Zancannelli v. People

• Decision Date: 04 June 1917
• Docket Number: 8712.
• Citation: 63 Colo. 252,165 P. 612
• Parties: ZANCANNELLI v. PEOPLE.
• Court: Colorado Supreme Court

165 P. 612

63 Colo. 252

ZANCANNELLI v. PEOPLE.

No. 8712.

Supreme Court of Colorado, En Banc.

June 4, 1917

Error to District Court, Las Animas County; Granby Hillyer, Judge.

Louis Zancannelli was convicted of murder, and he brings error. Reversed and remanded.

O. H. Dasher, of Trinidad, Fred W. Clark, of Greeley, and Horace N. Hawkins, of Denver, for plaintiff in error.

Leslie E. Hubbard, Atty. Gen., for the People.

PER CURIAM.

Zancannelli hereinafter referred to as defendant, was convicted upon the charge of having murdered one Belcher at the city of Trinidad, and sentenced to life imprisonment. He brings the cause here for review relying upon many alleged error.

The killing took place during the period of the recent industrial conflict in the coal fields between the owners of the coal mines and their employés, and was, the state claimed incident thereto. The Attorney General neither filed the information nor participated in the prosecution, and in this court has filed a confession of error. Ordinarily, under such circumstances, we would enter judgment of reversal without comment. The nature of the case, however, is such that we think a good purpose will be served by briefly stating the facts and commenting upon the same.

The deceased was a detective in the employ of the mine owners and the defendant was a striking coal miner, and an inmate of the temporary shelter of such miners known as 'the Ludlow Tent Colony.' The prosecution introduced evidence to the effect that the defendant had stated that he had killed the detective 'for the good of the union.' The defendant claimed, and offered to prove that several large coal mining companies operating in the district were actively interested in the prosecution, and at their request and employment the Hon. Jesse C. Northcutt appeared in the case and aided the district attorney. A petition, supported by affidavits, was filed by defendant alleging interest and prejudice on the part of A. W McHendrie, judge of the court, and asking that another judge be called in to try the case, which was sustained. Thereafter, by an act of the Legislature, an additional judge was provided for the district, and the Governor appointed the Hon. Granby Hillyer to the position, and a like petition for change of judge was filed against him. The petition was denied, and, upon trial, the jury failed to agree, and was discharged. Fifteen days thereafter the defendant was again placed on trial before Judge Hillyer, and was convicted, as hereinbefore stated.

The evidence on the part of the prosecution was to the effect that defendant had shot Belcher as charged in the information, while that on the part of defendant was to the contrary and tended to show that one of two other men, whom it was claimed had been seen fleeing from the place, was the guilty party, and that the arrest and prosecution of defendant was the result of mistaken identity. Several of the proposed jurors stated, upon examination by the prosecution, that they had formed, expressed, and then held, opinions concerning the guilt or innocence of the defendant; that such opinions and impressions were based upon hearsay, rumors, conversation with other persons, newspaper articles, etc.; but that notwithstanding such opinions they could give the defendant a fair and impartial trial according to the law as it should be given to them by the court under the evidence submitted in the case. Some of the proposed jurors stated that they had never formed or expressed any opinion concerning the case. Upon examination by the defense, each of the proposed jurors was asked the following question in words or substance:

'Can you start out on the trial of this case giving to the defendant the benefit of the legal rule that a defendant must be presumed to be innocent until he is proven to be guilty?'

To this question an objection was interposed by the prosecution, which, when propounded to those who had previously stated that they had not formed or expressed an opinion concerning the case, was overruled by the court, and they were required to answer; but when propounded to those who had stated they held opinions, or had formed or expressed opinions concerning the guilt or innocence of the defendant, the objection was sustained and the juror not permitted to answer. The defendant exhausted his peremptory challenges, and several of the veniremen, to whom the question was propounded and who were not permitted to answer, served as jurors in the case over the objection and exception of defendant. Substantially every question propounded by the defense to elicit the condition of mind of the jurors respecting the defendant, the parties to the prosecution, and the subject-matter of the action, was ruled out by the court as improper. As an example we set forth the following, to which the court sustained objections and refused to permit the jurors to answer, viz.:

'Have you any bias or prejudice touching the striking coal miners, either for or against them?'

