IN an information filed in the district court of Washington county, Paul J. Schneider was charged with the murder of one Frank J. Ford, on September 20, 1947. Defendant was indigent, and counsel was appointed to defend him. Upon arraignment, defendant entered a plea of not guilty, and not guilty by reason of insanity at the time of the alleged commission of the crime and since.
Upon trial the jury returned a verdict of murder in the first degree and fixed the penalty at death. To review the judgment entered upon that verdict, defendant prosecutes a writ of error.
It appears from the record that upon the entry of the plea of not guilty by reason of insanity at the time of the alleged commission of the crime and since, the court entered an order committing defendant to the State Hospital at Pueblo, Colorado, for observation for the period of a month. Thereafter, and on the 6th day of December, 1947, three of the hospital physicians reported to the court that in their opinion Schneider was not insane at the time of their examination nor was he insane at the time of the alleged commission of the crime.
The case was set for trial on January 19, 1948, at the conclusion of which, on the 23rd day of January, 1948, the jury returned its verdict as noted. Within the time allowed by the court, counsel for defendant filed a motion for a new trial, alleging ten errors committed during the course of the trial. The motion for a new trial was argued on February 13, 1948, at the conclusion of which the court entered an order overruling the motion *Page 545 and pronounced the judgment sought to be reversed here.
The record discloses the following evidence on behalf of the people: On the night of September 20, 1947, Frank J. Ford was operating a filling station owned by himself and son, located on Brighton Boulevard in Denver. Ford usually returned from the filling station at about 11 o'clock P.M., and, when he failed to return at the usual time, Mrs. Ford became alarmed and notified police. Some officers, in response to her call, went to the filling station, found it open and Ford's car there, but Ford was gone, and all of the money in the cash drawer had been removed therefrom, with indications that it had been rifled. From the night of September 20, 1947, nothing was seen or heard of Mr. Ford until his body was discovered in Washington county more than thirty days later.
On the 20th of September, 1947, Ford had in his possession as a cash item a check in the sum of $40.57, payable to the order of Elmer Bloom and drawn on the Central Bank and Trust Company by Reed Green Planing Mill, which check had been cashed by the payee at Ford's Service Station on the date above mentioned. On October 8, 1947, the Central Bank and Trust Company received the Bloom check for collection from the Pikeville National Bank of Pikeville, Kentucky, bearing the endorsements of Paul Bloom and Paul J. Schneider. The Central Bank and Trust Company honored the check and remitted the amount thereof, less a service charge, to the Kentucky bank. It was known by the officers that the Bloom check was in Ford's possession on September 20, at the time of his disappearance. The Kentucky police officers, cooperating with the Denver police and accompanied by an agent from the Federal Bureau of Investigation, who had theretofore been investigating Schneider's activities pertaining to a reportedly stolen automobile, apprehended Schneider when he called at the Pikeville National Bank to receive the *Page 546 proceeds of the Bloom check. Upon being interrogated, he denied all knowledge of Ford and claimed that the check had been given to him by a party in Denver as the purchase price of a radio. Subsequently, and on the morning of October 22, 1947, defendant made a full and complete confession of all of his activities in and around Denver on September 20, 1947, to an agent of the Federal Bureau of Investigation and the Chief Deputy Sheriff of Pike county, Kentucky. Subsequently he repeated his confession to Captain James Pitt and Detective Joe Holindrake, police officers from Denver, and several citizens from Pikeville, Kentucky. After defendant was returned to Denver, and on October 25, 1947, his confession was repeated in the presence of Captain Pitt, Detective Holindrake, and Sergeant Duffy. All of the officers testified that defendant's confession was free and voluntary, and this is undisputed.
Defendant's confession, as made to these various officers on different occasions, and, so far as it pertains to defendant's activities in Denver and subsequent thereto, is substantially as follows:
Defendant stated that the day of Mr. Ford's disappearance, he had arrived in his car in Denver sometime right after noon. He drove around Denver for several hours, looking for a likely place to "stick up," and finally decided to leave Denver to go into Nebraska. After dark he drove out Route 6 and passed a filling station and shortly afterward turned around and came back to the filling station. When he returned some of the lights had been turned out, and Ford, who was operating the station, was evidently closing. When he drove in Ford came out, whereupon he pulled his gun on Ford and told him he wanted his money and didn't want any trouble with him. He then got out of the car, went into the office, took Ford's billfold and what money was in the cash register. He wrapped the billfold and money in a cloth found in the filling station, took Ford out and ordered him to drive the car out on Route 6. After thus *Page 547 driving a short distance, he ordered Ford to stop the car, and he then put him in the trunk, and continued to drive out on Route 6. After driving some distance he stopped at an "all-night" filling station to get some gasoline, but he had told Ford previously that he intended to stop for gas and that Ford was to give no alarm or make any outcry while he was stopped. After having driven approximately 100 miles from Denver, the headlights of his car shone upon a bridge abutment, or the bridge itself, and he slowed down and stopped. Thereafter he drove to the right of the highway on a sort of a lane or small road for a distance of about two car lengths, when he again stopped, alighted from the car, opened the trunk, pulled Ford out, and ordered him to take the rag in which the money and billfold had been placed and blindfold himself, then told him to walk down a rather steep ditch or creek bank under a bridge so that he could not be seen from the highway, and while there tried to make up his mind what disposition to make of Ford because, as he said, he had never harmed a man before and he didn't know just what to do with him. After thinking it over for a time he decided he would hit Ford over the head with an iron bar which he had in his possession and which was about the circumference of a nickel. He carried out his decision, and in doing so used both hands. Ford fell to the ground and remained down for a short time, but then arose and sort of staggered toward defendant. The blindfold at that time had fallen from Ford's eyes so defendant decided to take him away from that place. At this time a truck was coming from one direction and a car from the opposite direction. He told Ford to lie down so the lights of the car or truck would not shine on him, and Ford got down on all fours. About the time the truck went by Ford suddenly raised up, picked up a rock or hard piece of dirt, and struck defendant with it, whereupon he fired at Ford, who started to run. He then fired another shot at Ford, after which he saw him no more, *Page 548 but heard him running away. He backed his car out onto the highway and proceeded easterly.
