Wechter v. People
| Decision Date | 06 May 1912 |
| Citation | 53 Colo. 89,124 P. 183 |
| Parties | WECHTER v. PEOPLE. |
| Court | Colorado Supreme Court |
On Petition for Rehearing, June 3, 1912.
Error from District Court; City and County of Denver; Carlton M Bliss, Judge.
Louis M. Wechter was convicted of murder in the first degree, and he brings error. Affirmed.
H. E. Luthe, of Denver, for appellant.
Benjamin Griffith, Atty. Gen., and Theo. M. Stuart, Jr., asst. Atty Gen., for the People.
Plaintiff in error, defendant below, was convicted of the crime of murder in the first degree. The jury fixed the penalty at death, and the court pronounced sentence accordingly.
At the trial, the defendant requested the court to instruct the jury that, if they found him guilty of homicide committed in the perpetration, or attempted perpetration, of robbery, and not by a deliberate act of homicide, they should find him guilty of murder in the first degree; but in such case their verdict would stand upon circumstantial evidence, and they could not fix the penalty at death. This request was refused, and the court instructed the jury to the effect that, in case they found the defendant guilty of murder in the first degree, they should, in their verdict, fix the penalty to be suffered by the defendant either at imprisonment for life, at hard labor in the penitentiary, or at death.
The statute on the subject of penalty for murder (section 1624, Rev. Stats. 1908) provides:
The theory of the prosecution was that defendant committed the murder of which he was convicted in an attempt to commit the crime of robbery, or that the killing was willful, deliberate, and premeditated. The jury did not designate upon which phase of the case they arrived at their verdict. Counsel for defendant contends that there is no direct proof of the intent of the defendant to commit robbery; that proof of his intent on this subject is circumstantial, and hence argues that under our statute the death penalty cannot be inflicted. For this reason, it is urged the court erred in refusing the instruction requested, and giving the one it did, as the jury should have been instructed upon each phase of the case, and advised that if the verdict was based upon homicide committed in committing, or attempting to commit, a robbery the death penalty could not be inflicted.
In brief, the testimony on the part of the people was as follows: W. Clifford Burrowes was the person killed. He was shot by the defendant in the White House Café, which is located in the city of Denver. It closes each evening at 8 o'clock, and is managed by Mrs. Hoff and her son-in-law and daughter, Mr. and Mrs. Schroeder. Shortly before 8 o'clock on the evening deceased was shot, Mrs. Schroeder was counting the receipts of the cash register, preparatory to closing, The register was on a counter, about 10 feet from the front door. Deceased had just finished a meal, and was sitting on a settee, talking with Mrs. Schroeder. At this time, the defendant entered the café by the front door, with a revolver in his hand, and a large handkerchief hanging loosely around his neck. He closed the door, took a step forward, glanced hastily towards the rear of the room, raised the handkerchief over his face, covering all but his eyes, and turned facing the deceased and Mrs. Schroeder. Burrowes arose, and defendant ordered him to throw up his hands and get behind the counter. Burrowes replied, 'No, I will not do it,' when defendant discharged his revolver at him, inflicting a wound from which Burrowes died the next morning. Mrs. Schroeder and her mother rushed to the aid of Burrowes, seized the defendant, and, with the assistance of a customer and male help from the kitchen, held him captive until the arrival of the police.
Mrs. Hoff testified that she had noticed the defendant the evening before, shortly before 8 o'clock, looking into the restaurant, in range with the cash register. Defendant testified at the trial. He admitted the shooting, and his defense was the motive with which he entered the café, his claim being that he had entered to collect a sum of money he had delivered to a young woman who, he thought, was dining there with a male escort: that he carried the gun to frighten the escort, or to use, in case he attacked him; that deceased grapplied with him as soon as he entered; and that during the struggle the revolver was discharged, which was caused by Burrowes seizing the defendant's hand in which he held the revolver, and gripping it so firmly that it caused its discharge. He denied that he had any intention of robbing the café, or any one in it.
It is on this testimony that counsel for the defendant bases his contention that the court erred in the particulars under consideration. His claim is that, there being no testimony that defendant demanded money, and no taking of money, or attempt to take it by force on his part, his intent in these respects can only be determined from the other facts detailed, which, at most, are only sufficient from which the inference might be drawn that his intent was to rob; but, there being no direct proof of such intent, the testimony from which the inference of his intent could be drawn is circumstantial.
To what extent our statute inhibits the infliction of the death penalty, where the verdict is based upon circumstantial evidence (that is, whether it applies to a case where some of the material facts are established by circumstantial evidence only, or where proof of the material facts depends upon circumstantial evidence alone), we need not determine, as the only question we need consider at this time is whether the testimony on the subject of the intent of the defendant to rob is circumstantial. We do not think it is.
The testimony of eyewitnesses, detailing the acts of the defendant, is certainly direct evidence; and the inference which can logically be drawn from such testimony is not circumstantial, but is based upon direct proof. Intent is a question of fact, provable like any other fact in issue in a criminal case. Here we have the testimony of eyewitnesses to the effect that defendant entered the café with a revolver in his hand, with a handkerchief about his neck, just before closing time, when one of the persons in charge is counting the cash, looked about the room, masked with the handkerchief about his neck, and, when confronted by deceased, ordered him to throw up his hands and get behind the counter, where the cash is being counted, and when he refuses inflicts a mortal wound. We think this direct evidence is sufficient to establish an intent to rob, and that proof of such intent, from the facts narrated, does not in any sense rest upon what is termed circumstantial evidence. In other words, as applied to the case at bar, the testimony of eyewitnesses detailing the physical acts of one accused of a crime, which tend to prove the motive or intent of the accused in committing them, is direct proof of such motive or intent, and not circumstantial evidence.
Intent is an act or purpose of the mind rarely discoverable, except by the acts of the person committing them; consequently acts which tend to prove a specific intent are direct evidence of that intent. Our Criminal Code recognizes this to be the rule in prescribing how intent may be proved. It provides: 'Intention is manifested by the circumstances connected with the perpetration of the offense, and the sound mind and discretion of the person accused.' Section 1609, Rev. Stats. 1908.
The next proposition urged upon our attention by counsel for defendant is the alleged misconduct of the representatives of the district attorney in arguing the case to the jury. It is unfortunate that questions of this character reach this court from time to time. We have frequently taken occasion to caution district attorneys against indulging in argument calculated to prejudice a defendant on trial before a jury and in several instances have been compelled to reverse cases because of such conduct. District attorneys ought to realize that their duty on argument is confined to matters within the record, or fairly deducible therefrom; and that when they travel outside this path they not only undertake to do...
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