McKee v. People

• Decision Date: 03 July 1922
• Docket Number: 10188.
• Citation: 209 P. 632,72 Colo. 55
• Parties: McKEE v. PEOPLE.
• Court: Colorado Supreme Court

209 P. 632

72 Colo. 55

McKEE v. PEOPLE.

No. 10188.

Supreme Court of Colorado

July 3, 1922

Rehearing Denied Oct. 2, 1922.

Error to District Court, Washington County; L. C. Stephenson Judge.

Artie S. McKee was convicted of murder in the first degree, and he brings error.

Affirmed.

Teller J., dissenting.

Edwin H. Park, of Denver, Relihan & Reed, of Smith Center, Kan., and Chalkley A. Wilson, of Akron, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Samuel Chutkow and Chas. H Sherrick, Asst. Attys. Gen. (Isaac Pelton, of Akron, of counsel), for the People.

WHITFORD J.

Plaintiff in error was tried for the murder of his wife, and was convicted of murder in the first degree, and sentenced for life. This is the third trial of the case. On a former trial the case was brought here and reversed. McKee v. People, 69 Colo. 580, 195 P. 649.

Plaintiff in error contends that the corpus delicti was not proved and that his motion for a directed verdict should have been sustained. It is elementary that the corpus delicti in all cases of homicide must be proven beyond a reasonable doubt, either by direct or circumstantial evidence. The evidence in this case was circumstantial, and in some respects conflicting, and we deem it unnecessary, as serving no useful purpose, to recite the evidence for the purpose of exhibiting the facts upon which the jury predicated its verdict. It is sufficient to say that, after a careful reading to the entire record, we are confident in holding that the evidence is sufficient to justify the verdict, and that the corpus delicti was sufficiently proven as required by the decisions of this court. Ausmus v. People, 47 Colo. 167, 107 P. 204, 19 Ann.Cas. 491; Byram v. People, 49 Colo. 533, 113 P. 528; McBridge v. People, 5 Colo.App. 91, 37 P. 953.

It is also contended that the court erred in permitting the district attorney to interrogate the defendant, when on the last trial the defendant exercised his statutory privilege and took the witness stand in his own behalf, with reference to his failure to testify on the former trials, and also permitting the prosecuting officer to comment in his closing argument to the jury upon that fact. The defendant was asked: 'Mr. McKee, this is the first time you have testified in this case, isn't it?' And the defendant answered: 'It is.' In his argument to the jury the district attorney said: 'This is the first time in the history of these three trials that Artie McKee ever took the stand.'

We cannot hold that the question was improper, or that the statement of the district attorney commenting on the fact constituted error. When the defendant exercised his right under the statute to take the witness stand and give testimony in his own behalf, he elected to place himself in the same situation as any other witness. 'Having elected to do this, under our statute (Revised Statutes 1908, § 1984), he occupied precisely the same position as any other witness. He could be cross-examined; contradictory evidence could be offered in rebuttal, and he could be impeached; or his credibility could be attacked in any of the methods recognized by the rules of evidence as applicable to the testimony of ordinary witnesses.' McKeone v. People, 6 Colo. 346-347. The defendant was not prejudiced, either by the question or by the comment of the district attorney.

It is urged that error was committed in refusing defendant's instruction No. 2, defining reasonable doubt. The instruction tendered does not follow the form heretofore approved by this court. The instruction given by the court on reasonable doubt followed the approved form in Minich v. People, 8 Colo. 440-454, 9 P. 4, and since that pronouncement this court has repeatedly expressed its disapproval of the efforts of attorneys and trial courts to change, modify, or enlarge it. We said in McQueary v. People, 48 Colo. 214, 225, 110 P. 210, 215 (21 Ann.Cas. 560):

'We have had occasion several times to call the attention of district attorneys and trial judges to the advisability of following an approved instruction on the subject of reasonable doubt, as approved in Minich v. People, 8 Colo. 454, for the reason that this is the safe practice, and obviates the necessity of a consideration of instructions on the subject differently worded. Boykin v. People, 22 Colo. 496; Van Wyk v. People, 45 Colo. 1. We deem it proper here to repeat what was said by Chief Justice Steele, in the Van Wyk Case, in referring to the instruction on reasonable doubt in the Minich Case: 'The instruction there approved appears to us now to be sufficiently comprehensive, and we suggest that efforts at its modification or enlargement only consume the time of court and counsel, and we again recommend its use without change.''