Defendant first confessed the murder of Ford on the morning of October 22, 1947, to officers in Pikeville, Kentucky, and at the time, and as a part of his confession, he related two similar crimes which he had committed in Michigan subsequent to September 20. This entire confession was subsequently repeated to other officers as we have noted. According to the record, Schneider's confession of the other similar crimes is substantially as follows:
On the night of October 7, 1947, he drove from Pikeville, Kentucky, to Detroit, Michigan. As he was nearing Detroit he decided he would pull a "stick up" of another service station. He passed a station probably around 10:30 that night near Detroit and noticed a car parked there getting gas, so he continued on his way and went into Detroit. There he spent approximately an hour and then returned to this station. He drove into the station, where one attendant was on duty. He told the attendant, "this is a stick up," and leveled his gun at him, saying that he wanted his money and he didn't want any trouble with him. He then went into the office, obtained money and other valuables there, and told the attendant to turn off the lights so that no one would drive in while the "stick up" was in progress. The attendant replied that if he turned off the lights, another man on duty would be awakened. Defendant then deciding that he would have to take the attendant with him, placed him in the trunk of the car and locked it. He proceeded off the main highway upon which the station was located and drove for several miles. He never had been in that vicinity before and was unable to give any exact description of the roads which he traveled. He drove off the main highway, pulled the attendant out of the trunk of the car, intending to tie him up and leave him, but the attendant resisted being tied up, and he struck him across the back of the neck with an iron rod. The *Page 549 attendant fell to the ground, and he struck him a second time, after which he pulled the body off the road for some distance, placing a part of a tree trunk over it and left it there. He then drove back toward Detroit and entered a filling station near that city. At this time, as he stated, he had no intention of "sticking up" this second station, but was going to buy a used tire; however, while there he decided he would make the "stick up." He pulled a gun on the attendant and told him it was a "stick up." This attendant he also placed in the trunk of his car, drove off of the highway for a distance of several miles, where he took the second service station attendant from the trunk, but decided that it would not be wise to release him, because if he did so he would furnish the authorities with information which would implicate him with the previous "stick up" near Detroit. For this reason alone, and to prevent the furnishing of this information, he decided that he would do away with this man, whom he hit over the head with an iron rod, left the body, got into his car, and continued on into Detroit. He stated that he knew that he had killed the second attendant.
Defendant, in his confession, described the location of the bridge on the highway where he struck Ford and where he fired the shots, and from this description the officers were able to locate Ford's body in an enclosure some 200 feet from the highway, practically hidden from it by weeds. The body was in a highly decomposed condition, and, because thereof, an autopsy did not disclose positive evidence of a would caused by a firearm, but did disclose that death was caused by a concussion and basal skull fracture. The physician who performed the autopsy testified that the injury inflicted by the blow on the head caused Ford's death.
At the time of defendant's arrest he had on his person a 32 caliber Savage automatic pistol with ten cartridges and a clip, which pistol he carried in a shoulder holster. He had in his possession also a tire gauge which he *Page 550 admitted belonged to, and by other witnesses was identified as one owned by, Ford, and a copy of a Denver newspaper, dated September 21, which he stated he had purchased for the purpose of learning whether there was any news item therein with reference to the Ford "hold up." He had other articles which belonged to Ford and which, according to the evidence, were in Ford's possession at the time of the "hold up." At or near the bridge on the highway where the shots were fired at Ford, was found a 32 caliber shell which an expert testified was fired in the pistol found on defendant at the time of his arrest in Pikeville, Kentucky.
