Mitchell v. People , 76 Colo. 346 ( 1924 )

After the expiration of the time provided by our rules for filing motions for rehearing, amici curiae filed their application for leave to appear herein, and with that application tendered a printed brief and argument entitled, "Suggestions of Amicus Curiae that rehearing be granted and oral argument ordered to be made." Said application was granted, said "Suggestions" ordered filed, and oral argument was had. The cause has thus been fully and most ably presented and this has in fact been, in all but name, a full rehearing.

We welcomed the appearance and argument of amici curiae. It speaks well for the profession when learned and distinguished members of it are diligent to see that no new and important propositions of law be determined by the courts of last resort without the fullest presentation and the most careful consideration, and are willing, without fee or reward, to give us the benefit of their talents and industry in cases of grave consequence. We cherish the hope that the day is not far distant in Colorado when such services will be as freely tendered where they inure to the benefit of the people and the support of their laws and institutions as where they inure to the benefit of the violators thereof.

The propositions most strongly urged are: 1. That our present construction of the statute is contrary to our construction in the Damas Case and is ex post facto legislation. This point is fully answered in our opinion and has, moreover, been disposed of by the highest authority.Ross v. Oregon, 227 U.S. 150, 160, 33 Sup. Ct. 220,57 L.Ed. 458, Ann. Cas. 1914C, 224; Frank v. Mangum, 237 U.S. 309,343, 35 Sup. Ct. 582, 59 L. Ed. 969.

2. That the correct construction of the statute is in doubt and that doubt must be resolved in favor of defendant. Our answer thereto is that we have no doubt as to that construction.

3. That, though a majority of the Justices are confident as to the correct construction, the dissent of others necessarily raises such a doubt. If the argument were sound, no statute could ever be held unconstitutional save by a unanimous court. All authority is to the contrary.

Amicus curiae has said that the fate of this particular defendant, momentous as it is, shrinks into insignificance in comparison with the principles here involved. Admitting the truth of that statement, and having, as we believe, correctly determined these principles, a parting glance at their application to the case here under consideration is not inappropriate.

No man could wish to be instrumental in the death of a fellow creature. Gladly would we escape the responsibility did not the most solemn obligations forbid. We are the servants of the law, not her masters. Certain it is that the lawmakers of this state intended the infliction of the death penalty in some cases, and equally certain that the cases intended were those of most wanton and brutal murder devoid of extenuating circumstances and established by indubitable evidence. Let those who read this record in the future make no mistake, either as to the defendant in whose behalf these purely technical propositions are urged, or the crime whose punishment it is thereby sought to mitigate. By the grossest violation of his marital obligations he drove a loyal wife to divorce him; he debauched the wife of a friend and the mother of a family and took her to a place of defilement; enraged at another who had temporarily dispossessed him, he left the place, took the woman's clothes and concealed them to make sure his victim would not escape, armed himself and returning killed both in cold blood. Not the slightest question as to the commission of the crime, the enormity of the details, the identity of the perpetrator, the truth of his confession, or the fact that it was made, has ever been raised. Such is the offender, such the offense, and such the proof with respect to which it is now said in substance: "You held such a crime so proven was established by circumstantial evidence; theoretically relying upon that case, of which it is not claimed this defendant in fact ever heard, he committed this murder and made this confession. If that holding were in truth erroneous you can not now alter it and decide this cause correctly for you would thereby violate this man's trust and do him a shocking injustice." The argument does not appeal to us, either from the standpoint of law or morals.

The rehearing is denied.