Berger v. People , 123 Colo. 403 ( 1951 )

Mr. Justice Hays

delivered the opinion of the court.

John J. Berger, Jr., was convicted June 30, 1948, of the crime of murder, and death penalty imposed September 24, 1948. Thereafter, September 18, 1950, the sentence was affirmed in this court (122 Colo. 367, 224 P. [2d] 228), and date of execution fixed for December 16, 1950. On December 12, 1950, Berger filed a motion in the trial court reciting the above facts, and also:

“That the undersigned [his attorney] has seen the defendant at the state penitentiary at Canon City some time during the month of May, 1950 and that at said time the defendant appeared to have become a lunatic or insane and appeared not to be mentally competent.

“That since said date the undersigned has made inquiry and is of the opinion and belief that many of the guards and keepers at the state penitentiary at Canon City are of the opinion that the defendant is a lunatic or insane at this time and not mentally competent.

“That there is attached hereto a letter from Rev. Justin McKernan, O.S.B., Catholic Chaplain at the Penitentiary at Canon City, which letter is marked ‘Exhibit A’ and by this reference herein incorporated and which indicates that in the opinion of said Chaplain who has seen the defendant at least once a week for a long time that the defendant is not mentally competent, and has since his conviction become insane.

“That pursuant to the provisions of Chapter 48, Section 7, C.S.A. 1935, the undersigned, as attorney for the defendant, respectfully petitions that the Court by personal examination, either public or private, determine the sanity or insanity of the defendant at this time or that this Court appoint a commission to determine the report as to the sanity or insanity of the defendant to the end that a final determination be had as to the sanity or insanity of the defendant at this time.

“That an order be entered staying the execution of the defendant pursuant to the verdict of the jury and judgment heretofore entered until such time as the Court shall have had an opportunity by personal examination or by report of a commission to be appointed to determine the sanity or insanity of the defendant.

“Wherefore, defendant, by his attorney, respectfully prays that this Honorable Court, by personal examination, determine the sanity or insanity of the defendant, or that this Court appoint a commission to determine such sanity or insanity and report to the Court, and that an order be entered that pending such determination that the execution of the defendant be stayed until further order of this Court, and that defendant have such other and further relief as to the Court may seem meet and proper.”

The letter to which reference is made in the above motion, omitting formal parts, is as follows:

“Your kind letter pertaining to John Berger was received this morning. I am pleased to hear you have taken such interest in his case and wish you the best of luck in whatever you can do for him.

“It is one of my duties to visit the condemned men behind the screen, especially where they are member of our church. I have been visiting John on the average of once a week for a long time now. Just yesterday I called on him and had a short visit with him.

“From the very first I have noticed John to be mentally incompetent. He does not act in the normal way. His mind seems to be miles away. When asked a question, he is liable to answer anything that comes to his mind. He oftens remarks that they want to gas him, but that does not seem to deter him in the least. He has lost all interest in things around him or those of the future. He expects to be run out of there soon so he can do extensive traveling. I do not think he is playing off insanity. He is not sane enough for that, at least that is what I think.

“Whatever you can do for John will be appreciated by his good'family. If a commutation is given him, it will be necessary to keep him in cell house five as he is considered a dangerous person. I personally get along with John very well, but have to humor him along and I have never dared to cross him yet. I just do not know how he would act if I did so.”

In compliance with the above motion, the trial court on December 12, 1950, appointed two psychiatrists, ordering them to examine defendant and report their findings as to his sanity or insanity to the court. Thereafter said psychiatrists so appointed, filed with the court December 14, 1950, their separate reports stating that, pursuant to court order, they had examined defendant and found him to be sane. The Court after examining these reports and the files in the case, and after consulting the warden of the Colorado State Penitentiary concerning defendant’s mental condition, found “That the defendant, John J. Berger, Jr., is now sane, and accountable to the law.”

Thereafter, December 15, 1950, defendant filed his petition in this court alleging in substance the circumstances set forth above and prayed that we take original jurisdiction of the case, pursuant to Rule 116, R.C.P. Colo., and that the trial court be ordered to show cause why a jury should not be impaneled to determine whether or not defendant was insane, in accordance with the provisions of Rule 106 (a) (4).

Upon consideration of defendant’s petition to show cause, we ordered that execution be stayed until further order of court; that the record of the proceedings in the trial court be certified to this court; that defendant may proceed as a poor person; that the petition to show cause be filed and docketed in the above entitled cause; and that briefs be filed on behalf of defendant and the people.

