Roper v. People
| Decision Date | 02 June 1947 |
| Docket Number | 15794. |
| Parties | ROPER v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied June 23, 1947.
Error to District Court, Lake County; William H. Luby, Judge.
Clarence Alonzo Roper was convicted for voluntary manslaughter, and he brings error.
Affirmed.
Anthony F. Zarlengo, of Denver, and A. J. Laing of Leadville, for plaintiff in error.
H Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty Gen., and James S. Henderson, Asst. Atty. Gen., for defendants in error.
Clarence Alonzo Roper was charged by information in the district court of Lake county with the murder of Felix Gallegos, and convicted of voluntary manslaughter. He seeks reversal of the judgment by reason of the refusal of the trial court to give the tendered instruction hereinafter set forth.
The deceased was shot and killed by a bullet discharged from a gun held by the defendant in the latter's tavern in Leadville on March 7, 1946. Defendant freely admitted to the police officers at the time of his arrest that he shot deceased, and on the witness stand related all of the circumstances leading up to the shooting. He testified that shortly Before his arrest he had put his gun in the safe and had 'poured a big beer glass half full of whiskey and drank it,' and then went back to work; that a short time thereafter the officers came and as to what then occurred, he testified as follows:
The officers testified that when defendant arrived at the jail he addressed Buck Glenn, the undersheriff, and said in the presence of Tom Holden, the jailor, and Captain O'Malia, the arresting officer, 'Well, Buck, I guess I got one.'
Counsel for defendant contend that the statement last above mentioned was not voluntary; that it was made at a time when defendant was intoxicated, and did not know what he was saying; and that the question of voluntariness should have been determined by the jury under proper instructions. On the trial they tendered the following instruction, and assert that the refusal of the court to give said instruction is reversible error. This is the only question presented for review. The requested instruction is as follows: 'You are instructed that in considering any statements alleged to have been made by the defendant you should consider the physical and mental condition of the defendant at the time the alleged statements were made as the said condition may be established by the evidence in the case.'
The gist of this refused instruction is that, the jury should 'consider the physical and mental condition of the defendant at the time the alleged statements were made.' The court instructed the jury by its Instruction No. 18, that they were the sole judges of the credibility of the witnesses and of the weight to be given their testimony, and that they should consider 'all other facts and circumstances shown by the evidence, which in your judgment affect the credit due to them respectively.' The giving of the tendered instruction would have added nothing to, and detracted nothing from, Instruction No. 18. While it does not appear in the record, we are warranted in assuming that defendant's able counsel explained to the jury that the statement of defendant should be given little, if any, weight, because of his physical and mental condition, at the time it was made, and that the question of the weight of the evidence was exclusively for its determination.
The statement, 'Well, Buck, I guess I got one,' is patently meaningless standing alone and could not be prejudicial to the defendant, or construed as a confession or admission. It only has meaning when considered on connection with his previous voluntary statement in his testimony, that the deceased said to him shortly Before the shooting that the defendant thought 'he was better than a Mexican'. This must have been in the defendant's mind when he later said, 'I got one'. Defendant does not contend that he did not make the statement. He merely asserts that if he did make such statement, it was involuntary because of his inebriated condition. The jury no doubt was convinced that he knew what he was saying when the statement was made. He admitted he had 'a slight recollection of coming up' to the jail. Also the jury must have been satisfied that he had more than 'a slight recollection.' Immediately upon his arrival at the jail and seeing the deputy sheriff sitting at the desk, he said, 'Well, Buck, I guess I got one,' which indicates that he was sufficiently sober to know what he was saying when he knew to whom he was speaking.
It is generally held that 'The fact that accused was more or less intoxicated when he confessed does not exclude the confession if he had sufficient mental capacity to know what he was saying'. 22 C.J.S. Criminal Law, § 828, p. 1452.
As heretofore recited, defendant freely admitted the shooting and voluntarily took the witness stand and revealed all of the minute circumstances leading up to the time when he claims the whisky 'hit him'. Prior to that time he concedes he was 'cold sober'. Having made a confession or admission voluntarily when he was in possession of his mental faculties, 'A subsequent involuntary confession does not destroy or lessen the effect of a prior voluntary confession.' 22 C.J.S., Criminal Law, § 817, p. 1437.
The tendered instruction, even if otherwise proper, is defective and incomplete in that it would not advise the jury what, if anything, they should do in the event they found the statement was involuntary by reason of defendant's alleged intoxication. An instruction upon the question of voluntariness was considered and approved by us in Bruner v. People, 113 Colo. 194, 156 P.2d 111. It is unnecessary here to quote that instruction verbatim as it is set forth in said opinion. A comparison will disclose that the tendered instruction in the instant case is fatally defective and does not conform to the requirements set forth in our opinion above referred to.
In the present case defendant made no objection whatsoever to the admission of the above statement in evidence, and consequently, the trial court had no opportunity to pass upon the question in the first instance as to whether or not it was voluntary, as our decisions require. It is conceivable that the trial court, if given an opportunity, and upon a proper showing, might have agreed with counsel and excluded the statement from the jury's consideration. Counsel have no right to assume that the trial court would have admitted it over their objection. On review we are entitled...
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