Reppin v. People

• Decision Date: 18 June 1934
• Docket Number: 13445.
• Citation: 34 P.2d 71,95 Colo. 192
• Parties: REPPIN v. PEOPLE.
• Court: Colorado Supreme Court

34 P.2d 71

95 Colo. 192

REPPIN v. PEOPLE.

No. 13445.

Supreme Court of Colorado, En Banc.

June 18, 1934

Error to District Court, El Paso County; Arthur Cornforth and John C. Young, Judges.

Walter R. Reppin, an infant, was convicted of murder in the first degree, and he brings error.

Reversed.

BURKE J., ADAMS, C.J., and CAMPBELL, J., dissenting.

David Rosner and Philip Hornbein, both of Denver for plaintiff in error.

Paul P Prosser, Atty. Gen., and Charles H. Queary, Asst. Atty. Gen. (Clyde L. Starrett, Dist. Atty., and Thomas I. Purcell, Asst. Dist. Atty., both of Colorado Springs, of counsel), for the People.

BUTLER Justice.

Walter Reppin, a minor, referred to herein as the defendant, brings here for review a death sentence in a homicide case. The Honorable Arthur Cornforth presided at the trial.

On August 11, 1933, in the evening, the defendant armed himself with a .38-caliber gun and a .44-caliber gun, both loaded, and telephoned for a taxicab. When the taxicab, driven by Vincent Regan, arrived, the defendant entered, drew the guns on Regan, and ordered him to drive where he was told. Near Evergreen Cemetery he ordered Regan out of the taxicab and made him lie on the ground, face down. Hearing an automobile approaching, the defendant hit Regan on the head with the larger gun. Regan jumped up and started to fight. The defendant knocked him down and backed away. As Regan came toward him, the defendant shot him, and then jumped into the taxicab and drove away. The driver of a passing automobile took Regan to a hospital, where he made a statement, and died. The defendant was arrested and confessed that he shot Regan. He said that he 'wanted the cab to pull a stickup.' An information was filed, charging him with murder; the court appointed an attorney for him; the defendant pleaded guilty; evidence was taken Before a jury; they fixed the penalty at death; and sentence was pronounced accordingly. Thereafter, through his present counsel, he petitioned the trial court to set aside the verdict and the sentence. The court, the Honorable John C. Young presiding, denied the petition, and the defendant is here seeking relief.

Several assignments of error are argued. They present the following points: Error was committed, it is said, in failing to furnish the defendant with a list of the jurors at the time of his arraignment. Other assignments are that the court erred in accepting the plea of guilty, in admitting in evidence a dying declaration, in receiving evidence of independent, unrelated offenses, and in instructing the jury, in effect, to find the defendant guilty of murder of the first degree. Of these in their order.

1. The list of jurors.

Section 7067 of the Compiled Laws provides that every person charged with murder or other felonious crime shall be furnished, previous to his arraignment, with a list of the jurors. It is suggested by counsel for the defendant that the record shows that this requirement was not complied with. That is a mistake; the record is silent on the subject. The most that can be said is that the record does not affirmatively show a compliance with the statute. But there is no requirement that the record shall show such compliance. There was no objection in the trial court on account of any failure to furnish the list of jurors. In the circumstances, it will be presumed that the trial court proceeded regularly. It is not contended that the list was not furnished; but if such was the case, the defendant waived the irregularity by not objecting in the court below. Parker v. People, 13 Colo. 155, 21 P. 1120, 4 L.R.A. 803. Furthermore, what was said in Hendricks v. People, 78 Colo. 264, 241 P. 734, 735, is applicable here: 'The record does not disclose that any challenges whatever were made by the defendant to any of the jurors. Moreover, there is nothing in the record to show prejudice or bias on the part of the jury, or that it was not a fair and impartial one.' Even if the list was not furnished (and there is nothing in the record to indicate that it was not), the defendant's substantial rights, in the circumstances, were not prejudiced by such omission. Unless the accused was put to a disadvantage from the irregularity, if there was such, his conviction ought not to be interfered with because of the irregularity. C. L.§ 7103; Goodhue v. People, 94 Ill. 37, cited in Minich v. People, 8 Colo. 440, 447, 9 P. 4.

This assignment of error cannot be sustained.

2. The plea of guilty.

It is said that as the defendant is a minor, it was error to accept his plea of guilty.

