Townsend v. People, 14747.
| Decision Date | 24 February 1941 |
| Docket Number | 14747. |
| Citation | 111 P.2d 236,107 Colo. 258 |
| Parties | TOWNSEND v. PEOPLE. |
| Court | Colorado Supreme Court |
Rehearing Denied March 17, 1941.
Error to District Court, Boulder County; Claude C. Coffin, Judge.
Wilmer E. Townsend was convicted of murder in the first degree, and he brings error.
Judgment reversed, and cause remanded for a new trial.
Eugene H. Tepley, of Denver, for plaintiff in error.
Byron G. Rogers, Atty. Gen., and Gerald E. McAuliffe, Asst. Atty Gen., for defendant in error.
Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen and James S. Henderson, Asst. Atty. Gen., for defendant in error on petitioner for rehearing.
Plaintiff in error, to whom we hereinafter refer as defendant, was convicted of murder in the first degree and sentenced to death in accordance with a verdict which so prescribed. The victim of the homicide was defendant's wife. The cause of her death was an intercranial hemorrhage and shock following a severe and grievous beating administered by defendant. The plea was not guilty and not guilty by reason of insanity at the time of the homicide and since. Counsel who appears here for defendant, did not participate in the trial below.
The initial onset, a slap on the face of the deceased, was made in the course of a family argument over a trivial matter at about 8:30 o'clock in the evening. Thereafter assaults upon the wife continued intermittently with accelerated cruelty and viciousness until well beyond midnight, when, after bungling efforts to render aid to his victim, defendant caused their fourteen year old daughter--except for him the only surviving witness to the tragic occurrence--to call a physician who arrived at 1:30 o'clock a. m. Mrs. Townsend was then dead. That the deceased engaged in recurrent verbal clashes with defendant until near the end, when she became dazed, seems certain from the evidence, as does the fact that she participated unequally in the physical strife for at least a portion of the period, but whether such was done offensively or defensively is shadowed in doubt. None of the evidence, including the sordid story of defendant, tends to excite sympathy for him, beyond such compassion as naturally may be felt for one who must be burdened with the pangs of an agonized soul as the result of his conduct. Nevertheless, under the beneficent principles of our law, he was entitled to a fair trial upon the law and evidence. In our opinion such clearly was denied him by certain fatally defective pronouncements in Instruction No. 11 intended to state the law pertaining to the degree of a murder accomplished by means of torture, made operative prejudicially by the directions incorporated therein, and in Instruction No. 12. By other appropriate instructions the court informed the jury that dependent upon its view of the facts, it might acquit defendant or find him guilty of either murder in the first or second degree, or of voluntary or involuntary manslaughter, and in ordinary and accepted form, without objection by defendant and at his solicitation with respect to the lesser degrees, the court bespoke the standard ingredients of such offenses and the legal features distinguishing them. In addition to the instructions of the foregoing type, under the belief that the evidence brought the case within the purview of the clause of section 32, chapter 48, '35 C.S.A., which provides, inter alia, that all murder which shall be perpetrated by means of torture or by poison or lying in wait, shall be deemed murder of the first degree, the court, over the objection of defendant, by Instruction No. 11, informed the jury that:
Instruction No. 12 charged the jury as follows:
'Although you may believe from the evidence that the defendant at the time of the commission of the alleged crime did not intend to kill the deceased, or although you may entertain a reasonable doubt of such intent, nevertheless, if you believe from all the evidence beyond a reasonable doubt that the defendant at the time of the commission of said alleged crime was sane, and now is sane, and also believe beyond a reasonable doubt that the deceased came to her death by means of malicious and premeditated torture inflicted by the defendant, as 'torture' is elsewhere herein defined, the defendant would be guilty of murder of the first degree, even though he did not at the time of the commission of said alleged crime intend to kill the deceased.'
The evidence purpose of section 32, supra, was to proclaim that where a person is killed by another in the perpetration of torture, intentionally and unlawfully inflicted, such premeditated intent to inflict torture is by implication of law, transferred therefrom to the homicide actually committed so as to make the latter offense an unlawful taking of life with express malice aforethought and thus murder in the first degree, as is declared therein. In such case the turpitude of the act of torture supplies the place of deliberate and premeditated malice, is its legal equivalent and the purpose to kill is conclusively presumed from the intention to perpetrate the torture unlawfully inflicted. People v. Murphy, 1 Cal.2d 37, 32 P.2d 635. As respectively pertaining to murder by means of poison and lying in wait associated in the class of murder by torture by section 32, supra, see Ehrhardt v. People, 51 Colo. 205, 117 P. 164. As to rule in killings in commission of felonies enumerated in section 32, supra, see Andrews v. People, 33 Colo. 193, 79 P. 1031, 108 Am.St.Rep. 76, and Leopold v. People, 105 Colo. 147, 95 P.2d 811. In this view Instruction No. 12 last above quoted, to the giving of which defendant did not object, is generally sound, provided the definition of 'torture' contained in Instruction No. 11, which expressly is made the criterion of applicability of No. 12, is legally sufficient and proper. Conversely, if the definition of 'torture' and the legal specifications of the conduct said to constitute such as contained in Instruction No. 11, as a matter of law was deficient and erroneous, both Instructions Nos. 11 and 12, ipso facto and immediately, under the gruesome facts of this case, would be transformed into terrible instruments of injustice permitting, if not impelling, a verdict of first degree murder without any requirement for consideration of, or finding by, the jury of any intent to kill, premeditation, deliberation and express malice on the part of the accused which otherwise would be essential prerequisites to a valid conviction for the degree of murder returned. For specifications of distinction between the degrees of murder in ordinary cases and the province of the jury in the resolution thereof, see Ingles v. People, 92...
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