# Walker v. People > Supreme Court of Colorado · July 24, 1952 · 126 Colo. 135 URL: https://www.frixlaw.com/law-library/cases/9793559 ## Case - **Full name:** Walker v. the People - **Court:** Supreme Court of Colorado - **Decided:** July 24, 1952 - **Citations:** 126 Colo. 135; 248 P.2d 287; 1952 Colo. LEXIS 199 - **Precedential status:** Published - **Opinion:** Dissent by Holland - **Judges:** Clark, Holland - **Cited by:** 76 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9793559 ## Opinion text Mr. Justice Holland dissenting. If we accept the record as it is before us, there is little' therein to exonerate the defendant; however, the ultimate question is: Was this record fairly made? We cannot disregard the fact that an atrocious crime was committed; that the seat of the trial was in the same community of irate citizens; and that when the finger of suspicion was pointed in defendant’s direction, and when the charge was finally laid against him, all accounts thereof were fully embroidered by the press, which should be the maximum of information and the minimum of comment before trial in criminal cases. With this setting, it is easy for the gossamer thread of prejudice to be invisibly woven into the fabric of guilt through the means of an unfair and partial trial. In my opinion, several prejudicial errors occurred, the combination of which was sufficient to tip the finely balanced scale of justice. In a crime of the highest degree, such as this, no one can safely say that any error, however slight, is not prejudicial. In such an atmosphere, the following expression of Robert Ingersoll is fitting, “Prejudice is the spider of the mind, it is the womb of injustice.” A motion was filed to disqualify the trial judge, which contained, in my mind, a statement of sufficient facts to arrest the attention of any trial judge. It is contrary to my idea of justice in a criminal case for a trial judge to attempt to preside as an impartial tribunal and determine his qualifications on the question of prejudice when the question showing reasonable apprehension has been raised by the defendant, because, as honest as the trial judge may be, he may not consciously be aware of the existence of the fact or accusation made against him. Certainly, no error obtains if a judge immediately disqualifies himself, thereby giving defendant the benefit *167 of doubt. This court has said that in such cases the trial court cannot go behind the facts presented in a motion for disqualification of the judge. Here the trial court recognized that situation; however, he discussed the facts and concluded that they did not disclose prejudice on his part. All of this is said with the greatest respect for the honorable trial judge in this case, whose honesty and integrity is beyond question; in my opinion, however, an unconscious prejudice throughout the entire proceeding lurked in his mind and to avoid any possible question of prejudice, he should have withdrawn gracefully. Error is assigned as to the admission of the testimony of the witness Delbert Black, who testified for the people, in substance, that some two months or more prior to the date of the crime charged, while he was walking along the street in Boulder shortly after eleven o’clock P.M., defendant offered him a ride; that he and defendant then drove up Broadway toward the university, pulled over under a light, and stopped for a little while to drink some beer; that when he looked in the glove compartment in search of a can opener, he saw a forty-five revolver in a holster; that in the conversation, defendant told him that on a prior occasion he tried to pick up two co-eds and that one of them was all ready to get into the car, but the other pulled her out and they did not go. This testimony was admitted, over the objection of counsel for defendant, on the ground that it tended to show the attitude of mind of defendant, and a connection with his mental thoughts and tendencies. The court undoubtedly was laboring under the impression that this testimony related to the matter of similar offenses, which, in many instances, is admitted to show design, intent, and purpose. I wholly fail to see any rational connection between this incident and the crime charged. If defendant had murder in his heart, it is not reasonable to think he would be picking up two girls, much less talking about it. Intent is relevant to the issue *168 in the offense charged. The general rule is, that evidence is inadmissible which shows that the accused has committed a crime wholly independent of the one for which he is being tried. There are two exceptions to this rule, namely: (1) Evidence as to similar offenses that are not too remote in time to be of evidentiary value is admissible to show scheme, plan, design, motive, intent, knowledge or identity, or any combination thereof. (2) When the evidence of other offenses is so related and interwoven with the offense charged, that it is impossible to show such charged offense without relating the other offenses. The testimony here fails to come within either of the exceptions. First of all, the so-called similar offense is not an offense at all. An offense is the doing of that thing which a penal law forbids to be done, or omitting to do what it commands; therefore the act of defendant in offering the two girls a ride does not fall within the classification of a crime or offense. In the instance before us, where defendant did not take the witness stand, and his character was not in question, the admission of this testimony was an indirect attack upon his character. To come within the first exception to the rule, it must appear from the testimony that the similar offense is so connected in time, and so similar in other relations to the crime charged, that the same motive may reasonably be imputed to them all. Housh v. People, 24 Colo. 262 , 50 Pac. 1036 ; Elliott v. People, 56 Colo. 236 , 138 Pac. 39 . It thus is to be seen that our court has definitely tied the admission of such testimony under the first exception to the rule to the question of connection in time and so similar in other respects. Where intent to murder is an element of the crime charged, it is wholly impossible to spell out of this occurrence a similar offense, and common-sense reasoning, as well as our own decisions, make the admission of the testimony prejudicial, and error that is insurmountable. The very wording of a part of the court’s instruction No. 12 highlights the error, it