Casemaker Note: Portions of this opinion were specifically rejected by a later court in 248 P.2d 287
Casemaker Note: Portions of this opinion were specifically rejected by a later court in 469 P.2d 732
Rehearing Denied Oct. 8, 1945.
Error to District Court, Arapahoe County; Harold H. Davies, Judge.
Charles Ford Silliman was convicted of murder, and he brings error.
Earl J. Hower, of Denver, for plaintiff in error.
H. Lawrence Hinkley, Atty. Gen., Duke W. Dunbar, Deputy Atty. Gen., and James S. Henderson, Asst. Atty. Gen., for defendant in error.
Charles Ford Silliman, whom we refer to herein as defendant, was found guilty of murder in the first degree and judgment entered in accordance with the verdict fixing the death penalty. To review this judgment he has sued out a writ of error and assigns forty-three errors, to which reference will hereinafter be made.
The offense of which defendant was found guilty was the murder of his wife, Esther Corrine Silliman, by administering strychnine. The crime was committed January 22, 1944, and upon arraignment February 11, 1944, defendant entered his plea of 'Not guilty' 'Not guilty by reason of insanity at the time of the alleged commission of the crime' and 'Not guilty by reason of insanity since the alleged commission of the crime.' Upon the entry of these pleas, defendant by order of the district court, was confined in the Colorado Psychopathic Hospital at Denver, Colorado, for observation.
The trial was begun on March 8, 1944, and at its conclusion the jury, on March 16, 1944, returned its verdict finding the defendant guilty of murder in the first degree and fixing the penalty at death. A motion for a new trial, specifying forty-six alleged errors, was filed, and on April 6, 1944, overruled and judgment upon the verdict pronounced.
The facts as disclosed by the record, briefly stated, [114 Colo. 133] are these: Defendant lived most of his life in eastern Colorado where he was married to his deceased wife in October, 1933. Two children were born of this marriage, the elder being a son about eight years of age and the younger a daughter about four years of age. While living in eastern Colorado, defendant was engaged in farming and, for a period of time, as a truck driver. In August, 1943, he came to Denver to find employment. About September, 1943, his wife and daughter joined him and, until the tragedy, resided with him at 677 South Federal Boulevard, in Arapahoe County, Colorado. On coming to Denver defendant first was employed by a local lumber company and after some months, when this employment was terminated, as defendant says, by reason of lack of business--his employers assigning another reason therefor--he obtained employment with some transportation company.
During the fall of 1943 defendant became acquainted with a woman whom he met in a beer tavern in Denver and later that fall and early winter he met her on several occasions, and during December, while his wife was absent, he rather frequently visited this woman acquaintance, and on one or two occasions entertained her and her roommate and a man at his home. In December--the exact date of which seems to be in dispute--defendant's wife and daughter returned to eastern Colorado to visit her parents and her son, who had remained there.
At the time of the wife's departure, defendant claimed that he was in ill health. According to his testimony--and he alone testified with reference thereto--he had some eye affliction which seemed to be increasing, and he had financial difficulties, which, when he detailed them, seemed to be of no unusual moment.
The wife and daughter returned to Denver from Cheyenne Wells shortly after Christmas, 1943.
According to defendant's testimony, he and his wife, in the early fall of 1943, had discussed his condition of [114 Colo. 134] health and their financial situation and, as a result, they entered into a suicide pact, which included the murder of their two children. According to his testimony, this pact had been frequently discussed between him and his wife. Defendant states that on January 22, while at work, the suicide pact and his difficulties with reference to health and financial matters so preyed on his mind and became so oppressive that he then decided to procure some strychnine and carry the pact into effect. Pursuant to this determination, he went to a drugstore, purchased some strychnine, and registered under a fictitious name and address. After procuring the strychnine he went to a liquor store, bought a bottle of brandy, and then drove to the apartment of his woman acquaintance. After attending to some errand with this woman, he returned to her apartment, poured part of the brandy into an empty bottle, and gave the remainder thereof to the woman. Upon leaving the woman's apartment, he purchased some groceries, and, Before reaching his home, put some of the strychnine into
the brandy which he had retained. Upon his arrival at his home and while preparing for their evening meal, defendant states that something 'hit him' and 'told him to go ahead with it and not prolong it any longer,' this, as he testified, referred to the suicide pact. He then went to his auto, procured the poisoned brandy, poured some of it into a small glass, and gave it to his wife. The wife, Before drinking any of the poisoned brandy, gave a sip thereof to their daughter and then immediately drank some of it. The wife and daughter died within a few moments thereafter. Defendant testified that he too took some of the poisoned brandy but spit it out at once.