Defendant, in demanding a jury trial on the issue of insanity, relies upon section 7, chapter 48, ’35 C.S.A., which provides:

“A person that becomes lunatic or insane after the commission of a crime or misdemeanor ought not to be tried for the offense during the continuance of the lunacy or insanity. If, after verdict of guilty and before judgment pronounced, such person becomes lunatic or insane, then no judgment shall be given while such lunacy or insanity shall continue, and if after judgment and before execution of the sentence, such person becomes lunatic or insane, then in case the punishment be capital, the execution thereof shall be stayed until the recovery of such person from the insanity or lunacy. In all these cases it shall be the duty of the court to impanel a jury to try the question whether the accused be at the time of impaneling insane or lunatic.”

It is contended by defendant’s counsel that no discretion whatever is lodged in the trial court to grant or refuse a jury trial on the insanity issue, and that the mere suggestion of insanity intervening subsequent to death sentence, vests the absolute right of jury trial in defendant under the statute.

This statute has been construed by us in Bulger v. People, 61 Colo. 187, 156 Pac. 800; People ex rel. v. Eldred, 103 Colo. 334, 86 P. (2d) 248; Shank v. People, 79 Colo. 576, 247 Pac. 559. We quote from the opinion in the Bulger case: “It will be observed that both the common law and the statute are specific that when a person becomes insane after conviction of a capital offense, he shall not be executed until his recovery from the lunacy, and under the statute when the fact of insanity exists a jury shall be impaneled to try the question. The statute, however, does not state in what manner the fact of insanity shall, in the first instance, be ascertained and the common law necessarily controls in that regard. Thereunder when insanity in such cases is suggested or alleged the court may determine the condition of the prisoner’s mind by a personal inspection or examination of him, either public or private; by inquiry from attending physicians, or from those around the prisoner who have means of knowledge; and if, after such investigation and inquiry, the judge has no doubt of the prisoner’s sanity he is neither bound to nor should he order an inquisition. 10 Cyc. PI. & Prac., p. 1220; Bonds v. Tennessee, supra, [M. & Y. 143, 17 Am. Dec. 795]; Nobles v. State [Georgia], [168 U. S. 398, 42 L. Ed. 515, 18 S. Ct. 87.]

“It would, therefore, seem that the sole modification of the common law by the statute is to require the court in cases where it believes that defendant is insane, or, perhaps, where it has doubt of his sanity, to impanel a jury and try the question. Buswell on Insanity, §461.

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The trial court in the instant case adopted the last two of the above mentioned methods for determining the condition of defendant’s mind, viz., he appointed two qualified physicians specializing in the field of psychiatry to examine defendant and report their findings to the court. In addition, he consulted the warden of the penitentiary, who, by reason of his position, is possessed of all “the means of knowledge” necessary to express a competent opinion on his prisoner’s sanity. As a result of such investigation, the trial court determined, “That the defendant * * * is now sane,” in which event, as said in the Bulger case, supra, “He is neither bound to nor should he order an inquisition.”

The unsoundness of the position of counsel for defendant is clearly demonstrated by the opinions in Solesbee v. Balkcom, 339 U. S. 9, 70 Sup. Ct. 457, 94 L. Ed. 604; and Nobles v. Georgia, supra, cited in the Bulger case. In the latter case it was said:

“From these considerations it follows that the only question which we are called upon to determine is whether, after a regular conviction and sentence, a suggestion of a then existing insanity is made, it is necessary, in order to constitute due process of law, that the question so presented should be tried by a jury in a judicial proceeding surrounded by all the safeguards and requirements of a common-law jury trial, and even although by the state law full and adequate administrative and quasi judicial process is created for the purpose of investigating the suggestion. Without analysis of the contention, it might well suffice to demonstrate its obvious unsoundness by pointing to the absurd conclusion which would result from its establishment. If it were true that at common law a suggestion of insanity after sentence, created on the part of a convict an absolute right to a trial of this issue by a judge and jury, then * * * it would be wholly at the will of a- convict to suffer any punishment whatever, for the necessity of his doing so would depend solely upon his fecundity in making suggestion of insanity, to be followed by trial upon trial. * * * ”

The subject here considered is thoroughly treated in an annotation in 49 A.L.R. 804, from which we quote: “It is generally recognized that to permit convicted persons to arrest the execution of the sentence imposed upon them, by demanding as a legal right an inquisition into their mental condition, would be tantamount to granting them the privilege of thwarting the administration of criminal justice for an indefinite term. Hence persons in confinement awaiting the execution of the death penalty have no legal right, except where such right is conferred by statute, to have an inquisition into their mental condition. The initiating of such a proceeding is within the discretion of the court or executive having jurisdiction in such matters.”

We conclude that the trial court, in finding defendant sane and in refusing to grant a jury trial on the question of his sanity, did not exceed its jurisdiction or abuse its discretion; accordingly the rule to show cause is hereby discharged. It is further ordered that the original judgment and sentence of the trial court be executed within the week ending June 16, 1951.

Mr. Justice Moore, Mr. Justice Holland and Mr. Justice Hilliard dissent.