is, “ * * * that testimony was admis *169 sible only as to a bearing, if any, upon the defendant’s attitude of mind, if any, tending to show a plan, scheme or design to produce a result similar to the act charged in the information.” What reasonable person could say that in a case where murder is charged, that testimony tending to show that defendant offered two girls a ride, would in any way show a connection with the mental thoughts and tendencies of the defendant relative to murder. We all know that such occurrences are common in our present-day life; however, a murder in connection therewith is the rare exception. In addition thereto, the testimony in this case does not disclose that defendant picked up the victim of this crime in the manner alluded to in the testimony of the similar offense, but it was sought to be established by the people that the defendant was seen at the “Nifty Nix Cafe” with a girl thought to be the deceased and with whom defendant was acting on friendly terms. This could well have been, and no one can say that it was not the turning point in the minds of a jury allergic to any slight suggestion, when an atrocious crime had been committed in their community for which someone should be punished. We next come to the admission of exhibit SS, which is not a confession, but may be termed an exculpating statement wherein defendant denied his complicity in the crime, but explained incriminating circumstances. Some of this was taken while defendant was under treatment by a physician, and comes within the prohibition against the means employed in eliciting disclosures, statements, or confessions, and is clearly within the present-day, blown-in-the-bottle variety of attempts to prove defendant’s guilt from his own mouth. When this method is allowed, the process and burden of proving the charge asserted is lightened, and the defendant is made the unfortunate instrumentality of his own conviction. I have not detailed the contents of this lengthy statement, but I ground my opinion on its prejudicial *170 effect, and I firmly assert that its admission was harmful error. It was undoubtedly easy for jurors untrained in the technique of distinction, to have considered this to be a confession, and, of course, if it was so considered, then its admission after being obtained under the circumstances, was in violation of defendant’s rights of due process. Outside of this exhibit SS, which I have just discussed, there was nothing but circumstantial evidence in this case, and the court should have instructed the jury that such circumstances must be such as were absolutely incompatible, upon any reasonable hypothesis, with the innocence of the defendant, and incapable of explanation upon any reasonable hypothesis other than that of the guilt of the defendant. This the trial court erroneously refused to do, because there was no confession properly admitted as such in the case, therefore the case rested on circumstantial evidence and the trial court should have given an instruction along the line suggested. By instruction No. 4, the trial court, after stating that, “No person shall suffer the death penalty who shall have been convicted on circumstantial evidence alone,” then stated, “In this case the court finds while there is some direct and some circumstantial evidence, that as a matter of law, the evidence herein does not warrant the death penalty, and therefore same is withdrawn from your consideration. * * * ” If there was direct evidence, as the court states, then it was the court’s unquestioned duty to submit the death penalty under our statute. The words of the court above set out clearly fall within the prohibition against the trial court commenting on, or discussing the evidence. The court surely and unmistakably made a prejudicial comment by saying there was direct evidence of guilt, and in so many words said there was circumstantial evidence sufficient to warrant a conviction of murder in the second degree. The province of the court in this matter was limited entirely to *171 its determination of whether or not there was direct evidence in the case and thereby determine whether or not the question of infliction of the death penalty should be submitted to the jury. Its province did not encompass the field of discussion of the evidence by its instruction to the jury. . The record discloses that an employee of a newspaper was given the right to make examinations of certain ■ parts of the evidence for private purposes, but defendant was denied this right after making proper application therefor. The district attorney, in his opening statement, told the jury that defendant’s wife went to police headquarters, and he then said, “I cannot tell you what she told them, because that was hearsay.” The inference was that she made some damaging statement, and this is only a part of the various matters that so electrified the already charged atmosphere to the end that defendant did not have a fair and impartial trial. If we emphatically disapproved such antics, such would not constantly be appearing in these cases. The district attorney well knew that defendant’s wife could not be called as a witness to testify against him. All of this was climaxed by a sentence of from eighty years imprisonment at hard labor to life imprisonment given by an “unbiased and unprejudiced judge.” The conviction was of murder of the second degree, the statutory penalty for which is imprisonment in the penitentiary for a term of not less than ten years to life. With defendant’s age fixed at thirty-two years, his life expectancy was 33.92 years. The statute provides for a minimum and a maximum sentence, the intent of the statute being that the minimum would be less than the expected life of defendant, because the maximum is life. In this instance the court allowed no minimum, because its minimum allowance was more than twice the life expectancy. Technically, it may be said that the sentence imposed was within the limitation of the statute and the evil *172 arising therefrom is not for our correction; however, I am compelled to say that, under all the circumstances of the case, this was unusual punishment, especially so when the prejudice of the trial judge was brought in question, and in face of some of the errors herein mentioned. It is another instance of where, in the criminal courts of our land, injustice is an occasional visitor. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9793559. Public record. Not legal advice.