Walker v. People

• Citation: 248 P.2d 287,126 Colo. 135
• Decision Date: 24 July 1952
• Docket Number: No. 16519,16519
• Parties: WALKER v. PEOPLE.
• Court: Supreme Court of Colorado

Page 287

248 P.2d 287

126 Colo. 135

WALKER v. PEOPLE.

No. 16519.

Supreme Court of Colorado, en Banc.

July 24, 1952.

Paul A. Ruston, James T. Burke, Isaac Mellman, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

CLARK, Justice.

Defendant, Joe Sam Walker, charged by information with murder in the first degree, upon trial, was convicted of second degree murder.

At the beginning of the fall term of 1948 Theresa Foster enrolled in the freshman class in the engineering school of the University of Colorado at Boulder. Prior to her coming to college she had resided with her parents on a farm near Greeley, Colorado. She was in the eighteenth year of her life, a well-knit, vigorous young woman, about sixty-four inches in height, weighing about 130 pounds, and by reason of her outdoor farm life probably of better than average strength and vitality. She had been reared in a religious atmosphere and was quiet and unassuming in her demeanor. She is said to have had a steady attachment for a certain young man who resided at a considerable distance from Boulder, and otherwise was not known to have had any dates. Upon coming to Boulder to enter the university, arrangements were made for her to live at the home of Dr. and Mrs. N. G. Messenheimer where she was to work part time as a domestic as consideration for her board and room.

On the evening of November 9, 1948, Miss Foster left the Messenheimer home and went to the Newman Club, a Catholic organization, to study with a tutor pursuant to previous arrangements. She was dressed in blue slacks, a gabardine jacket, and wore a white scarf over her head. She arrived at the Newman Club about 7:00 o'clock p. m., and left there alone about 10:00 o'clock that evening, carrying her school books. Failing to arrive home that night, her disappearance was reported by the Messenheimers very early in the morning of November 10th to Father Forsythe, who was in charge of the Newman Club, and also to the police department. Later report report was made by the police department to the sheriff's office, and a search was instituted for Miss Foster. On the morning of November 11th between 10:30 and 11:00 o'clock, two rabbit hunters, not knowing of the disappearance of Miss Foster, came upon her dead body lying in the bottom of a ravine or ditch under the edge of a bridge crossing the same, some miles south of the City of Boulder on the Boulder-Golden highway. Report was promptly made to the sheriff's office. The upper clothing of the dead girl was up around her shoulders and neck, the lower part of her body being naked except for her shoes and anklets. In close proximity to the body on the floor of the ravine were also found her blue slacks and panties. Cursory examination disclosed that she had been the victim of a vicious attack, and had been subjected to a terrific beating. Her hair, head and upper clothing were blood-soaked and her face and the backs of her hands were scratched and lacerated, the skin containing many small particles of gravel indicating that these portions of the body had been ground into a gravelled surface or dragged or moved across such a terrain. An autopsy performed on the body later that day further disclosed that the skull was a mass of bruises and cuts, particularly toward the back of the head. There was gravel in the mouth and in the nose. Externally the skull showed fifteen different cuts, and upon being reflected, the skull likewise showed numerous bruises and three depressed fractures. The brain also showed extensive bruises and considerable hemorrhage. An irregular bruised outline appeared over the front and side of the neck, and the hyoid bone on the right side was broken, accompanied by some hemorrhage. The cause of death, in the opinion of Dr. Lapi, who performed the autopsy, was given as strangulation. He further testified that in his opinion, following actual strangulation and death, severe pressure was continued to be applied for some considerable time, and that death by strangulation had resulted quickly due to loss of blood and other injuries previously sustained. There also was evidence indicative that rape had been accomplished.

