Mitchell v. People

PLAINTIFF in error, defendant below and hereinafter so designated, was tried for murder. The jury returned a verdict of guilty in the first degree and fixed the penalty at death. Sentence was pronounced accordingly. To review that judgment defendant prosecutes this writ.

Defendant and the wife of another man went to the place of one Sherie, near Denver. There the three drank and caroused, and defendant and the woman retired together. Later in the night the woman transferred her favors to Sherie. Thereupon defendant left the house, took the woman's clothes with him and concealed them, secured a pistol, and returned to the place and killed Sherie and his companion. He then sought the home of his divorced wife and told her what he had done. With his consent she sent for one Garberson, a minister of the gospel, and to him defendant likewise detailed the crime. These two then induced defendant to surrender and repeat his confession to the officers. It was taken down, transcribed, signed by defendant, and attested by four witnesses. On the trial, over objection, this document, Exhibit H, was put in evidence by the people. Over objection also the court gave instruction No. 12 authorizing the death penalty. Thus arise the two questions which alone require consideration here.

1. It is said that defendant was intoxicated when Exhibit H was taken and signed, and that he was not warned; hence the confession was not voluntary. The court heard conflicting evidence on this subject, in the absence of the jury, and held the confession voluntary. There is no evidence to support the claim of defendant's incapacity by reason of intoxication. The question was primarily one for the court. Fincher v. People, 26 Colo. 169, 173,56 P. 902. In the absence of a clear abuse of discretion that ruling will not be interfered with. No such abuse appears.

2. In a case of first degree murder the jury is required to fix the penalty at life imprisonment or death, but section 6665, C. L. 1921, provides that no person shall "suffer the death penalty who shall have been convicted on circumstantial evidence alone." Aside from these confessions, this conviction rests upon such evidence, and we have heretofore held evidence of an oral confession to be circumstantial evidence. Damas v. People, 62 Colo. 418, 163 P. 289, L.R.A. 1917D, 591. Hence it is contended instruction No. 12 was erroneous.

Assuming the correctness of the Damas decision we must of course reverse this judgment if it conflicts therewith. First directing our inquiry, therefore, to the existence of a distinction between the two, and adopting for that purpose the reasoning of the Damas Case, we not only find a distinction, but one which that very reasoning stamps as controlling. An oral confession is an intangible thing. Strictly speaking only evidence of it, not the confession itself, can go to the jury. What it was must be determined from that evidence. Not so with a written confession. Here the confession goes to the jury. It is tangible, definite, specific. What it was is determined from the thing itself.

The opinion in the Damas Case, either directly or by approved citations and quotations, rehearses the several imperfections by reason of which evidence of an oral confession is classed as circumstantial rather than direct. They are: The facts of guilt are not stated in documents; they do not come under the cognizance of the senses of the witness testifying; they are only inferred from established circumstances; they are twice removed from such circumstances; the language may have been misunderstood or misconstrued; the inferences may be erroneous; the witness may have testified falsely. Of these the last only has any application to a written confession, but it exists also as to all direct evidence. It is further observed therein that any confession, once clearly established, is inherently the strongest, not the weakest, evidence of the facts it details; and the weakness of an oral confession is not in the confession itself, but in the evidence of its existence. In that case the question, clearly stated, was: Is testimonyof a confession circumstantial evidence? Here the question is: Is a written confession, a duly signed, attested, and proven document, circumstantial evidence? We know of no authority, and can conceive of no reasoning, which justifies an affirmative answer thereto. Exhibit H was established beyond the peradventure of a doubt. Save for the contention that defendant was intoxicated and was not warned, it is undisputed. By this document the person most concerned, he against whose last earthly interest it stands, whose eye saw, whose ear heard, whose hand acted, speaks. If this evidence is not direct, no evidence can be. The strenuous argument that it is extrajudicial is beside the mark. The question is not: Where was it given? but: How was it given? Did it come from one whose senses took cognizance of the very facts in issue, or from one whose senses only took cognizance of the facts from which those in issue must be deduced? If from the former it is direct evidence, if from the latter it is circumstantial. The conclusion is inevitable; this written confession was direct evidence, and instruction No. 12 was correct.

It is also contended that the trial court ignored the rule in the Damas Case; that the rule of stare decisis is here applicable; and that an affirmance of this judgment would amount to ex post facto judicial legislation. Each of these propositions is disposed of by the foregoing.

Furthermore: In the course of our investigations we have been forced to the conclusion that our position in the Damas Case is untenable. While the question of the character of an oral confession is not argued in the instant case, it is nevertheless involved and, but for Exhibit H would be controlling. For that reason, and because of the duty imposed upon us by section 2, article 6, of the state Constitution, we must decide that question, and in so doing must and do overrule Damas v. People, supra. An examination of the authorities cited in the two opinions in that case will disclose that no one of them directly supports the decision of the court, while several are directly opposed to it. These latter, because they involve only instructions on the probative force of circumstantial evidence, are dismissed in the majority opinion as of mere inferential value. We cannot admit the assumption. "Circumstantial evidence," considered from the standpoint of probative force, is identical with "circumstantial evidence" as used in the statute. A careful examination of the foregoing and of the two opinions in the Damas Case will disclose that the whole difficulty is with the facts establishing confessions, not with facts established by confessions; with the weight of evidence, not the character of evidence. Weight is for the jury, character for the court.

The language of the statute is, "who shall have been convicted on circumstantial evidence alone." One is not convicted on evidence of the existence of a confession alone, hence whether such evidence is direct or circumstantial is immaterial. One is convicted on a confession which, onceestablished, is itself the evidence to be considered. It is then always direct and always convincing because, speaking against interest and free from errors of interpretation or inference, it is the voice of one whose senses took cognizance of the facts of guilt reciting those facts to the jury.

We therefore conclude that confessions, oral as well as written, are direct evidence.

The judgment herein is accordingly affirmed, and it is further ordered that it be executed during the week commencing March 16, 1925.

MR. CHIEF JUSTICE TELLER dissents from that portion of the opinion overruling Damas v. People. On Application for Rehearing.