE v. PEOPLE.
• Court: Colorado Supreme Court

258 P. 226

82 Colo. 205

MASSIE v. PEOPLE.

No. 11705.

Supreme Court of Colorado, En Banc.

July 5, 1927

Rehearing Denied July 22, 1927.

Error to District Court, Adams County; Samuel W. Johnson, Judge.

Virgil Massie was convicted of murder, and he brings error.

Affirmed.

Denison and Butler, JJ., dissenting in part.

Carl Cline and Bryan L. Whitehead, both of Denver and F. F. Hunter, of Brighton, for plaintiff in error.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein, Asst Atty. Gen., for the People.

BURKE C.J.

Plaintiff in error, hereinafter referred to as defendant, and one Mrs Rene Divelbess, were jointly charged, by an information filed in the district court of Jefferson county, with the murder of Katie Massie, defendant's wife.Motions of Mrs. Divelbess for a separate trial, and defendant for a change of venue, were sustained.This cause was thereupon transferred to the district court of Adams county and there tried, beginning May 10, 1926.The jury found defendant guilty in the first degree and fixed the penalty at life imprisonment.His motion for a new trial having been overruled, he was sentenced on the verdict.To review that judgment he prosecutes this writ.Defendant's reply brief was filed here May 2, 1927, and the cause was orally argued two weeks later.

The Massies lived at Lakewood in Jefferson county.Defendant(a prohibition enforcement officer) and Mrs. Divelbess had long maintained illicit relations, which continued to the time of their arrest.On Sunday, January 31, 1926, Massie and his wife, accompanied by a friend and his wife, went on a pleasure jaunt and returned to their home about 2 p. m. Whisky was procured; the men drank; all dined at 3 p. m.; and defendant, on pretense of business and over the protest of his wife, left at 4 p. m. Thereupon Mrs. Massie and the others attended a theater in Denver, returned home, dined and drank whisky, and the friends left at 11:30 p. m. Upon his departure that afternoon defendant repaired to the room of his mistress in a Denver hotel, where together they drank whisky, then dined out and parted at 11 p. m. The only oral evidence of pertinent events from that hour until late afternoon the following day comes from the lips of defendant.He says he reached home about midnight, found his wife in bed apparently drunk, took a drink himself, fired the furnace, threw into it an empty whisky bottle, and went to bed with his wife.About 4 p. m. on Monday Mrs. Divelbess, in response to a telephone call, went to the Massie home.There she found defendant apparently very ill, lying in bed beside his dead wife.She called a doctor, and later a nurse was summoned.Sufficient fire was found in the furnace to last for two hours, and on top of it lay an uncorked whisky bottle.The nurse and Mrs. Divelbess cared for defendant until Wednesday.The body of Mrs. Massie was taken to a Denver mortuary, and, later, accompanied by defendant, to her old home at Carthage, Ill., where it was interred February 7.When defendant departed for Carthage he left Mrs. Divelbess in charge of his home, first having made the necessary arrangements, by cash and credit, for her maintenance and support there.He returned in a few days and took up his abode with her.Suspicions of his wife's relatives had been aroused by certain conduct of defendant while he was in Illinois and certain rumors from this state which reached them there, and as a result they employed a detective agency to make investigations.A report of its activity having reached defendant, he hired detectives of his own to watch the others.This soon brought Colorado officers into the investigation and resulted in the disinterment of deceased's body and an autopsy at Carthage early in March.This autopsy disclosed that Mrs. Massie had not died of a cerebral hemorrhage as had been certified by the physician called on February 1.Portions of the viscera of deceased were brought to Denver, and an examination thereof indicated death by arsenical poison.The arrests and this trial followed.

Of the 147 assignments of error those argued by defendant's counsel are presented under eleven subheads.Of these the only questions requiring our consideration may be thus grouped: (1) The sufficiency of the evidence.(2) The admission of Exhibit Q.(3) The alleged erroneous exclusion of the defense of suicide.(4) The refusal of the court to permit a further and independent examination by the defense of the viscera.(5) The alleged prejudicial conduct of counsel for the people.