Immediately prior to the death of his wife and daughter, defendant sought assistance for them from neighbors, who called a doctor, but he and they were unable to render effectual medical or other aid. When the officers were called and arrived, defendant disclaimed any knowledge as to the cause of the death of his wife and [114 Colo. 135] daughter excepting he suggested that perhaps it was occasioned by some food that they had eaten. During the investigation at defendant's home, the officers found a bottle which had contained strychnine, and this and other evidence of criminality caused the sheriff to place defendant under arrest and take him to the county jail.
During the morning of January 23 defendant was interrogated by the officers and made a complete and detailed confession which later was repeated to the deputy district attorney and the officers, their questions and answers being taken in shorthand and subsequently transcribed. These questions and answers constituted People's Exhibit L, hereinafter referred to as the written confession. It consisted of fourteen pages, subscribed by the defendant, initialed by him on each page thereof, and witnessed by the deputy district attorney, the sheriff and two of his deputies. If the answers therein contained are true, there can be no doubt as to the cause of death and no possible question as to defendant's culpability if he was sane.
Defendant was found to be an indigent person; counsel was appointed for his defense; we waived the requirement of an abstract of record and granted permission to submit the case on typewritten briefs. The record consists of sixteen hundred sixty-four folios, all of which has been read and given the careful consideration that the seriousness of this case merits.
The forty-three assignments of error may be thus summarized: (1) Refusal of the court to grant defendant's counsel the privilege of examination and inspection of defendant's written confession Before cross-examining witnesses thereto; (2) denial of defendant's motion to strike the testimony of Drs. Murphey and Davis, expert witnesses called by the people; (3) district attorney's questions on cross-examination of defendant's father; (4) refusal to grant a mistrial on account of unsanitary conditions in the jury room; (5) the giving of instructions; and (6) refusal of the court to give tendered[114 Colo. 136] instructions. We shall discuss these summarized assignments in the order mentioned.
1. The court, out of the presence of the jury, heard testimony to determine whether the written confession, Exhibit L, was voluntary. The district attorney during this examination asked no question pertaining to the contents of Exhibit L, and on direct examination no witness volunteered any information as to its contents. The questions asked by the district attorney related solely to the circumstances and conditions under which the confession was obtained. Before cross-examining any of the witnesses, defendant's counsel requested the opportunity of examining the exhibit. This request was denied by the district attorney, and a motion based thereon was denied by the court. It should be borne in mind that the sole question for the court's determination at the preliminary hearing was the voluntariness of the confession. At such a hearing the contents of the confession are wholly immaterial, and had questions pertaining thereto been asked, either on direct or cross-examination, they probably would have been objectionable. Fincher v. People, 26 Colo. 169, 56 P. 902; Mitchell v. People, 76 Colo. 346, 232 P. 685, 40 A.L.R. 566; Moya v. People, 88 Colo. 139, 293 P. 335; Bruner v. People, 113 Colo. 194, 156 P.2d 111; Ah Fook Chang v. United States, 9 Cir., 91 F.2d 805; 2 Wharton's Criminal Evidence, 10th Ed., p. 1420 et seq.; 22 C.J.S., Criminal Law, § 834, p. 1458; 20 Am.Jur. 452.
Exhibit L was a part of the people's evidence, and the only question with which the court was then concerned was whether it was voluntarily given so as to become admissible when offered in evidence. When the exhibit was offered finally, defendant's counsel was given the opportunity of
examining it for the purpose of interposing any objection that he might have thereto.
We might state at this point that there was no evidence at the preliminary hearing or subsequent thereto indicating that the confession was involuntary as being [114 Colo. 137] obtained by the use of either force, coercion, threats, promises or hopes. If defendant was sane at the time the confessions were made, his guilt was established thereby beyond question of doubt.
The sheriff and two of his deputies were called as witnesses for the people, and upon direct examination were interrogated with reference to the circumstances under which the defendant made an oral confession prior to the written one designated as Exhibit L. These witnesses were permitted to testify in detail as to the oral confession and again defendant's counsel moved for permission to examine Exhibit L Before cross-examining these officers with reference to the oral confession. This motion was denied. During the examination of the officers no question was asked as to the contents of Exhibit L, and it was not offered or received in evidence until just Before the people rested their case. The oral confession of defendant was the only evidence then Before the court and jury. There was no requirement that the people ever offer the written confession. It was an extra-judicial confession and could be retained by the prosecuting officers until such time as they desired to make use thereof. No right of defendant was violated when his motion for examination and inspection was denied. When the people saw fit to offer the written confession, then, and not until then, was defendant entitled to examine and inspect it. This right was accorded him for the purpose of interposing any objection he might have thereto. While we have been unable to find any decision in this jurisdiction directly in point, we are not without ample authority to support this position. Abdell v. Commonwealth,173 Va. 458, 2 S.E.2d 293; State v. Yeoman,112 Ohio St. 214, 147 N.E. 3; State v. Kupis, 7 W. W. Harr. 27, 37 Del. 27, 179 A. 640; Cochrane v. State,48 Ariz. 124, 59 ...