Van Wyk v. People
| Decision Date | 04 January 1909 |
| Citation | 99 P. 1009,45 Colo. 1 |
| Parties | VAN WYK v. PEOPLE. |
| Court | Colorado Supreme Court |
Error to District Court, Logan County; H. P. Burke, Judge.
Gerrit J. Van Wyk was convicted of murder in the first degree, and he brings error. Affirmed.
[45 Colo. 3] R. D. Rees, Munson & Munson, and Isaac Pelton, for plaintiff in error.
Wm. H Dickson, Atty. Gen., and Samuel Huston Thompson, Asst. Atty Gen. (Ralph Talbot, of counsel), for the People.
The information is in three counts, and charges in the first the plaintiff in error and Woutherje Van Wyk jointly with the crime of murder; the second count charges the plaintiff in error as principal and Woutherje Van Wyk as accessory; the third count charges Woutherje Van Wyk, the wife of plaintiff in error, as principal, and the plaintiff in error as accessory. The trial resulted in the conviction of plaintiff in error of murder in the first degree, and the acquittal of Woutherje Van Wyk. The case is brought here for review on writ of error, and the plaintiff assigns as grounds for the reversal of the judgment: First, the insufficiency of the evidence; second, error in the admission and rejection of testimony; third, error in the giving and in the refusing of instructions; fourth, the misconduct of counsel for the people
On December 31, 1905, the dead body of Gerritje Haast was discovered in her dugout on her homestead in Yuma county. A bullet hole was found in the right side of the head. The bedclothing had been drawn over the body and over the head. The body lay on its left side, and the arms were across the breast and under the covers. A revolver was found between the two upper covers of the bed. The body was frozen. On a table was found a bottle of ink, a pen and holder, and, in an empty can, a manuscript written by the deceased, in the following words:
The pistol and the ink bottle were identified as the property of the Van Wyks. There was no direct proof connecting the defendants with the commission of the offense, the state relying wholly upon circumstantial evidence. We shall postpone a consideration of the assignments which relate to the insufficiency of the evidence until after we shall have determined the other questions.
Assignment No. 5 relates to the alleged refusal of the court to permit counsel for the defense to lay the foundation for impeachment. The objection to the question upon the ground that it was not proper cross-examination was sustained. Counsel does not show by reference to the transcript that the question was proper upon cross-examination, and we shall presume that the court properly sustained the objection.
Assignments 8, 9, and 10 relate to the alleged error of the court in admitting evidence concerning the property of the defendant Gerrit Van Wyk. The prosecution showed that the defendants had applied for insurance upon the life of Gerritje Haast, and, although some of the applications had been rejected, they had succeeded in obtaining policies in the amount of $8,000, in which Mrs. Van Wyk is named as beneficiary. They had obtained, within a few weeks, policies aggregating $18,000, and had obligated themselves to pay premiums amounting to about $800. The theory of the prosecution was that the defendants had deliberately planned the murder, and had induced Gerritje Haast to have her life insured for the benefit of Mrs. Van Wyk. It was relevant under that theory to show that the defendants were impecunious and probably not able to pay the premium. This, when coupled with the proof that the death occurred within a month or two after the policies were issued, and that notes were given for a large portion of the first year's premium, tended to establish a motive for the murder, and we are of the opinion that no error was committed in receiving the testimony. The fact that the earning capacity of these people was little in excess of the amount of the premiums on the various insurance policies was a fact the jury was entitled to consider.
Assignment 14 relates to the testimony of the witness Ball. He was permitted to testify, over the objection of the defendants, that he had rented land of the Van Wyks, that the house in which he lived as a renter from the Van Wyks was taken down and rebuilt upon the Haast homestead, and that the door of the Van Wyk house was used in the house on the Haast homestead. In receiving this testimony the court did not err. On the day the body was found, Mrs. Van Wyk asked Mr. and Mrs. Ball to accompany her to the Haast shack, stating that she had tried the door and could not open it. It was entirely competent to show, as tending to prove the falsity of her statement, that she had lived in the house and knew how to enter.
Assignment No. 17 relates to the testimony of witnesses in which they gave the results of experiments at the Haast shack after the body was removed. They placed articles of furniture in the places where they were when the body was found, and then, from the outside, looked through a small window for the purpose of ascertaining just what could be seen. The state, by these witnesses, sought to disprove the statements of Mrs. Van Wyk, and it was, in our opinion, entirely proper.
Assignments 19 to 25 relate to the testimony of the witness Tuomey. It was sought by this witness to show the temperature at Wray, a distance of about 20 miles from the Haast shack. The witness qualified as an expert. He was a volunteer of the government weather bureau, and kept records of the maximum and minimum temperature at Wray. This testimony was offered in support of the state's theory that the ink in the bottle found on the table in the Haast shack was placed there by the Van Wyks, or one of them, after the murder; also to show the time when Gerritje Haast died. For these purposes we think the testimony was competent. It was not, perhaps, of great value, but its weight was for the jury to determine. At first the court was inclined to exclude it, but upon the statement of counsel that the witness was called out of the regular order, and that other testimony would be offered, the court admitted the testimony. The court having permitted the testimony to be received with the understanding that it would be stricken on motion unless by other testimony its relevancy was shown, it became the duty of counsel for the defendants to move to strike the testimony if the state, at the close of the case, failed to meet the requirements of the court; but our attention is not directed to any such motion. We are not willing, however, to rest the ruling upon the mere omission of counsel. We regard the testimony as relevant and corroborative, and we are of opinion that no error was committed in its reception.
Assignments 26 to 34 have reference to certain rulings of the court in receiving the testimony of the witness Beggs. The witness showed his qualification as an expert, and was permitted to answer certain hypothetical questions, and permitted to state when, in his opinion, Gerritje Haast died, and how long, in his opinion, after the shot that killed her was fired, rigor mortis set in; and other matters proper for opinion evidence. It is stated in the brief that the hypothetical question propounded to Dr. Beggs was not based upon the evidence. We shall consider this objection in so far as it specifically points out in the brief wherein it is alleged that the question is not based upon the evidence. It is said that Dr. Beggs based his opinion as to when the woman died upon the statement contained in the hypothetical question that there was putrefaction in the bowels. There was sufficient testimony upon which to base the hypothetical question, and no prejudice could have resulted to the defendant from the answer, because, upon cross-examination, the witness very particularly stated that if putrefaction was not present his answer would be modified, and that he based his answer upon the assumption that there was putrefaction.
Assignments 37 and 38 allege error in the refusal of the court to permit certain questions to be propounded to the witness Cloyd. It is said that the court unduly limited the defendants' counsel in the cross-examination of this witness. The objection to the question was that it was not proper cross-examination. There is great discretion vested in the trial court in limiting the cross-examination of witnesses, and, as counsel has not referred us to testimony of this witness showing where his answers to interrogatories in direct examination warranted the questions propounded on cross-examination, we shall not search the record for the purpose of ascertaining the full scope of his direct examination, and shall assume that the objection was properly sustained.
A witness, an agent of the insurance company, stated that he was present when Mrs. Van Wyk and Gerritje Haast applied for policies of insurance. He was asked to state the conversation between him and Mrs. Van Wyk, and, over objection, he was permitted to state the question propounded and the answer given. As Gerritje Haast could not understand the English language, the answers were given by Mrs. Van Wyk. The objection to the examination was that the written application was the best evidence, and the overruling of this objection is the ground of assignments 48 to 52. No effort was shown to have been made to produce the written application. The purpose was to show that Mrs. Van Wyk made false statements for the purpose of obtaining a policy on the life of Gerritje Haast. The witness did not undertake to state the contents of a written...
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