Casemaker Note: Portions of this opinion were specifically rejected by a later court in 307 P.2d 1083
Rehearing Denied March 18, 1940.
Error to District Court, City and County of Denver; Stanley H. Johnson, Judge.
Willie David Munday was convicted of murder in the first degree, and he brings error.
Reversed and remanded with directions.
FRANCIS E. BOUCK, BAKKE and BURKE, JJ., dissenting.
[105 Colo. 548]Oval A. Phipps, of Denver, for plaintiff in error.
Byron G. Rogers, Atty. Gen., and Henry E. Lutz, Deputy Atty. Gen., for defendant in error.
A jury in the district court found plaintiff in error guilty of murder in the first degree and fixed the penalty at death. He brings the case here for a review of the judgment entered accordingly. Upon arraignment [105 Colo. 549] plaintiff in error pleaded 'not guilty' to the charge, but subsequently one of the judges of the criminal division of the Denver district court upon his own motion ordered that the further statutory plea of 'not guilty by reason of insanity at the time of the alleged commission of the crime and since' be entered on behalf of the accused. Springing from a technical construction of the language employed by the clerk of the district court in writing the minutes of the proceeding appearing in the record, some apprehension has arisen here with respect to the sufficiency of the latter plea. Any uncertainty so occasioned is dispelled by the circumstance that neither the trial judge in disposing of the motion for new trial nor the attorney general in his presentation here questions the regularity of entry or sufficiency of the plea in any particular. Nor properly should a case involving capital punishment be controlled by an academic doubt. We therefore proceed upon the premise that both pleas were made and sufficiently entered.
After the conclusion of the introduction of evidence, the cause was submitted to the jury on the 'not guilty' plea with forms of verdict appropriate thereto,but no additional form of verdict with the words 'not guilty by reason of insanity' was given the jury. By omission in this particular, counsel for plaintiff in error, who had no connection with the case until appointed by the trial judge to conduct this proceeding of review, contends that in the light of the pleas of record and the provisions of section 510, chapter 48, '35 C.S.A., substantial errors arose and seeks reversal solely upon that ground.
Section 510, supra, section 4, chapter 90, S.L.1927, relating to pleas of insanity in criminal cases, provides as follows: 'If the plea is 'not guilty by reason of insanity at the time of the alleged commission of the crime,' or 'not guilty by reason of insanity at the time of the alleged commission of the crime and since,' in addition to the other forms of verdict, the jury shall be [105 Colo. 550] given a form with the words 'not guilty by reason of insanity'. If said verdict is rendered, the defendant shall be confined in the Colorado state hospital at Pueblo under the laws governing that institution.' Before the passage of the act of 1927, the question of insanity could be raised in a criminal case under a general plea of not guilty. In order to avoid or lessen certain abuses which were believed to exist under the old practice, the legislature changed the method of raising the question of insanity in such cases by promulgating the procedure set out in section 1 of the 1927 act, '35 C.S.A. c. 48, § 507, a failure of compliance with which precludes an accused from demanding an acquittal by reason of insanity. Ingles v. People, 92 Colo. 518, 22 P.2d 1109. By the 1927 act the procedure only has been changed and the substance of the defendant's constitutional right to a jury trial on the question of insanity has been preserved. Ingles v. People, supra.
As is apparent from the remarks made in overruling the motion of plaintiff in error for a new trial, the court entertained the view that under the 1927 act, even where a special plea had been entered, the question of insanity could not properly be considered by the jury unless the accused introduced evidence thereon, which, in the court's opinion, he had failed to do in the instant case; and consequently it was unnecessary to give the special form of verdict mentioned in section 510, supra. In his ...