On the morning of November 10th, before the sheriff's office had been advised of Miss Foster's disappearance, certain members of the sheriff's staff were called out on what is known as the Lee Hill road, north of Boulder, to investigate splotches of blood found there earlier that morning by Mr. Hummel and Mr. Wells, who were suspicious of some one having butchered one of Mr. Hummel's cattle. At this point and in the proximate vicinity of the blood spots at the side of the road, there was found that morning a cartridge clip, a safety latch, and a portion of the wooden grip from a 45 automatic pistol; also, a flash light which was slightly blood stained, and a bloody scarf, later identified as that worn by Miss Foster on the fateful night preceding. Three days later, near the same spot, there were found Miss Foster's glasses, a crescent wrench, on the threads of which were found fibers similar to those of Miss Foster's scarf, and some short lengths of folded bloody rope with hair attached to the dried blood.

On November 20th, the sheriff's office, having received information that defendant was in the habit of carrying a 45 automatic pistol in his car, officers went to his home at Eldorado Springs on a routine check. The Walkers were not at home, but when returning to Boulder the officers met them on the road, and there talked with defendant briefly; at that time he told the officers that he had borrowed such a gun from his brother-in-law, and that he had been in the habit of carrying it in the glove compartment of his car, but that he had sold the gun on November 5th to a man whom he did not know. Defendant was arrested on the following day, and upon being questioned by the officers at the county jail that evening, he denied having had any connection with the death of Miss Foster, claiming that he did not know and had never seen her. He again repeated the story about selling the gun belonging to his brother-in-law.

At the time of his arrest defendant was suffering from two head wounds, the most serious of which was toward the back of his head and had become infected. He explained these wounds resulted from a fall he incurred in crossing the creek near his home some time previous. On November 22nd, two of Miss Foster's school books were found near the Coal Creek road, a short distance from the bridge where her body had been recovered. Some further details having developed were called to the defendant's attention, but he still insisted that he had sold the gun as he had previously stated. On November 23rd the gun itself was found in the vicinity in which the school books had been discovered, and was identified by defendant's brother-in-law as being the gun owned by him and which he had loaned to defendant.

After being informed of the recovery and identification of the gun, defendant stated that he was ready to make further disclosures and during the evening of the 23rd his statement was taken in shorthand, later transcribed, and, after his making one or two minor corrections, it was subscribed by him on November 26th in the presence of officers. This statement, as People's Exhibit SS, is hereafter further discussed. Therein defendant admits that his previous story about the sale of the gun to a stranger was untrue, and was designed to conceal the fact that he had had the gun in his possession on November 9th. He also admitted that he induced his wife, on November 11th, to send his brother-in-law a check purportedly in payment for the gun and to date the check November 6th. Further, and more important, he admitted that he did know about occurrences in connection with the death of Theresa Foster. He told a story about having stopped at a stop light at a street intersection in Boulder and there being accosted by a young man who later introduced himself as 'Doug', who asked him to take him and his young lady companion down town. Thereupon the young folks got in defendant's car; 'Doug' introduced his friend as 'Hunkie', whom he later learned to have been Theresa Foster. He stated that the young man was drinking and that he had 'Doug' had several drinks of whiskey during the course of the ride. They drove out on the Lee Hill road where 'Doug' insisted on taking over the the driving. An argument ensued; he then drove out on the side of the road, stopped the car and got out; whereupon, 'Doug' followed him immediately and hit him over the head with the gun which he had taken from the glove compartment. According to defendant's statement, a terrific battle ensued during the course of which he was rendered unconscious. When he came to, 'Doug' had disappeared. He discovered the practically nude body of the girl in the trunk of his car with the feet protruding. The car keys, which he had extracted from the lock as he stepped out of the car and placed in his pocket, he found in the lock on the lid to the trunk of the car. In making this statement, he admitted that the story he had previously told the officers in getting the wounds on his head by falling into the creek was false, and that he actually had received them during his fight with 'Doug.' He stated that he was confused and scared upon finding the body of the dead girl in the trunk of his car, and thereupon he chucked the feet inside and started towards home, going through the town of Boulder by a circuitous route, and admits throwing the body over the railing of the bridge into the ravine where it was found as hereinabove mentioned. The statement continues about the manner in which he disposed of certain other articles, including Miss Foster's clip board with papers attached, and about how he found the gun on the shield on the inside of the rear bumper of...