'Have you taken an active part on either side of the recent coal strike?'

'Have you favored or advocated forcible deportation of the striking miners in this county?'

'As you sit there now, do you think you know what ought to be done in this case or what verdict ought to be rendered?'

'Have you ever talked with any one who was a mine guard, about the strike matters?'

'Have you any bias for, or prejudice against, an organization, without intimating which way, known as the United Mine Workers of America?'

'Are you a member of any organization that during the recent troubles advocated forcible deportation of miners?'

'In the recent coal miners' strike, which extended over a number of months, were you an active partisan on either side, or did you, like the ordinary citizen, take nothing but a passing interest in it?'

'Have you participated in any of the exchange of shots in any of the so-called battles which have occurred in this county during the existence of the strike?'

'Are you desirous of serving on this jury?'

'Have you read any of the literature sent out by the coal companies touching the Zancannelli case?' (Coupled with the offer, which was refused, to show that the coal companies had distributed literature which repeatedly stated, not only that the defendant was guilty, but that he had confessed guilt.)

'I assume, Mr. Moore, that living at Model there, you were not an active participant or partisan one way or another in the industrial struggle?'

'Have you had any part in the industrial conflict here in Colorado at all?'

'Did you act as a deputy sheriff to go out in the armored cars the Colorado Fuel & Iron Company had?'

'Do you know whether or not the coal companies were paying for your services there?' (This to a juror who said he was one of the so-called deputy sheriffs in the battles between miners and company men.)

'Do you know how the sheriff came to summon you, a man who had been in these battles, as a juror in this case?'

'From what you have heard and read of the account of the trial that was had here just a few days ago, do you feel that you know what verdict should have been rendered in the trial?'

'Is it or not true that you would dislike to decide a case contrary to what they [the coal companies hiring Judge Northcutt to prosecute] thought it ought to be decided?' (This to a juror who had said that his business associations with the coal companies would tend to bias him in his verdict, and who none the less was held by the court to be a competent juror when defendant's fifteen challenges had been exhausted. This juror was one of the jurors who, over defendant's protest, tried the case.)

'The law is, Mr. Hudson, that at the outset of a trial any defendant in a criminal case is in law presumed to be innocent, and it is the duty of the jurors to give to the defendant the benefit of that presumption of law, until, or unless, the evidence should show guilt beyond a reasonable doubt. Is your frame of mind such that you can start out on the trial of this cause giving to the defendant the benefit of that rule of law that he shall be presumed to be innocent until the contrary appears beyond a reasonable doubt?'

Some other questions which the court refused to permit defendant to ask of jurors and have the same answered are the following:

Of Juror Pittinger:

'Is not your frame of mind such that you would require this defendant to prove himself to be innocent of the crime?'

'Is it or not true that you now, looking at this defendant, regard him as a guilty man, and is not your frame of mind such that you can in no way give him the benefit of the presumption of innocence at the outset of the trial?' Of Juror Bramlett:

'Is your frame of mind such that you would require him to prove himself not guilty?'

The court would not permit jurors to answer the following:

'Do you understand what is meant by the presumption of innocence?'

'Do you believe in the doctrine of the presumption of innocence of the defendant?'

'If the evidence to your mind was evenly balanced as to guilt or innocence, which way would your verdict be?'

'Would you hesitate to return a verdict of not guilty if the evidence failed to convince you beyond a reasonable doubt that the man was guilty?'

Further illustrative of what took place in the impaneling of the jury, we note the following:

Juror Cherry, a Trinidad business man, in answer to the questions propounded by the district attorney, stated that he had an opinion and that the evidence would have to be clear before he could lay it aside. In answering questions propounded by defendant's counsel he stated:

That he had 'a pretty good idea what the facts are; that it would require clear and...