Nesbit v. People

• Decision Date: 07 March 1894
• Citation: 19 Colo. 441,36 P. 221
• Parties: NESBIT v. PEOPLE.
• Court: Colorado Supreme Court

36 P. 221

19 Colo. 441

NESBIT v. PEOPLE.

Supreme Court of Colorado

March 7, 1894

Error to district court, Arapahoe county.

Upon information filed by the district attorney, William Nesbit was convicted of murder of the first degree, and sentenced accordingly. He brings the cause to this court by writ of error. Affirmed.

Defendant was a man upwards of 50 years of age. Mrs. Irwin, the deceased, was about 48. Both were residents of the city of Denver. Mrs. Irwin lived at 2404 Larimer street, and, with her sister, Miss Kate Swift, kept boarders. Defendant and Mrs. Irwin had had business dealings concerning the furniture and good will of the boarding house, and other property. These dealings culminated in a lawsuit. The cause was tried and concluded on March 31, 1893, at about 11:30 o'clock in the forenoon. Defendant was present at the trial, and so also, was Mrs. Irwin, accompanied by her sister. The result of the trial was unfavorable to defendant. After the trial Mrs. Irwin and her sister went home; and Mrs. Irwin, being sick with a cold, as her sister testified, retired to bed. Defendant, also, at the close of the trial, went to his room. Some time after he went into a brass foundry near his place where he met some acquaintances, and stayed there awhile visiting, and drinking beer. About 4 o'clock of the same day, he went into the saloon which was under the apartments occupied by Mrs. Irwin, and there took a drink of whisky. He then went up stairs, met Miss Swift, with whom he was acquainted, and, as she testifies, said to her pleasantly, 'How do you do?' Defendant asked for Mrs. Irwin. Upon being told that Mrs. Irwin was in her room, asleep, he said, 'I would like to see her.' Miss Swift went into the bedroom where her sister was, and, returning, told defendant that Mrs. Irwin was in bed and could not see him. He insisted upon seeing her, saying, 'I must see her.' Miss Swift went again to her sister's bedroom, and, returning, told defendant that Mrs. Irwin was undressed, and could not see him. Defendant replied. 'She need not get out of bed. I will speak to her at the door.' Miss Swift testifies that she saw nothing unusual in defendant, and so went into the kitchen near by. It appears that defendant opened the door, stepped into Mrs. Irwin's room, and said, 'I have come to settle the matter with you, and thereupon drew a revolver, and fired four bullets into her body. Miss Swift testifies that, hearing the shots, she came to the door in time to see defendant fire the fourth shot, and that Mrs. Irwin was kneeling at her bedside at the time. Defendant said to Miss Swift, 'I will shoot you;' and, upon her running down the back stairs, defendant went out, and was arrested. Being somewhat roughly handled by persons assisting in the arrest, defendant became excited, called names, and made use of profane language. Defendant was placed in the police patrol wagon, and, upon being searched, the weapon with which he had done the shooting was found in his coat pocket. Defendant was soon thereafter taken back to the house where Mrs. Irwin was lying wounded; and, upon her identifying him as the man who had shot her, defendant said, with profane expletives, 'I am sorry I didn't give you more of it.' On being removed to the police station, defendant was called into the office of the chief, and, being asked why he had done the shooting, said again, in profane and foul language, she 'cheated me, and sold me out under a mortgage. she beat me in a trade. We had a lawsuit in the morning, and she beat me because I didn't have enough to swear. I shot her three times. I was not drunk.' Mrs. Irwin died, as the result of her wounds, the third day after the shooting. On the defense, defendant testified that he had no recollection of the shooting, nor of anything for a few hours previous thereto. Other witnesses for defendant testified, giving an account of his life, his business habits, conduct, characteristics, and circumstances tending to show that he was somewhat erratic, and, in their opinion, of unsound mind, at times. The state offered testimony in rebuttal of the alleged insanity of defendant; Dr. Eskridge testifying that from an examination made by himself, as well as from the testimony stated to him in a hypothetical question, he was of the opinion the defendant was sane.

