Mitsunaga v. People

• Decision Date: 06 January 1913
• Citation: 54 Colo. 102,129 P. 241
• Parties: GANKYO MITSUNAGA v. PEOPLE.
• Court: Colorado Supreme Court

129 P. 241

54 Colo. 102

GANKYO MITSUNAGA v. PEOPLE.

Supreme Court of Colorado

January 6, 1913

Error to District Court, City and County of Denver; Hubert L Shattuck, Judge.

Gankyo Mitsunaga was convicted of murder, and he brings error. Affirmed.

O. N. Hilton and B. B. Laska, both of Denver (Caesar A. Roberts, of Denver, of counsel), for plaintiff in error.

Benjamin Griffith, Atty. Gen., and Philip W. Mothersill, Asst. Atty Gen., for the State.

GARRIGUES, J.

1. Friday, May 6, 1910, Catharine Wilson moved into No. 1054 Clayton street, Denver. The family consisted of herself and husband; but she was alone at the time, he being at Hot Springs, Ark. That night she stayed with her daughter, Mrs Galland, and Saturday returned to the house, where she employed the defendant to clean the windows and bathtub, in the afternoon. Saturday afternoon, she met Hazel Miller, whom she invited to stay with her that night, and as far as disclosed by any of the evidence--other than the account given by the defendant--this is the last that was seen or heard of her, until her body was found Monday afternoon. Miss Miller, on arriving at the house Saturday evening to keep her engagement, found the house locked. She went in by raising a back window; but found no one there, and, after waiting for Mrs. Wilson an hour or more, left about 8:30. Sunday, May 8th, Mr. Wilson, who was on his way to Denver from Hot Springs, telegraphed his wife, in care of Mrs. Galland, that he would arrive in Denver about 12:15 Monday noon. Late in the afternoon, Mr. Galland took this message to 1054 Clayton street, and finding the house locked, and no one at home left it sticking in the door. Miss Miller told Mrs. Galland of her experience at the Wilson house Saturday night, and Mrs. Galland, still unable to learn of the whereabouts of her mother, met Mr. Wilson at the station, and told him she was missing. They went to the house that afternoon, finding it still locked, and, upon searching the premises, found the body in the cellar, crowded into a box, covered with excelsior, straw, and another box. A strip of muslin cloth was drawn tightly about the throat, indicating strangulation. There were bruises and cuts on the head and chest, and blood stains in the kitchen, and on the stairs leading to the cellar; and attempt having been made to obliterate these by wiping them up with rags, left in the sink. Her 'rat' had been crowded into her throat, and a three-pound Indian club, stained with blood, was found behind the retaining wall in the cellar.

Deceased was a large, robust woman weighing about 160 pounds. The defendant was a small Japanese, about 120 pounds in weight, but physically strong and active, except that his left arm had been injured 10 years before. He worked for a Broadway cleaning establishment, operated by a Japanese, who took orders, and filled them by sending others to do the work, collecting a percentage on what they received, as commission.

On this Saturday morning, defendant was sent to clean carpets on York street, and, while there, was directed by phone from the establishment to go to 1054 Clayton, to work in the afternoon, which he did, arriving there about 1:30, and going to work at once. He left about 5:30, before finishing, going to the cleaning house, where he ate his supper, changed his clothes, went downtown, returned and erased his name from a book which gave the information that he had been sent to 1054 Clayton. That night he went to McCook, Neb., changed his name, and in a couple of days went to work as a section hand. Later he was arrested there, brought to Denver, and placed in jail. While confined, he made two separate statements to the authorities regarding the transaction, which were reduced to writing, and on the trial were read to the jury as part of the people's case in chief. In the first statement, he said he had not worked at all at 1054 Clayton; that he went there; but that the lady who came to the door told him she wanted a Jap to come in the morning, and not in the afternoon, so he returned to the cleaning establishment. In the second statement he said he worked at 1054 Clayton, cleaning the windows in the afternoon, and assisted a man in putting the dead body of Mrs. Wilson in the box. In the first statement, he said he went on the train with 12 Jap boys to McCook. In the second, he said he did not know whether they were on the train; that he met them after he arrived there. In the first statement, he said he borrowed the money to buy a ticket to McCook. In the second statement, he said he bought it with money given him by the man he assisted. On the trial, he said that he was sent by the cleaning establishment to 1054 Clayton, where he made an agreement with the lady to clean her windows and bathtub, and went to work at once; that he cleaned the windows first and then went to the bathroom, the lady being about the house, and occasionally conversing with him; that, while he was working in the bathroom, a tall stranger came in, his face scratched and bleeding, and his shirt covered with blood, who, with a revolver in his right hand, seized defendant with his left, and forced him to go to the cellar, where, at the bottom of the stairs, lay the dead body of the lady; that the man's left arm was injured, and he put a cloth around her neck, stood on one end of it, and pulled the other end with his right hand until it was tight, then at the point of his revolver he foreced defendant to assist him in putting the body in the box; that the stranger, still threatening him with his revolver, forced him to take rags and wipe up the blood stains, after which he took him to the front door, gave him $30, and pushed him out. Going to the cleaning establishment, he changed his clothes, ate supper, and went downtown, where he met a fellow countryman, to whom he related the occurrence, and, being informed that it was a serious matter, he became frightened, went back and erased his name from the book showing his presence at 1054 Clayton, not on account of the transaction, but to escape the payment of a commission; then went downtown again, and tried to secure a railroad pass to accompany a number of Japanese boys who were going to McCook, Neb., to work on the section, but, failing in this, he bought a ticket with a portion of the money the man had given him, and left that night.

The defense is that the murder was committed by the stranger who compelled defendant to assist him in putting the body in the box and wipe up the blood stains, and an attempt is made to cast suspicion upon Mr. Wilson. There is no evidence in the whole record even suggesting the husband had anything to do with the crime. No objection is made here that the evidence is not sufficient to support the verdict. The errors assigned are: (1) Challenge to the array; (2) election between counts; (3) remarks of the district attorney in opening the case; (4) refusal to allow certain cross-examination; (5) admission of defendant's statements; (6) failure of the chief of police to produce certain clothes. Such of these assignments as have not been abandoned will be considered.

2. Defendant challenged the array because the jurors were selected upon an open venire, and not drawn, at a time when there were in the box the names of 500 competent jurors. There is nothing in this contention. The statute provides that the court may order a jury drawn from the box, or summoned by an open venire. Whenever the court needs more jurors, it has the power, under the statute, to either draw them from the box or summon them by an open venire. Aside from this, we have held that the statutory method of summoning jurors is not exclusive, and, unless prohibited, the court has the inherent common-law power to select a jury upon an open venire, directed to the sheriff. Mackey v. People, 2 Colo. 13; Giano v. People, 30 Colo. 26, 69 P. 504; Imboden v. People, 40 Colo. 142, 90 P. 608; Walt v. People, 46 Colo. 138, 104 P. 89.

3. It is next complained that the district attorney in his opening statement told the jury that the defendant had confessed, and narrated the purported confessions--being the two statements afterwards admitted in evidence--to the jury. It is contended the court should not have allowed the prosecution to do this, because the admissibility of the evidence had not been determined, and, if excluded, the rights of the defendant might be jeopardized. It probably would be the better practice, ordinarily, for the prosecution in opening, merely to refer to such matters, without going into details; because at the trial the offered evidence might be excluded. In this case, however, no harm was done the defendant, because the statements were afterwards held competent, and admitted in evidence.

4. Deceased's...