Moya v. People

• Decision Date: 27 October 1930
• Docket Number: 12638.
• Citation: 88 Colo. 139,293 P. 335
• Parties: MOYA v. PEOPLE.
• Court: Colorado Supreme Court

293 P. 335

88 Colo. 139

MOYA v. PEOPLE.

No. 12638.

Supreme Court of Colorado, En Banc.

October 27, 1930

Rehearing Denied Nov. 17, 1930.

Error to District Court, City and County of Denver; James C Starkweather, Judge.

William Moya was convicted of murder in the first degree, and he brings error.

Affirmed.

Martin C. Molholm, of Denver, for plaintiff in error.

Robert E. Winbourn, Atty. Gen., and E. J. Plunkett, Asst. Atty Gen., for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, was informed against for the murder of one Zemp. A jury found him guilty in the first degree and fixed the penalty at death. To review the judgment thereupon entered, he prosecutes this writ.

Under the ten assignments, the following alleged errors are argued (1) The insufficiency of the evidence; (2) the admission of certain 'confessions'; (3) the admission of certain exhibits; (4) the admission of certain testimony of the deputy coroner; (5) the admission of testimony concerning the weight of defendant; (6) the giving of instruction No. 8; (7) the giving of instruction No. 21. No other questions raised by the assignments are worthy of consideration.

1. Zemp was approximately 80 years old, weighed 135 pounds, and was in poor health. Defendant and his family, a wife and three children, were his tenants. Zemp reserved and resided in the basement. There he was killed by defendant January 27, 1930, by being terribly beaten with a shoe last. He had on his person and in his room at the time money and valuable papers. Defendant appropriated the money, destroyed and concealed the papers, hid the body in an outhouse, attempted to clean up the bloody evidences of the killing, and padlocked the door. The body was found and defendant arrested two days later. At first he denied knowledge of Zemp's whereabouts. Later, in jail, he made a statement, Exhibit O, in which he charged one Barela with the killing. He repeated this charge in Barela's presence. About two hours later he made another statement, Exhibit P, in which he admitted the killing, claimed it was done in self-defense, exonerated Barela, and asked that he might see him and beg his forgiveness. The trial began March 4, 1930. At that time defendant was 30 years old and weighed 146 pounds. He had served time in the penitentiary in New Mexico, to which he was sentenced in 1923 to a term of six to eight years for perjury committed on a former trial wherein he was charged with murder.

The foregoing undisputed facts were before the jury. Against them stands, practically alone, the testimony of defendant that he was attacked by Zemp and killed him in self-defense. The verdict was overwhelmingly supported.

2. Exhibits O and P were in the form of questions and answers taken down by a stenographer and transcribed, and the latter signed by defendant. It is contended that neither is shown to be voluntary, hence both should have been excluded; also that, since in neither does defendant admit his guilt, neither is a confession under the rule laid down in Mitchell v. People, 76 Colo. 346, 232 P. 685, 686, 40 A.L.R. 566, hence this is a case of circumstantial evidence in which the death penalty could not be imposed.

Even defendant testified that he made these statements voluntarily. The contrary can only be argued from inferences drawn from some of his answers, and these are flatly contradicted by the officers who questioned him and the stenographer who took the notes. As said in the Mitchell Case, supra: 'The court heard * * * evidence on this subject, in the absence of the jury, and held the confession voluntary. * * * The question was primarily one for the court. * * * In the absence of a clear abuse of discretion, that ruling will not be interfered with. No such abuse appears.'

The second portion of this objection is answered by the fact that the rule in the Mitchell Case is not confined to complete confessions, but goes to all admissions against interest, and is, of course, applicable to Exhibit P, wherein defendant admits that he killed Zemp. But a more complete answer is found in the fact that defendant took the stand in his own behalf and voluntarily testified to every statement made in Exhibit P. Hence, if the admissions thereof had been erroneous the error would have been without prejudice.

Our statute provides: 'Nor shall any person suffer the death penalty who shall have been convicted on circumstantial evidence alone.' Section 6665, C. L. 1921.

Since defendant himself admitted that Zemp was dead and that he slew him, in no view of the case could it be said that the verdict rested on circumstantial evidence 'alone.' The remaining question here was one of intent, and such evidence thereof as here appears has been held direct, not circumstantial. Wechter v. People, 53 Colo. 89, 93, 124 P. 183.

No answer made by defendant, as set forth in Exhibit O, was denied by him, and all were testified to by the officers and stenographer. It was therefore nothing more than corroboration of oral testimony all of which was clearly admissible to show contradictory statements. That it was not signed is immaterial. Bosko et al. v. People, 68 Colo. 256, 188 P. 743.

3. Photographs of deceased showing his wounds, photographs of the room where he was slain, showing its condition and disorder and the articles it contained, photographs showing the place where the body was found, and Zemp's blood-stained clothing, were all admitted over defendant's objection. It is said that their exhibition was unnecessary and was calculated to, and did, arouse the passions of the jurors and sway their judgment. Oral evidence of the wounds which caused death, of the place where the body was concealed, and of the brutal method by which it was disposed of, all, of necessity, had a like tendency. But, if evidence is competent,...