Wright v. People, 15525.

Docket Nº15525.
Citation115 Colo. 247, 171 P.2d 990
Case DateAugust 05, 1946
CourtSupreme Court of Colorado

171 P.2d 990

115 Colo. 247


No. 15525.

Supreme Court of Colorado, en Banc.

August 5, 1946

Error to District Court, City and County of Denver; William A. Black, Judge.

Gordon Wright was convicted of murder in the first degree, and he brings error.

Judgment reversed and cause remanded for a new trial.

HILLIARD, J., dissenting in part.

Where, at time of trial of defendant for murder, an instruction was given which was reversible error according to a prior decision of the Supreme Court, conviction would be reversed and cause remanded for a retrial though Supreme Court determined that such decision was erroneous and overruled it.

[115 Colo. 248] Isaac Mellman, of Denver, for plaintiff in error.

[115 Colo. 249] H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.

STONE, Justice.

Defendant below was convicted of murder in the first degree and his punishment fixed at death. His assignments of error are grouped under eight points.

The first assignment is that the verdict is contrary to the evidence in that there is no disclosure of malice, premeditation or deliberation; the second, that the corpus delicti was not proven by competent evidence; the sixth that there was error in instructing on first degree murder because there was no evidence to justify such [171 P.2d 991] instruction, and the seventh that there was error in instructing on second degree murder because there was no evidence to justify such instruction. These four objections all go to the sufficiency of the evidence.

By defendant's own testimony it appears that he and Alberta, the deceased, had lived together as husband and wife for a number of years. For some months defendant's father lived with them and occupied their bedroom while they slept on the porch. Defendant spent his earnings gambling and Alberta objected to it. In June, 1943, defendant found a package of affectionately-worded letters which she had received from a man friend in the armed service and blacked her eyes, and in September, without telling him of her intentions, she left him and went to Texas, taking a number of article, some of which he claimed were his, and leaving a note saying she was sorry to have to do it. Later there was correspondence between them and there appeared to be progress in patching up their affairs. On November 7, 1943, he learned that she was back in Denver at a friend's house and went over to see her but she repulsed [115 Colo. 250] his advances. The next morning he secretly took a gun and some cartridges from his employer's desk, went home and loaded the gun and it went off accidentally while he was experimenting with it in his room. Then he put the gun down in his trousers under his belt and went to the home where Alberta was staying. Finding that she had gone to a funeral he went in her room, ransacked her trunk and bureau, broke a jar and took from it her money, together with some insurance policies, and wrote a note, which after her death he tore up and threw in the toilet bowl. The rescued portion of this note said, 'her to the last. I will tell all later.' Upon Alberta's return home she saw he had the pistol and cried out to a friend, Mrs. Datts, who roomed upstairs, to call the police; then she tried to hold defendant's arms but let go when Mrs. Datts came down and the three of them talked together briefly whereafter Alberta went in the bathroom and defendant followed immediately behind her and bolted the door. Before they entered the bathroom he took the pistol out and held it in his hand. Then, according to his testimony at the trial she started running towards him in the bathroom, he stepped back and struck against the wall and the pistol went off, shooting her through the heart.

Captain of Detectives Childers testified to three different statements, all inconsistent with his testimony at the trial, made by defendant when questioned at different times regarding the shooting.

Three witnesses testified to defendant's threats shortly Before the shooting, that he was going to kill Alberta, and his aunt-in-law testified that he told her, 'Aunt Anne, I am not going to promise you that I am not going to do anything to her'; that he showed her the letters that Alberta had received from her soldier friend and said, 'I am going to read them over and over again to harden my heart against her.'

The question of the sufficiency of the evidence was for the jury and that evidence as hereinabove [115 Colo. 251] briefly summarized, if believed by the jury, established sufficiently the existence of a criminal agency as the cause of death, and supported inference and finding of malice, premeditation and deliberation so as to justify and require the giving of instructions on both second and first degree murder.

The third assignment predicated error on admitting Exhibit N, the packet of some fifty letters which deceased had received from her friend in the military service, as representing only one side of correspondence between deceased and a third person, and as being hearsay and too remote to establish motive. While defendant found the letters in June, his own testimony was that after he found the letters he left them with a friend for safe keeping until after Alberta went away in September, and that he then took the letters over to his aunt and read some of them to her. The aunt testified that when she urged him to destroy them, he declared his intention to read them over and over. Only six of them were read to the jury by the prosecution and defendant's counsel made no attempt to read others. [171 P.2d 992]

These letters were filled with terms of endearment. They referred to gifts to the writer from Alberta and to letters received from her, and one of them expressed the writer's hope that some day she would become his wife. The letters which were read tended to establish a cause for jealousy on the part of defendant and thus furnish a motive for the killing. They were not objectionable as being only 'one side' of the correspondence; they were not too remote; they were not prejudicial to defendant and they were properly admitted. Mathley v. Commonwealth, 120 Ky. 389, 86 S.W. 988.

The fourth point urged is that it was error for the court to refuse defendant the right to object to the admission in evidence of Exhibit N in the presence of the jury. If, as we have held, the court properly received Exhibit N, any objection to it was immaterial and not properly for consideration by the jury.

[115 Colo. 252] The fifth point urges error in admitting letters written by deceased to defendant while she was in Texas in September and October prior to her death November 8. Defendant himself supplied the remainder of the correspondence and introduced in evidence the letters he wrote her in reply. These letters were properly received to show existing relations and motive. The extent of the inquiry was largely within the discretion of the trial court, and no abuse of discretion appears.

The eighth and last point urged is that there was error in instructing the jury as follows:

'The defendant contends that the death of the deceased was by an accident or misadventure, and if you find from the evidence that the death of Alberta Wright was caused by an accident or misfortune, or entertain a reasonable doubt as to whether it was caused by an accident or misfortune as defined by these instructions, you shall find the defendant not guilty.'

No objection to or criticism of this instruction of any sort was made at the time it was given, and, where an instruction has been given by the trial court without objection by defendant's counsel, we should not reverse except for substantial likelihood that the jury may have been misled or confused thereby. Objection is now made on authority of McRae v. People, 101 Colo. 155, 71 P.2d 1042, that this instruction places the burden of proof on the defendant to establish facts that will justify his acquittal and requires doubt as to his innocence instead of his guilt, and that this constitutes reversible error even in the absence of objection below. The attorney general urges, if this be true, that we reconsider our pronouncement in the McRae case, and we so do.

The contention that this instruction erroneously requires doubt as to innocence when it should require doubt as to guilt poses a verbal rather than a real distinction. The jury had three possible alternatives as to the defense of misadventure or accident here instructed on. They might have found death caused by accident; they [115 Colo. 253] might...

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