Const. art. 19: 'Sec. 2. Any amendment or amendments to this constitution may be proposed in either house of the general assembly and if the same shall be voted for by two-thirds of all the members elected to each house, such proposed amendments, together with the ayes and noes of each house thereon, shall be entered in full on their respective journals; and the secretary of state shall cause the said amendment or amendments to be published in full in at least one newspaper in each county, (if such there be), for three months previous to the next general election for members to the general assembly; and at said election the said amendment or amendments shall be submitted to the qualified electors of the state for their approval or rejection, and such as are approved by a majority of those voting thereon shall become part of this constitution; but the general assembly shall have no power to propose amendments to more than one article of this constitution at the same session.'

Syllabus by the Court

1. The power of the general assembly to propose amendments to the constitution is not subject to the provisions of article 5, regulating the introduction and passage of ordinary legislative enactments. Section 2 of article 19 prescribes the method of proposing amendments to the constitution, and no other rule controls.

2. A question of fact, as to the existence or nonexistence of a law (constitutional or statutory), is a question of law, to be determined by the court, and not by some other tribunal; and, in deciding such question, resort may be had to other evidences than the Session Laws published by authority.

3. Constitutional provisions are generally to be considered mandatory, rather than directory, and those regulating the mode of making amendments to the constitution must, in general, be strictly observed; but the amendments to sections 6, 19, and 22 of article 5 of the constitution, approved in 1884, though not accurately entered in full on the journals of the two houses, are held to be valid, for reasons stated in the opinion.

4. The statute providing that crimes and misdemeanors may be prosecuted and punished by information based upon preliminary examination and commitment, is not contrary to any constitutional provision.

5. The statutes providing that district attorneys and clerks of district courts, respectively, may act by deputy, are valid; and, where the district court recognizes such deputies, it is to be presumed, in the absence of anything to the contrary, that such deputies were duly appointed and qualified.

6. Where objections relate to statutes which are in no manner cited or pointed out, either in the record proper, or in the bill of exceptions, or in the assignment of errors, or in the brief or argument of counsel, such objections, under the standing rules and practice of this court, will not be considered.

7. The defense being insanity, the court, upon motion of defendant, with the consent of the district attorney, appointed a physician to make an examination, and to testify on the trial, as to defendant's mental condition. Held that an examination and consultation between defendant and the physician, under such circumstances, were not confidential, and that the physician could be called by the state to testify in rebuttal, even though he had not been called by defendant.

8. A motion for a new trial on the ground of after-discovered evidence, to be availing, must show that the moving party could not, with reasonable diligence, have discovered the evidence in time for the former trial; and, where the newly-discovered evidence consists of a professional opinion as to the mental condition of defendant, the motion is insufficient, unless it be shown that proper efforts were made to obtain the same before the trial.

9. The term 'talesmen,' in section 4 of the act of 1891 concerning jurors, includes such persons as may be summoned to supply a deficiency in the regular panel, as well as persons summoned for the trial of a particular cause.

Daniel Prescott, for plaintiff in error.

Eugene Engley, Atty. Gen., and H. F. Sale, Asst. Atty. Gen., for the People.

ELLIOTT, J. (after stating the facts).

At the outset of this case, we are confronted with a question of the utmost importance,--a question involving the validity of certain amendments to the constitution, as proposed by the general assembly in 1883. The title of the act proposing the amendments, as finally passed, was as follows: 'An act to submit to the qualified electors of the state of Colorado amendments to sections six (6), nineteen (19), and twenty-two (22) of article five (5) of the constitution of the state of Colorado, concerning legislative department.' Sess. Laws 1833, p. 21. The amendments thus proposed provided, in effect: (1) That 'no session of the general assembly shall exceed ninety days.' The original limit, after the first session, was 40 days. (2) That 'no bill, except the general appropriation bill for the expenses of the government only, introduced in either house of the general assembly after the first thirty days of the session shall become a law.' The original limit was 25 days. (3) That 'every bill shall be read by title when introduced, and at length on two different days in each house.' The original section provided that 'every bill shall be read at length on three different days in each house.' For original sections 6, 19, 22, art. 5, see Gen. St. 1883, p....