We have carefully considered the entire record, the assignments of error, and the written arguments of counsel, and are fully persuaded that the facts and circumstances disclosed by the record are amply sufficient to sustain the verdict. A full review of the whole record satisfies our minds that the plaintiff in error has had a fair trial under the law, and has not been prejudiced in any substantial right, and that the judgment of conviction ought to be affirmed.

Judgment affirmed.

SCOTT, C.J., and CAMPBELL, J., not participating.

TELLER, J. (dissenting).

Where a trial involves liberty or life, and the evidence of the offense charged is wholly circumstantial, it is necessary, I conceive, that the rules of procedure which have been established, as the result of long experience, to prevent a miscarriage of justice, should be carefully observed. Because there were, in this case, serious infractions of those rules which I should appear to approve by concurring in the majority opinion, I am impelled to dissent, and to state the grounds therefor. Much more than the question of the guilt of the plaintiff in error is involved in this case.

Objection was made to this question put to the defendant, 'This is the first time you have testified in this case, isn't it?' and to this comment by the district attorney in his address to the jury, 'This is the first time in the history of these three trials that Artie McKee ever took the stand.' The objection is based upon the statute which provides that:

'In no case shall neglect or refusal of the accused to testify be taken or considered as evidence of his guilt or innocence.'

It is elementary that evidence is admissible only when it has some bearing upon the question in issue. The admission of this evidence, and the comment upon it, assume that it was relevant to the issue. If not so, it should have been excluded on objection made. The objection is not answered by the statement, in the majority opinion, that when the accused takes the stand he is to be treated as any other witness would be treated. No witness should be required to answer irrelevant questions. The accused's failure to testify on former trials was thus placed before the jury as a matter to be considered on the subject of his guilt, in direct violation of the law which prohibits such consideration.

In Petite v. People, 8 Colo. 518, 9 P. 622, this court in discussing this statute, recognized the difficulty of preventing the jury from drawing prejudicial inferences from the silence of the accused, though court and counsel be silent on the subject, and declared that too much care cannot be exercised by courts in giving effect to the statute, which was said to be intended to aid the accused in making his defense. In the instant case court and counsel aided in bringing the matter before the jury. Such an obvious flouting of the views expressed by this court should not be tolerated, much less approved.

In Brown v. State, 57 Tex. Cr. R. 269, 122 S.W. 565, it was held that on a plea of not guilty it is never competent, at any time or place, to make proof that the defendant did not testify on a former trial, and that the admission of evidence to that effect was reversible error. Tennessee has a statute which prohibits the failure of the accused to testify creating a presumption against him. In Smithson v. State, 127 Tenn. 357, 155 S.W. 133, the court said:

'The policy of the statute is to protect a defendant against argument based on such failure, * * * whether that failure, occur in the immediate trial or in a former trial. To hold otherwise would be to put on a defendant the hazard of foreseeing in the earlier trial the effect in a subsequent trial of such failure; whereas the policy of the statute is to protect him in the trial in which he is first put to his election, as well as in a later trial.'

The question could have had but one purpose and one effect; that is, to suggest to the jury that the fact that the defendant had not testified theretofore was because, being guilty, he was afraid to offer himself as a witness, or that the fact that he had not testified was material in this case, wherein it could be material only as bearing upon the question of his guilt. That the district attorney was convinced of defendant's guilt is no excuse for such a breach of his duty as the state's representative on the trial.

This court has frequently called attention to the duty of prosecutors to deal fairly with an accused, to present no evidence not deemed competent, and to exclude no evidence which is competent. See Bailey v. People, 54 Colo. 337, 130 P. 832, 45 L.R.A. (N. S.) 145, Ann.Cas. 1914C, 1142; Ritchey v. People, 23 Colo. 314, 47 P. 272, 384; Hillen v. People, 59 Colo. 280, 149 P. 250; Tarling v. People, 69 Colo. 477, 194 P. 939; Miller v. People, 70 Colo. 313, 201 P. 41.

The majority opinion makes no mention of an assigned error on...