Downey v. The People

No. 16,164

Supreme Court of Colorado

121 Colo. 307; 215 P.2d 892; 1950 Colo. LEXIS 312

February 20, 1950, Decided

SYLLABUS: Plaintiff in error was convicted of murder of the first degree, and sentenced to life imprisonment in the state penitentiary.

COUNSEL: Messrs. Long, Hyman & Calkins, for plaintiff in error.

Mr. John W. Metzger, Attorney General, Mr. Joseph E. Newman, Deputy, Mr. Raymond B. Danks, Assistant, for the people.

JUDGES: En Banc. Mr. Justice Moore delivered the opinion of the court. Mr. Chief Justice Hilliard and Mr. Justice Holland dissent.

OPINION BY: MOORE

OPINION: David Albert Downey, the defendant in the lower court and to whom we hereinafter refer as defendant, or by name, was charged by information filed in the district court of El Paso county on July 28, 1947, with having "feloniously, wilfully and of his malice aforethought" killed and murdered one Lolly Lila Downey. Defendant entered a plea of not guilty and the cause came on for trial October 7, 1947. The jury returned a verdict of guilty of murder in the first degree and fixed the penalty at "life imprisonment at hard labor in the State Penitentiary." Motion for new trial was thereafter filed, argued, and denied, and appropriate judgment was entered by the court. Defendant brings the cause here by writ of error, and relies for reversal upon alleged errors of the lower court in the conduct of the trial as follows: 1st. That the trial court erred in receiving in evidence testimony relating to an alleged confession made by the defendant and in refusing to strike said testimony. 2nd. The court erred in refusing to strike the testimony of Dr. Henry W. Maly as the same related to the injuries to the larynx of the deceased. 3rd. The court erred in overruling defendant's motion for a directed verdict upon the ground that the corpus delicti had not been established. 4th. That the court erred in refusing to give two instructions tendered by the defendant.

The evidence discloses that defendant met deceased in London, England, in 1943 while he was serving in the military forces of the United States. Deceased came to the United States in January, 1946, and in April of that year she and defendant were married in the State of California. In May of 1946, a $ 10,000.00 endowment life insurance policy was issued upon the life of the deceased, and in August of that year two additional policies, each in the sum of $ 5,000.00, were issued upon her life. Defendant was named as beneficiary in all of these policies, which contained double indemnity provisions in case of violent death by accidental means. The defendant carried the same amount of insurance upon his own life and the beneficiary in those policies was the deceased.

It appears that for some months following the marriage defendant and his wife were employed, and that their joint earnings were $ 540.00 per month. In May, 1947, defendant and deceased went from California to Iowa, due to the illness of defendant's foster mother, where they remained until shortly prior to the events resulting in the death of Mrs. Downey. Defendant and deceased arrived in Colorado Springs, Colorado, on July 16, 1947, on their return trip to California. On July 17th they visited various points of interest. On July 18th they drove to the top of Pikes Peak, had lunch at Woodland Park, after which they drove up the Rampart Range road and did some climbing. At about one o'clock in the afternoon they proceeded by car to a still higher point on this road, where they again parked their car. From the point where their car was parked they climbed a hill. The body of Mrs. Downey was later found about one-third of the way up this hill.

