Wharton v. People, 14511.

• Court: Supreme Court of Colorado
• Citation: 90 P.2d 615,104 Colo. 260
• Docket Number: 14511.
• Parties: WHARTON v. PEOPLE.
• Decision Date: 08 May 1939

90 P.2d 615

104 Colo. 260

WHARTON v. PEOPLE.

No. 14511.

Supreme Court of Colorado, En Banc.

May 8, 1939

Error to District Court, El Paso County; John M. Meikle, Judge.

Norman W. Wharton was convicted of murder in the first degree, and he brings error.

Remanded with directions.

BOUCK J., dissenting.

C. H. Babcock and James F. Quine, Jr., both of Colorado Springs, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Henry E. Lutz, Asst. Atty. Gen for defendant in error.

OTTO BOCK, Justice.

Plaintiff in error, to whom reference is hereinafter made as defendant was convicted of murder in the first degree and sentenced to death.

The facts briefly stated are, that on the night of June 25, 1938, defendant, armed, entered one of the rooms of a hotel in Colorado Springs for the purpose of robbery and, when caught in the act, shot and killed one Latting, a house detective. He escaped that night, but a few days later was apprehended at Littleton, Colorado, and subsequently tried, with the result above announced.

All the medical experts testified defendant to be legally sane and diagnosed his condition as being one of constitutional psychopathic inferiority, a symptom of which is, that although those afflicted know the difference between right and wrong, they frequently are unable to restrain themselves from doing what they know to be wrong.

Numerous errors are assigned, but for our purposes only one set out in the motion for a new trial will be considered, namely: That the court committed error in refusing to inquire into the alleged improper conduct, threat, coercion and illegal actions of the members of the jury in arriving at a verdict as set forth in an affidavit by Juror Anderson.

Two days after the verdict was returned Anderson voluntarily went to defendant's counsel and executed an affidavit, which, omitting formal and immaterial matters, is as follows:

'That the said jury in the above entitled case retired for its deliberations at or about 6:30 o'clock P. M. on September 30, 1938; that thereafter various ballots were taken by the jury on each of which ballots your Affiant voted for a penalty of life imprisonment for the defendant, Norman W. Wharton, until through the efforts, coercion, improper language and demeanor of the other members of the jury, as hereinafter set forth, your Affiant was improperly coerced and compelled to acquiesce in the verdict and penalty of the other eleven persons purporting to constitute with Affiant a duly impaneled jury to try said cause; that said * * * jury were out approximately twenty-seven hours, and did not return into Court with a purported verdict until on or about 9:30 o'clock P. M. on October 1, 1938; that after retiring on the evening of September 30, 1938, the jury deliberated until on or about 1:30 o'clock A. M. on October 1, 1938; that for a period of time following the retirement of the purported jury the language and conduct of the other eleven purported jurors were argumentative, but peaceful; that as time went on and Affiant repeatedly refused to join in the penalty proposed to be inflicted by the other eleven purported jurors many of said jurors became abusive in their language, threatening in their manner, and coercive in their conduct; that said language, manner and conduct consisted of the following, to-wit: that accusations were made against Affiant of having been 'fixed' or 'bought off'; that accusations were made against Affiant of having perjured himself in stating on the voir dire examination of the jury that Affiant was not opposed to the death penalty; of cursing and swearing and using violent and profane language against Affiant and against defendant; * * * that said jurors continuously and repeatedly by means of persistent argument, abusive language and conduct, threatening manner, and scoffing and slurring remarks at Affiant, persistently following Affiant around the juryroom and would not give him an opportunity to rest for any short period of time, bending over Affiant and repeatedly brow-beating and haranguing Affiant with repetitions of the matters herein alleged; that Affiant would attempt to escape from said other eleven purported jurors and try to get a little rest apart to himself, but that said other eleven purported jurors would one or another be at Affiant repeatedly, arguing and brow-beating and forcing upon him arguments and abusive language and conduct; * * *.

'That after hours of the above repeated and continuous violent, abusive and profane language and conduct on the part of the said other eleven jurors to Affiant, Affiant became so physically weak and exhausted as to be unable to speak or argue without breaking down physically and crying and Affiant was unable to continually withstand the repeated assaults, pressure, * * * and conduct of the others in the juryroom, and the threats to physical combat made by some of the other eleven purported jurors, and Affiant, because of his said weakened physical condition and the long repeated pressure of * * * abusive epithets and conduct, as aforesaid, told said other eleven purported jurors that Affiant would let the penalty be entered on the verdict that the other eleven purported jurors wished, although Affiant at that time, and after having repeatedly told said other eleven purported jurors that it was not the penalty arrived at by Affiant in his mind from the evidence and laws given them, but that it was a mere acquiescence by Affiant to escape the continued pressure * * * exerted upon him, as aforesaid, and was not the result of the conviction in Affiant's own mind; that the verdict and penalty as returned by the purported jury in the above entitled case on the 1st day of October, 1938, was not the verdict and penalty of Affiant, but that at the time the jury was polled by the Clerk of the Court Affiant was in such a weakened physical condition and was so dominated by the other eleven purported jurors that Affiant was unable to entertain an independent and free will and was unable because of the fear of being returned to the juryroom for further deliberations, to state in Open Court that the verdict and penalty as read was not his verdict and penalty, although at the time he answered Affiant's mind was not so free from the coercive influence of the other eleven purported jurors as to be able to exercise his own free judgment and discretion;

* * *

* * *

'That on or about the 3rd day of October, 1938, the Monday morning following the entry of said purported verdict that Affiant of his own volition and voluntarily went to the offices of the attorneys for the defendant, and at that time told said attorneys the matters and things set forth in this affidavit, and that the verdict and penalty assessed by the purported jury was not the penalty that Affiant freely and voluntarily assented to; * * *.'

This affidavit was attached to and made a part of the motion for a new trial, and supported several of the grounds of that motion. No counter affidavits were filed by the district attorney, and nothing in the record here refutes the matters set forth in the affidavit. The district attorney objected to the reception and consideration of the affidavit, and although Anderson was present in court ready to testify, the court sustained the objections without inquiry into the facts.

Counsel for the people cite Boyles v. People, 90 Colo....