Shank v. People

• Decision Date: 01 June 1926
• Docket Number: 11477.
• Citation: 247 P. 559,79 Colo. 576
• Parties: SHANK v. PEOPLE.
• Court: Colorado Supreme Court

247 P. 559

79 Colo. 576

SHANK v. PEOPLE.

No. 11477.

Supreme Court of Colorado, En Banc.

June 1, 1926

Rehearing Denied June 28, 1926.

Error to District Court, City and County of Denver; Charles C Sackman, Judge.

Ray F Shank was convicted of first degree murder, and he brings error.

Affirmed.

O. A. Erdman and Charles Ginsberg, both of Denver for plaintiff in error.

William L. Boatright, Atty. Gen., Louis W. Burford, Asst. Atty. Gen., and Foster Cline, Dist. Atty., of Denver (A. L. Betke, Asst. Dist. Atty., of Denver, of counsel), for the People.

BURKE J.

Plaintiff in error, hereinafter referred to as defendant, prosecutes this writ to review a death sentence pronounced against him on a verdict of guilty of first degree murder. His victim was his wife, and his defense was insanity. He says the judgment must be reversed for the following reasons: (1) Certain jurors who held disqualifying opinions should have been excused therefor; (2) others were erroneously excused for such opinions; (3) the jury was not properly instructed as to manslaughter, criminal intent, and insanity; (4) the verdict should have been set aside for insufficient evidence and improper influence; (5) after verdict, and before sentence, defendant's sanity should have been judicially determined.

Under a strict application of the rules governing such reviews these assignments would require scant consideration because they fall into these three classes: Those in which we are asked to overrule all our former decisions on the same question, those based on instructions not abstracted, and those based on questions of fact decided by the jury on conflicting evidence. However, considering the enormity of the crime charged and the extremity of the sentence, we have neither relied upon these rules nor been content with an examination of briefs and abstract, but have read the entire transcript and carefully re-examined long-settled questions.

