Martz v. People , 114 Colo. 278 ( 1945 )

On petition for rehearing, counsel for plaintiff in error with commendable diligence challenge one of the instructions which is similar to that given and quoted inBruner v. People, 113 Colo. 194, at page 216 (156 P.2d 111, 121). This instruction concerns the matters to be considered in determining the weight to be given to defendant's confession. Of the instruction in the Bruner case, we there said: "The court erred in giving the quoted instruction and in refusing to properly instruct the jury upon its duty if, from the evidence, it reached the conclusion that the confession was not freely and voluntarily made." We fear counsel misinterpret that statement. The vice of the instruction there considered was not that it was an incorrect statement of the law, but that it was incomplete. It was proper as a statement of the matters to be considered by the jury in determining the weight to be given the alleged confession, but standing by itself it was incomplete in its assumption that some weight must be given to the confession, and the jury should have been further instructed, under the conflicting evidence in that case, that it must determine whether the confession was freely and voluntarily made and, if not, that it should be disregarded altogether. As was pointed out in that opinion, the defendant there tendered an instruction so advising the jury and thereby the matter was specifically called to the attention of the court, but no such additional instruction was given. Although the case was necessarily reversed on other grounds, we pointed out that this failure to instruct as to the admissibility as well as to the weight of the confession was erroneous.

In the instant case it was contended by the defendant that his alleged confessions were induced by threats and were made at a time when he was not in possession of his mental faculties. The instruction as to the weight to be given the confessions was followed by an instruction that if the jury believed from the evidence that the confessions were made under threats or duress or that the defendant was not in possession of his mental faculties so that he knew what he was saying or signing, then the defendant could not be given the death penalty. Under this instruction, by fixing the penalty at death, the jury necessarily must have found that the confessions were voluntary and no prejudicial error appears.

The petition for rehearing is denied.