At the time of pleading, the defendant was eighteen years, three months, and five days old. We have several statutory provisions bearing upon the status of minors in the criminal law. Section 6636 of the Compiled Laws provides that an infant under the age of ten years shall not be found guilty of any crime or misdemeanor. Criminal intent is manifested by the circumstances connected with the perpetration of the offense and the sound mind and discretion of the accused. C. L. 6634. In section 6635 it is provided: 'A person shall be considered of sound mind who is neither an idiot, nor lunatic, nor affected with insanity, and who hath arrived at the age of fourteen years, or Before that age, if such person know the distinction between good or evil.' Section 6665 provides: 'That no person shall suffer the death penalty who, at the time of conviction, was under the age of eighteen (18) years.' Those who are over the age of eighteen years at the time they are convicted of murder of the first degree, except those convicted on circumstantial evidence alone, shall be sentenced to suffer death if that penalty is fixed by the jury. Wechter v. People, 53 Colo. 89, 100, 124 P. 183. When the defendant was sentenced, his age was eighteen years, three months, and twenty days.

In 16 C. J. p. 401, it is said that 'the fact that accused is a minor does not preclude his entering a plea of guilty to a criminal charge.' And see People ex rel. v. Wandell, 21 Hun (N.Y.) 515; Ex parte White, 50 Tex. Cr. R. 473, 98 S.W. 850, 851; Ledrick v. United States, 42 App. D. C. 384. In Ex parte White the court said that 'the fact that appellant was a minor would not preclude his entering a plea of guilty to a criminal charge.'

In Ledrick v. United States, supra, the court said: 'It is the duty of a court not to receive a plea of guilty in the case of an infant, and not to permit him to be convicted unless his capacity to commit crime has been satisfactorily shown, and that he understands the nature and consequences of his plea of guilty.'

Whether the accused is a minor or an adult, the court, upon tender of a plea of guilty, should exercise caution in proportion to the gravity of the consequences. 2 Bishop's New Criminal Procedure (2d Ed.) § 795. Pleas of guilty are 'sufficient to found a conviction, even if to be followed by sentence of death, they being deliberately made, under the deepest solemnities, with the advice of counsel, and the protecting caution and oversight of the judge.' 1 Greenleaf on Evidence (16th Ed.) § 216. In the present case the plea of guilty was so made. On August 21, 1933, the court appointed a lawyer to defend the accused. For over three weeks Before pleading, the defendant has the benefit of conferences with his attorney. The victim of the homicide had made a dying declaration to the effect that the defendant shot him, and the defendant had made repeated confessions of guilt. He pleaded guilty on advice of counsel, and after the court fully explained to him the effects and consequences of such a plea. Though a minor, he was not a child of tender years, and there is no suggestion in the record that he was mentally defective. His confessions and his testimony indicate that the defendant understood, not only the nature of the crime he committed, but also the nature and consequences of a plea of guilty.

Counsel cite, as controlling, the case of Ridge v. State, 25 Okl. Cr. 396, 220 P. 965, 966, and quote the following from the opinion: 'An infant can neither sue nor defend a suit in a civil action, and with even less propriety can an infant waive his substantial rights in a criminal proceeding, and where a court arbitrarily appoints a stranger to represent him, the person so appointed should, in a capital case, refrain from waiving any of the provisions of the statutes designed for the infant's protection, unless it appears beyond all doubt that the infant fully understands the effect and the results growing out of such waiver.'

But that was said in a case where the defendant was only thirteen years and eight months old, and where the court thus describes the proceedings: 'A condensed recapitulation of the steps taken shows that at a hearing had in the juvenile court on September 12, 1922, Elias Ridge was adjudged to be a delinquent child, knowing the wrongfulness of his acts at the time he committed the fatal assault; that on the same day an information was filed in the district court, charging him with murder; that on the same day a purported preliminary hearing was had Before the county court, in which an attorney not employed by the accused or any one for him, but later appointed by the district court, waived his preliminary hearing; that from the county court the accused was taken immediately Before the district court, where this attorney was appointed to represent him; that the accused was there arraigned and on advice of his counsel pleaded guilty; that under instructions from his appointed attorney he also waived the statutory time for the pronouncing of sentence, whereupon the accused was sentenced to die in the electric chair; that all of this was done on the 12th day of September, 1922. Every step taken,...