Mills v. People

• Decision Date: 15 May 1961
• Docket Number: No. 19376,19376
• Citation: Mills v. People, 362 P.2d 152, 146 Colo. 457 (Colo. 1961)
• Parties: Ernest Joseph MILLS, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendnat in Error.
• Court: Colorado Supreme Court

Page 152

362 P.2d 152

146 Colo. 457

Ernest Joseph MILLS, Plaintiff in Error, v.PEOPLE of the State of Colorado, Defendnat in Error.

No. 19376.

Supreme Court of Colorado, En Banc.

May 15, 1961.

Rehearing Denied June 12, 1961.

Joseph A. Myers, V. G. Seavy, Jr., Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., J. F. Brauer, Asst. Atty. Gen., for defendant in error.

SUTTON, Justice.

Defendant was charged by information with the premeditated murder of his wife, Mary Constance Mills, also known as Mary Martinez Mills, on May 14, 1957.He was convicted of the crime of second degree murder and sentenced to from thirty-eight years to life in the state penitentiary.He seeks review by writ of error.

This matter is before this court for the second time.On a previous writ of error a conviction of first degree murder was reversed.Mills v. People(1959)139 Colo. 397, 339 P.2d 998.

It is unnecessary to set forth the sordid details of the crime of which defendant was convicted.Suffice it to say that the evidence offered by the people was circumstantial and for that reason the jury was not permitted to consider the death penalty.The defendant did not testify in his own behalf.

Sixteen separate assignments of error are urged for reversal.

Defendant first contends that the trial court committed prejudicial error in instructing the jury on the crime of first degree murder.The Colorado statutory definition of murder is contained in C.R.S. '53, 40-2-3:

'Malice shall be implied when no considerable provocation appears, or when all circumstances of the killing show an abandoned and malignant heart.All murder which shall be perpetrated by means of poison or lying in wait, torture, or any kind of wilful, 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, and all other kinds of murder shall be deemed murder of the second degree.The jury before which any person indicted for murder shall be tried, shall, if it find such person guilty thereof, designate by its verdict whether it be murder of the first or second degree, and if murder of the first degree, the jury shall in its verdict fix the penalty to be suffered by the person so convicted, either at imprisonment for life at hard labor in the penitentiary, or at death; and the court shall thereupon give sentence accordingly.

'* * * provided, that * * *; nor shall any person suffer the death penalty who shall have been convicted on circumstantial evidence alone.'

In the present case testimony indicated that the cause of death was an incisional wound of the neck (caused by a sharp cutting instrument) and exsanguination.The evidence against defendant included several exhibits including a knife and a pair of bloody scissors found in the apartment.This record indicates that considering the circumstances of the crime a verdict of murder in the first degree would have been supported by the evidence.

The fact that the state's evidence was entirely circumstantial does not preclude an instruction on first degree murder where the necessary elements of that crime are present in the record.'Intent to kill and premeditation may be inferred from the intentional use of a deadly weapon in a deadly manner.'1 Wharton's Criminal Evidence, § 131, p. 245.

The statute on murder, quoted in part above, expressly sanctions this presumption in view of its provision that no person convicted of first degree murder on the basis of circumstantial evidence alone shall suffer the death penalty.In the present case the trial judge correctly informed the jury that if it found the defendant guilty of first degree murder it must fix the penalty at life imprisonment since the evidence was wholly circumstantial.

Under the circumstances it cannot be said that the giving of a first degree instruction constitutes reversible error.In Walker v. People(1952)126 Colo. 135, 156, 248 P.2d 287, 299, we said:

'Furthermore, the entire matter relating to circumstantial evidence, and its effect in preventing the jury from fixing a death penalty, relates to first degree murder, and cannot in any respect be relevant to a verdict of guilty of the second degree.If, then, it be conceded solely for the purpose of argument that the instructions were erroneous, nevertheless, the defendant having been convicted of second degree murder was not entitled to complain.'

In accord: 26 American Jurisprudence, § 557, p. 546;State v. Carabajal(1920)26 N.M. 384, 193 P. 406, 17 A.L.R. 1098;Armijo v. People(1956)134 Colo. 344, 304 P.2d 633.In order to avoid any misunderstanding, we feel it necessary to point out that generally it is improper to instruct on a degree of homicide not sustained by the evidence.Tate v. People(1952)125 Colo. 527, 247 P.2d 665.In the present case there was adequate evidence to warrant the instructions given.

Defendant further contends that the trial court committed prejudicial error in admitting photographs taken of the deceased, when found, together with bloody articles of clothing belonging to her and bloody towels and similar items found with the body.It has heretofore been held that such is not necessarily error.In King v. People(1930)87 Colo. 11, 285 P. 157(cited with approval inMartinez v. People(1951)124 Colo. 170, 177, 235 P.2d 810, 814) it was said:

'Any evidence, oral or visual, disclosing the facts and circumstances surrounding the commission of a crime is admissible.The fact that such evidence shows that the offense was particularly atrocious and might arouse the righteous indignation of the jurors does not render the same inadmissible.'

The evidence in dispute here comes within the permissible limits stated in Kingsupra.

Defendant also argues that the trial court...