Between one and two o'clock in the afternoon of July 18, 1947, a Dr. Wilson was driving on the Rampart Range road when he observed the defendant being assisted into a car by a Mr. Hubbard from Texas. Dr. Wilson stopped his automobile and noticed blood on the left side of defendant's shirt. He testified that defendant stated, "I am not hurt -- that is my wife's blood. * * * She may be dead." Dr. Wilson and Mr. Hubbard were unable to find Mrs. Downey and returned to defendant's automobile and he thereupon assisted them in locating the body. According to Dr. Wilson the body was not disarranged. It was placed out very carefully. Mrs. Downey was dead, but the body was warm. Defendant complained of injuries received from a fall, police authorities were notified, and defendant was taken to a hospital in Colorado Springs where he remained until Saturday, July 19, when he was lodged in the county jail. Dr. Wilson testified that while at the hospital defendant asked him, "if her tongue was out" and when the doctor asked the reason for the question defendant stated, "She seemed to be strangling and I tried to remove her tongue." The terrain where the body was found was rugged, being a mass of rocks and boulders. It was not, however, a dangerous area as to being precipitous. The body was lying at the foot of a ledge of rock about three feet in height, on the surface of which there was a considerable amount of blood. About thirty-four feet up the hill from the point where the body was found there was some evidence that a scuffle had occurred. An autopsy was performed which disclosed superficial scratches and bruises. There was a two inch wound in the back of the head which penetrated the scalp but did no further damage and was not the cause of death, which, as testified by the experts performing the autopsy, was asphyxia due to a strangulation.

* * *

On July 24th, in the forenoon, the Reverend Albertson, minister of the First Methodist Church at Colorado Springs, conferred with the defendant privately for about two hours. This conference was arranged at the request of defendant. Defendant was questioned by the officers at 1:00 P.M., who testified that he then stated, "that he had slept over it and wanted to get it off his chest and try to atone for the wrong he had done. He was an entirely different individual and talked freely." During the intervals separating the interrogations of defendant he was not disturbed; he was provided with food, and made no complaint of being denied opportunity to rest.

During the questioning of defendant prior to the afternoon of July 24, his statement -- generally persisted in by him -- concerning the events immediately preceding his wife's death was, as related by officer Bruce, as follows: "They drove back to Woodland Park at eleven o'clock A.M. where they had lunch and drove to the Rampart Range Road, stopping one place to climb around. They got back in the car and drove to another spot where Mrs. Downey met her death. They parked the car on the right-hand side of the road facing Colorado Springs, climbed about three hundred yards from the highway up around a large rock and were sitting on this rock -- not clear to the top -- and were necking up there. In some manner Mrs. Downey fell -- he doesn't know how she fell -- she was injured, she screamed, he rushed after her. He thinks he picked her up. He got hold of her body. He didn't know she was injured but she was bleeding. He had her in his arms -- both fell and after they both fell he is very, very hazy. He injured his back -- just don't know what happened. From the time he fell -- he remembers he was in the air -- he don't remember anything until he was found down on the highway on all fours by a Mr. Hubbard who was driving by -- a tourist from Texas. He assisted him to his car and about that time Dr. F. M. Wilson, a tourist from Leavenworth, Kansas, appeared on the scene and he told them both what happened and tried to direct them where they would find his wife. They left the highway but were unable to find her. They came back to the car and assisted Mr. Downey to where his wife was. He pointed her out and they took him back and sent him in an ambulance to Memorial Hospital of this city."

* * *

[The substance of the actual confession:] [Now, resuming the details of what happened on this mountain top, they were on this hill and had this argument and got ready to leave. His wife had picked up a rock for geological comparison and he picked one up. His wife was in the lead, he bringing up the rear. He doesn't know what happened -- he completely lost his head. He took the rock, about the size of two teacups, and hit her in the back of the head. Whether that knocked her down or she fell he does not know. She was injured. He rushed to her and had her in his arms. He said he choked her to death with his left arm. After that he doesn't know for sure how he got down to the point that he was found stumbling and crawling around."]

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Second: Was the corpus delicti sufficiently established by the evidence?

At the close of all the evidence the defendant moved for a directed verdict of not guilty "for the reason that the corpus delicti has not been established without recourse to the alleged confession of the defendant." The motion was overruled and error is assigned on the ruling.