1.The evidence in this case was circumstantial.There are approximately 2,500 folios of it.No good purpose could be served by abstracting it here, or by adding anything to what has above been outlined, plus what will hereafter necessarily be set forth in dealing with the other questions to which we feel it proper to limit ourselves.It is sufficient to say that each of the justices has examined it with great care, and it has been the subject of numerous conferences.We find death from arsenical poison sufficiently established, and that the only suggestions in the record indicating death from any other cause do not rise to the dignity of evidence.Motive and opportunity are sufficiently established and such incriminating conduct on the part of defendant as justified the jury in fixing responsibility upon him.Our unanimous opinion is that the verdict is supported by the evidence and that the conclusion of the jurors was correct.

2.Mrs. Divelbess testified, in part, substantially as follows: My visit to the Massie home February 1, was made in response to a telephone call received from defendant about 2 p. m., in which he told me he was terribly sick, that his wife was at home, and that I should take a taxi and come out about 4 o'clock.On my arrival at that hour I found the front door locked.Passing around the house I heard groans and knocked at the bedroom window, inquiring if any one was at home.Defendant answered, 'Back door.'I went there, found that door unfastened, and went in.Defendant was in bed beside his wife.In response to my questions he said he knew she was dead but did not knew how long she had been dead and that he did not kill her.He asked why I did not call a doctor, saying he had been unable to do so because of his illness.To my question as to why he did not call a doctor instead of calling me he made no answer.He told me there were no neighbors at home who could be called (which was untrue), and thereafter when I proposed calling a doctor he twice protested.I did call Dr. Martin by telephone.He was slow in coming, and I called him the second time.After his arrival defendant asked me not to tell him that he had phoned me.I asked him why he told me not to come until 4 o'clock.He said because he did not wish to frighten me.Thereafter I talked with him many times about what I should say if I were arrested.He said I was not to say anything about the phone call or about his talking to me through the window when I came out, and he suggested to me that the front door did not open easily.After I was incarcerated I received a note from him reiterating these things.

Defendant testified that after retiring at midnight he was totally unconscious of anything that occurred until late the following evening, his first recollection being of the presence in the house of Mrs. Divelbess, Dr. Martin, and some neighbors.

Defendant and his neighbor, Loftus, were served by a two-party telephone, No. 178.The Loftus letter was W, that of defendant J.When a call comes over such a line the central office knows without inquiry the number, but must get the letter from the caller.The hotel number of Mrs. Divelbess was Main 2113.One Clark, commercial manager of the telephone company, who had charge of the records of calls in and out of the Lakewood exchange, testified for the people and identified Exhibit Q as the 'original two-number toll ticket' on a call placed from Lakewood 178W at 1:55 p. m. February 1, 1926, to Main 2113, Denver, and finished at 1:56 p. m. To this counsel for defendant objected because this ticket was not properly identified by the person who made it.The objection was overruled and exception saved.Thereafter the witness, on cross-examination, identified a similar ticket of the same date showing a call from the Massie residence to the coroner at Golden, and was proceeding in the same way to show a call from the same phone to the coroner of the city and county of Denver and the two calls to Dr. Martin, whereupon the necessity therefor was obviated by admissions of the district attorney, and counsel for defendant said:

'Let the record show then that there was a phone call from Lakewood 178J to Main 4540, Dr. Edward Martin, the witness in this case, and from the same number to Main 4540, from 4:48 to 4:50, to Dr. Martin.'

After some redirect examination of the witness the district attorney offered in evidence Exhibit Q, and no objection was made to the offer.Loftus and his wife testified that no one was at their home at the time of the call shown by Exhibit Q and no such call was made from their phone.The inevitable conclusion is that this was defendant's call to Mrs. Divelbess, and that in making it he gave the operator the Loftus letter instead of his own.The objection of defendant's counsel to Clark's identification of Exhibit Q was trivial, save as preliminary to an objection to its introduction.Their own introduction of similar evidence by cross-examination of Clark, and their attempt to introduce more in the same way, forestalled only by the district attorney's admission, was a waiver of their original objection, which waiver was placed beyond question by their failure to object to the exhibit itself.

3.An...