Opinion
No. 15,609.
Decided January 14, 1946. Rehearing denied February 4, 1946.
Plaintiff in error was convicted of first degree murder.
Affirmed. On Application for Supersedeas.
1. CRIMINAL LAW — Witnesses — Examination — Appeal and Error. Limitation of the interrogation of a witness on re-direct examination does not constitute error where the subject of the examination is wholly immaterial and so entirely disconnected with any issue involved as to make prejudice impossible.
2. Trial — Evidence — Appeal and Error. An assignment of error based upon partial use of an extrajudicial statement of a witness for the people in a criminal case on her examination, overruled where, under the circumstances disclosed by the record, it appeared that the entire statement was subsequently offered in evidence and rejected on the objection of defendant's counsel.
3. Trial — Court Rulings — Presumption. Where the written extrajudicial statement of a witness does not appear in the record, it will be presumed on review that the trial court did not err in sustaining an objection to its admission in evidence.
4. Instructions — Appeal and Error. In a homicide case it is held, under the disclosed facts, that failure of the court to instruct the jury on first degree murder would have been gross error.
5. Instructions — Intent. In criminal cases, the giving of the usual instruction on intent is proper, but frequently, as in the instant case, unnecessary.
6. Instructions — Appeal and Error. Where the only proper objection to the giving of an instruction in a criminal case is not made, any other objection thereto is entitled to no consideration on review.
7. Instructions — Flight — Appeal and Error. An instruction on flight in a criminal case is rarely advisable and should never be given unless the peculiar facts of the case appear to make it essential; but if, in the instant case, defendant had reason to believe that he had committed a crime, that his identity was known, that his pursuit and apprehension would probably ensue, and that he fled or concealed himself for any length of time to frustrate his apprehension, an instruction on flight would be devoid of error.
Error to the District Court of the City and County of Denver, Hon. William A. Black, Judge.
Mr. MORTON M. DAVID, for plaintiff in error.
Mr. H. LAWRENCE HINKLEY, Attorney General, Mr. DUKE W. DUNBAR, Deputy, Mr. JAMES S. HENDERSON, Assistant, for the people.
PLAINTIFF in error, hereinafter referred to as defendant, was convicted of first degree murder and sentenced to life imprisonment. To review that judgment he prosecutes this writ and argues the following assignments: 1. Limitation of redirect examination of a witness. 2. Permitting partial use of the extrajudicial statement of a witness. 3. Instructing on first degree murder. 4. Instructing on intent. 5. Instructing on flight. Other assignments, not argued, deserve no notice and it is doubtful if any of the foregoing do, save the last.
Some time after midnight a social gathering, held at the residence of one Ridge, dissolved. All the participants, including defendant and his victim Hicks and their wives, were negroes. Some intoxicating liquor had been consumed and there was evidence that one of the participants was "uproariously drunk." The tongues of others were sufficiently loosened that they freely discussed charges involving the conduct of Hicks and defendant's wife. As a result the latter was among the first to leave the house and sat in defendant's car near by. Some ten feet in its rear stood the car of Hicks, now occupied by his wife and two of her friends. The current scandal had been mentioned inside by defendant and Hicks and the former testified that the latter agreed to "apologize" to Mrs. Robinson. In any event the two men came out together. Hicks took the driver's seat in his car the door of which was closed and the window down. Defendant approached his own car and then returned to that of Hicks who was preparing to depart. After a brief conversation held through the open window defendant took a pistol from his inside coat pocket. Very shortly its discharge followed whereupon Hicks scrambled out of his car on the right-hand side, passed around the rear and disappeared. It later developed that he went a short distance down an alley and fell dead. Defendant and his wife drove hastily to their home, taking therefrom and secreting in the home of a friend the young daughter (by a former marriage) of the wife. Approximately two hours after the shooting they arrived at police headquarters. In answer to inquiries there made defendant learned that Hicks was dead. Having identified himself as being in some way connected with the tragedy defendant was taken into custody. Later he was questioned and made a detailed statement which was written down but not signed, and his wife made a similar one which was. On the trial, defendant testified that when he came to the Hick's car he insisted on the promised apology whereupon Hicks, who was admittedly unarmed, seized him through the window and attempted to abstract his pistol. That to frustrate that attempt defendant himself took the weapon from his pocket. That while they were contending for its possession and both had hold of it, an accidental discharge occurred. However, he had prior thereto told his wife and others that he had fired high to frighten Hicks. Both theories seem refuted by the facts that the bullet went straight through the victim's body transversly, entering the left arm pit and out the right side, and that there were no powder burns on his clothing.
1. The redirect examination, unduly limited as contended, was that of defendant's wife and related to her activity as a newspaper correspondent. This, like much examination and cross-examination as to whether she was white or colored, was wholly immaterial and so entirely disconnected with any issue in the case as to make prejudice impossible.
[2, 3] 2. The statement referred to was that made by defendant's wife at the police department. In cross-examination she was interrogated as to portions thereof clearly contradictory of, or inconsistent with, testimony given by her on the stand. Of course the district attorney was not obliged to put in what might have been self-serving declarations in order to show contradictions on material matters. However, it is a complete answer to the assignment that the record shows the offer by the district attorney of the entire statement and its rejection by the court on the objection of counsel for defendant. It is not in the record hence all presumptions favor the ruling.