In Bruner v. People, 113 Colo. 194, 156 P. (2d) 111, we said: "It is well settled in this jurisdiction that the corpus delicti consists of two components: death as a result, and the criminal agency of another as the means, and it is equally settled that the corpus delicti may be established by either direct or circumstantial evidence. Roberts v. People, 11 Colo. 213, 17 Pac. 637; Ausmus and Moon v. People, 47 Colo. 167, 107 Pac. 204; Bunch v. People, 87 Colo. 84, 285 Pac. 766." The Bruner case is authority for the rule prevailing in this jurisdiction that circumstantial evidence is sufficient to establish the corpus delicti in a homicide case if it is such as to prove the essentials thereof to a reasonable certainty.

In Lowe v. People, 76 Colo. 603, 234 Pac. 169, we stated:

"Proof that one charged committed a felonious homicide involves three elements; first, the death; second, the criminal agency of another as the cause; third, the identity of the accused as that other. The first two constitute what is known in law as the corpus delicti." * * * Each of these elements must be established by the prosecution to the satisfaction of the jury beyond a reasonable doubt. The court, however, is not the judge of the weight of the evidence. When sufficient has been produced to justify a submission to the jury and support a verdict of guilty, should such a verdict be returned thereon, the requirements of the law have been met. This rule applies to each of the elements of the corpus delicti as it does to the proof of the identity of the accused as the perpetrator; no more no less."

* * *

"That proof may be made by any legal evidence, the same as proof of other facts."

It is true that a conviction of crime cannot be upheld where it is based upon the uncorroborated confession of the person accused. There must be evidence of the corpus delicti apart from the statements contained in the confession. In the case at bar there is ample evidence, apart from the confession, from which the jury might properly find that the wife of defendant was dead, and that her death was brought about by "the criminal agency of another as the means." Defendant was the sole companion of his wife at the time of her death. There was blood on his shirt, which he stated was that of his wife. He directed those first upon the scene to the place where her body was found. The body was still warm. The position of the body, the fact that her clothing was not disarranged, the fact that pressure had been applied to both of her wrists and her throat, the general topography of the terrain where she was found, were all inconsistent with the theory of accidental death. The ragged scalp wound in the back of the head of deceased corroborated the statement of defendant that he struck her a blow with a "rock about the size of two teacups." The defendant directed an inquiry to Dr. Wilson as to whether deceased's tongue was out when he first observed the body, and this unusual question was wholly the thought of defendant. The doctors who performed the autopsy testified that the cause of death was strangulation produced by pressure applied to the throat. Competent evidence tending to establish these facts was sufficient to establish the corpus delicti of the crime of murder, and the trial court did not commit error in overruling defendant's motion for a directed verdict on the ground that the corpus delicti had not been sufficiently proven.



* * *

The defendant was capably represented at the trial, and here, by counsel of ability and experience, and we are persuaded that he was afforded a fair trial in accordance with established rules of law. The assignments upon which he relies for reversal are overruled, and accordingly the judgment is affirmed.

DISSENTBY: HILLIARD

DISSENT:
Mr. Chief Justice Hilliard dissenting.

In the matter of the confession of guilt admitted in evidence, the record here, as I am persuaded, parallels the composite of the records in recent cases determined by the Supreme Court of the United States relative to confessions, cited in the court's [**901] opinion, namely, Watts [***30] v. Indiana, 338 U.S. 49, 69 Sup. Ct. 1347, 93 L. Ed. 1434; Turner v. Pennsylvania, 338 U.S. 62, 69 Sup. Ct. 1352, 93 L. Ed. 1443; Harris v. South Carolina, 338 U.S. 68, 69 Sup. Ct. 1354, 93 L. Ed. 1440. The conclusions reached in those cases, as I think, should be regarded as controlling. In that view, and not pausing for extended exposition, I find it consistent to dissent. The details of the offense, much emphasized in the court's opinion, are well calculated to cause even judges, for the nonce, to forget rules of criminal procedure, and justify on the enormity of the offending. It were well, I think, ever to keep in mind, that, "The history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 63 Sup. Ct. 608, 87 L. Ed. 819.