The essential facts of this tragedy are undisputed. The husband and wife were married September 4, 1902, and at the time of the homicide were living together in Denver. Their son Paul, 19 years old, and their daughter, Ruth, 21, resided with them. Paul weighed approximately the same as his father, but was taller. Defendant had always been a stubborn man with a tendency to be morose and little given to conversation. He frequently disagreed with his wife and daughter, particularly about repairing their dwelling and building a new one. Some years before he had attempted to strike Paul while the latter was ill in bed. Mrs. Shank came between them and was knocked down. After finishing high school Ruth took a course in the state university. Her father at that time owned his little home, and had about $3,000 in cash. He 'thought the university could get along without her,' but offered to give her $2,000 for her education. It was agreed that, instead, he should give her $500 at the begining of each year. He actually paid out for this purpose something less than $2,000. As time went on the family relations became more strained. The daughter was always an advocate of her mother, but the son was neutral. Mrs. Shank's health finally broke down, and about 1920 she underwent a serious operation and spent some weeks in a hospital. Thereafter medical attention was frequently required. Defendant seemed to resent this. He had for many years been afflicted with hay fever, and imagined that his wife's illness caused an odor which aggravated his trouble when he was much about her. October 2, 1924, Ruth, for the first time, revealed her own feelings in a long and intimate letter to her father, in which she returned, money he had sent her and begged him to devote it to the comfort of her mother and brother. She pointed out to him in a most kindly way his own shortcomings which contributed to the family unhappiness, protested the love of all three for him, reminded him of her mother's illness, disappointments, and need of affection, and begged him to change his conduct. This letter, instead of accomplishing its purpose, only served as an added irritant. In the summer of 1925 Ruth and her mother were in California. They returned September 2, and the friction was at once renewed. September 4, the old subject of needed repairs was taken up, and some were made. During the preceding argument defendant raised his hands as if to strike his daughter, and she said to him, 'Don't touch me; are you crazy?' Mrs. Shank then called out, 'Papa is going to hit Ruth'; whereupon Paul entered the room and said, 'Don't worry mamma; he won't touch her.' At the close of this altercation Ruth left the house with assurances to her mother that she would stand by her. As a result of the trouble the daughter, who about this time began teaching in the city schools, took up her residence elsewhere. In the forenoon of Saturday, September 12, Mrs. Shank, accompanied by Ruth, went to the office of Attorney Garwood, an old friend of the family, and laid her troubles before him. About noon of that day he called on defendant at his shop. While Shank did most of the talking, Garwood told him there were three ways open for a settlement of the family difficulties--a private conference and reconciliation with his wife, an amicable separation, or court action, and urged the first. As a result of this interview defendant had some talk with his wife, but they made no progress, and she sent Garwood word to proceed. Mrs. Shank was taken ill on Sunday the 13th (from which illness she was confined to her bed until her death), and Ruth thereupon came home. On the evening of the 15th defendant retired on the sleeping porch, where he and Paul had single beds. The latter was out. Mrs. Shank and Ruth slept together in a double bed in an adjoining room. About 10 p. m. an officer came to the house and inquired for defendant. His daughter called him. He dressed, came out, and was served with summons and copy of a complaint in a divorce action. The ground stated therein was extreme and repeated acts of cruelty. None of these were specified, but the complaint recited that a bill of particulars would be furnished on request. Defendant read the papers, and the officer departed. Defendant returned to his bed, but did not undress. He lay there thinking things over. He says that after the quarrel of September 4 he had some thought of violence against his wife and daughter, but at the time he retired on the evening of the 15th this had passed, and he was then untroubled and entertained no malice. At midnight Paul came home and went to bed on the sleeping porch. About 2 a. m. defendant went outside, climbed to an attic, procured a gun and ammunition, and returned. He says by 4 a. m. he had concluded that if the family could not live together in peace it was best to end it all, and, as he felt responsible for them, he decided to kill all three and commit suicide. He says he knew this was 'a terrible thing.' He thereupon shot Paul as he lay sleeping, and started toward the room of his wife and daughter. They were awakened by the noise, and his wife called, asking him what caused it. He answered, 'A lamp globe.' She then turned on a reading lamp on the bed. The light revealed defendant standing in the room with the gun pointed toward his wife, who slept on the side next to him. Ruth cried out and sprang to his side. He knocked her over and fired, killing his wife. A scuffle then ensued between father and daughter in the course of which the latter escaped from the room and ran screaming outside. Defendant pursued, overtook, and beat her with the gun. A neighbor, awakened by the girl's cries, sprang through his window, grappled with defendant, and disarmed him. Ruth took refuge in an adjoining home, and officers who were called found defendant in his bathroom in the dark with his clothes partly saturated with water, arrested, and incarcerated him. Defendant says he attempted to drown himself in the bathtub.

1. Certain jurors were challenged for opinions on the subject of guilt, formed or expressed. In each instance the juror said the opinion was not an unqualified one, and, notwithstanding it, he could and would be governed by the evidence and instructions. Under such circumstances the question of qualification rests in the discretion of the court. The rule is settled in this jurisdiction by statute and a long and unbroken line of decisions. Section 5883, p. 1558, C. L. 1921; McGonigal v. People, 74 Colo. 270, 220 P. 1003.

Defendant's last peremptory challenge was used on a juror who had stated that in arriving at a verdict he would consider the killing by the accused of the mother of his children as a predominating factor. When the juror's attention was called to other elements he clearly qualified, saying he would give defendant the benefit of any doubt of his sanity, if that were a defense. He had apparently learned for the first time that the killing was admitted, and his answer showed the natural reaction of a normal man. He might have gone further and stated that the fact of an unjustifiable homicide would be the predominating factor, because, while up to that point the prosecution carries the burden of proof beyond a reasonable doubt, sanity is presumed. He who relies upon its absence must then produce evidence which will at least raise a reasonable doubt of its existence.

'The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused. * * *' Section 6681, p. 1733, C. L. 1921.

Hence the predominating factor in every verdict of guilty of murder should be an unjustifiable homicide.

2. Certain jurors declared that, notwithstanding evidence and instructions, they would, under no circumstances, vote to inflict the...