3. The foregoing statement of facts demonstrates that failure to instruct on first degree murder would have been gross error. It is asserted that malice and premeditation are not shown. If the rather fantastic theory of the defendant be discarded — and under the evidence the jury was entitled to discard it — the only choice remaining is between malice and premeditation on the one hand and a miracle on the other.
4. The instruction here complained of was for all practical purposes the usual stock instruction on intent, always proper in cases such as this but frequently, as here, unnecessary.
[6, 7] 5. Instruction No. 23 reads as follows: "If you find from the evidence beyond a reasonable doubt that the crime charged in the information was committed by some person, and that immediately after such crime was committed the defendant fled, such flight would be a circumstance, not sufficient in itself to establish the guilt of the defendant, but a circumstance which you may consider, in connection with all the other facts and circumstances proven at the trial, in determining the question of the guilt or innocence of the defendant. It is for you to determine from the evidence whether such flight was caused by a consciousness of guilt or by some other and innocent motive."
The objection made to this instruction was as follows: "Defendant objects to instruction No. 23 on flight on the ground that the evidence shows that the defendant went to the police headquarters and surrendered; that the defendant had surrendered prior to the time of the arrival of the officers at the police headquarters with the witnesses in said cause; and, under the conditions, the same is incompetent, irrelevant and immaterial and highly prejudicial to the defendant." It should here be observed that instruction No. 23 is clearly taken from a case in which the identity of the perpetrator was in question, hence that portion of the instruction was inapplicable, but wholly immaterial and entirely without prejudice since here, if a crime was committed, the identity of the perpetrator was unquestioned. If there was evidence of flight the remainder of the instruction was proper. The fact that defendant surrendered was, under the circumstances, wholly immaterial. Such a surrender often takes place after flight and concealment. It will thus be observed that the only proper objection to the instruction was not made, hence, under a well established rule, the objection that was made is entitled to no consideration. We elect however to examine the propriety of this instruction under the undisputed facts of the case.
It may here, however, be further observed that, according to reason and the best considered authorities, such an instruction is rarely advisable and should never be given unless the peculiar facts of the case appear to make it essential. It generally impinges upon the rule that particular portions of the evidence should not be singled out and emphasized by special instructions. Again, most of the authorities which assume to enumerate the essentials of this element are based upon the peculiar facts of a given case and may not be taken as generally applicable to all. If, in the instant case, defendant had reason to believe that he had committed a crime, that his identity was known, that his pursuit and apprehension would probably ensue, and that he fled or concealed himself for any length of time to frustrate his apprehension, an instruction on flight would be devoid of error. What were the facts and what was the jury entitled to believe from the evidence?
From the course of the bullet the jury could well conclude that defendant shot straight at his victim with felonious intent. The absence of powder burns and the course of the bullet as above mentioned refute his story of a struggle and a shot fired at close contact. His story that the concealment of his wife's daughter was to prevent her harm or entanglement with the police, tends to refute his claim of an accident. His statement to his wife and others that he fired high to frighten Hicks does not square with the facts. The friend with whom the daughter was left and his own wife both advised him against flight. Had he and his wife remained at their home the daughter would have been safe and he could easily have been located. From one to two hours elapsed between the time of the tragedy and his appearance at police headquarters. The evidence is that, during that time they drove "around and around"; that they drove "everywhere"; that they drove "around again," from all of which the jury was entitled to believe that he was for the time being concealing himself and contemplating absconding, and that he was finally persuaded to the contrary by the advice of his wife and friend. Had the officers been promptly advised of the tragedy and the identity of the defendant and gone to his home where they should have expected to find him, and where he would have been but for the facts above recited, they would not have been able to locate him and during that time at least he was concealing himself from pursuit. Add now to the evidence already recited the further facts that the explanation of defendant and his wife as to how he happened to be armed is unconvincing, as is the further fact that Hicks was trying to take from him a weapon of whose presence he could have had no knowledge; that as defendant and his wife were driving about the city they discussed the trouble they were in, including their recent purchase of a home whose security seemed now imperiled, and the jurors were clearly entitled to believe that defendant knew he had committed a felony and was certain to be called to account. Under all these circumstances, and even assuming that there was a valid objection to instruction No. 23, the material portion of it, and the only portion having any application to the controversy, was clearly proper.
Of the many authorities cited by counsel we refer to none. Those applicable are not contrary to the foregoing. Others are clearly inapplicable because of divergent facts. The general principles relied upon herein are well recognized and undisputed. Any attempt to diagnose the adjudicated cases and reconcile and apply them would be but a waste of time and of no assistance to the profession. Under the undisputed evidence this defendant was clearly guilty of a first degree murder. His defense of an accident is, in the light of unquestioned circumstances, flimsy and unbelievable.
Finding no reversible error in the record the judgment is affirmed.
MR. CHIEF JUSTICE KNOUS, MR. JUSTICE HILLIARD and MR. JUSTICE ALTER dissent.