Defendant did not take the witness stand, but his brother Edward and a sister Dorothy were called in his behalf. They testified to injuries suffered by him in accidents during his childhood, and as to others received by him in August, 1947, in an auto accident. According to these witnesses, in the auto accident occurring in August, defendant suffered a fractured skull and his arms and hands were lacerated, and they stated that neither of them was permitted to see him in the hospital for the first three days he was there. They also testified that defendant stated to them that he did not know how the August auto accident happened but that apparently he went through the windshield and laid on the edge of the highway for approximately six hours. They further testified that he had some injury to his head, and that, as a result of this injury, defendant seemed nervous and upset, and stated to them that his head hurt him and that he was dizzy.
The people called the physician who attended defendant for the injuries incurred in the August, 1947, auto accident, who testified that upon defendant's admission to the hospital he was suffering from shock, but that there were no complications whatever, and the only treatment required was such as would prevent infection in any of the lacerations. This physician denied the testimony of defendant's brother and sister, that no visitors *Page 551 were permitted to see defendant for the first three days while he was in the hospital, but stated that visitors were permitted from the time he was brought there. At the time defendant was discharged he was in good physical condition, with no brain or other complications.
The three physicians who observed defendant at the State Hospital at Pueblo for a thirty-day period to determine whether he was insane at the time of the alleged commission of the offense and subsequent thereto, gave, as we have noted, their opinion that he was not at the time of the trial insane and was not insane at the time of the alleged commission of the crime.
The jury returned a verdict, as we have noted, finding defendant guilty of murder in the first degree and fixing the penalty at death.
There are five assignments of error, only one of which, however, is seriously urged, viz., that relating to the admission of defendant's entire confession and particularly the part thereof in which he confessed the commission of the two crimes in the state of Michigan.
Concerning evidence of the Michigan crimes, counsel for defendant tendered the following instruction, which the trial court refused to give:
"Certain testimony concerning other alleged crimes committed by the defendant has been introduced in this case.
"The law requires that only evidence which tends to prove a material element of the crime charged in the information be admitted in evidence.
"The testimony concerning said other alleged crimes shows that said crimes had nothing whatsoever to do with the particular crime charged in the information, and, therefore, said testimony has no probative value whatever.
"You are, accordingly, instructed to disregard entirely all evidence concerning said other crimes."
All the evidence with reference to the crimes committed by defendant in Michigan was offered by the people *Page 552 and admitted by the court "only for the purpose of showing the intent, the scheme, plan and design and motive of the defendant in the commission of the Colorado crime; that is, this testimony which will come now will be offered simply for that purpose." When defendant freely and voluntarily confessed that he murdered Ford on September 20, 1947, in the same confession and at the same time he freely and voluntarily confessed that he had subsequently, and a short time thereafter, committed two similar crimes in the state of Michigan, and that the Michigan crimes were perpetrated in substantially the same manner and for a like purpose as was that committed in the murder of Ford. When evidence of the Michigan crimes was offered as part of one confession, defendant's counsel objected thereto as irrelevant and immaterial and also as prejudicial and inflammatory. The court, in overruling the objection, stated that the court would instruct the jury as to the purpose of the admission of the testimony of other crimes and the limited use that it might make of such evidence in its deliberations. The instruction given by the court and to which defendant objected read:
"You are instructed that the defendant is being tried solely upon the charge alleged in the information.
"While evidence has been admitted in this case of two other crimes alleged to have been committed by the defendant in the state of Michigan, such evidence was admitted solely for the purpose of showing intent, motive, plan, or design, of the defendant in the alleged commission of the act charged in the information. Such evidence is to be considered by you for the indicated purpose only, and under no circumstances are you to consider it for any other purpose whatsoever."
[1] Counsel for defendant rely upon the general rule that evidence is inadmissible which shows, or even tends to show, that the defendant has committed a crime wholly independent of the offense for which he is on trial, but they also recognize that there are many *Page 553 exceptions to this rule. In Colorado we have held that some of the exceptions to the general rule, equally well-settled as the rule itself, are that it is competent to show that defendant on trial for a specific offense has participated in similar crimes in order to establish either motive, intent, plan, design or scheme, and to establish defendant's identity, and such evidence is not inadmissible merely because it establishes that defendant is guilty of another crime. Warford v. People, 43 Colo. 107,96 Pac. 556; Jaynes v. People, 44 Colo. 535, 99 Pac. 325;Hillen v. People, 59 Colo. 280, 149 Pac. 250; Bacino v.People, 104 Colo. 229, 90 P.2d 5; Rogers v. People,104 Colo. 594, 94 P.2d 453; Coates v. People, 106 Colo. 483,106 P.2d 354; Torbert v. People, 113 Colo. 294,156 P.2d 128; Paine v. People, 106 Colo. 258,103 P.2d 686; Williams v. People, 114 Colo. 207,158 P.2d 447; Perry v. People, 116 Colo. 440,181 P.2d 439.
[2] The general rule for which defendant contends is inapplicable in the present case. Here, defendant, so far as is disclosed by the record, made a free and voluntary confession in which he not only admitted the murder of Ford, with which crime he was charged, but in the same confession, at the same time, and as an integral part thereof, he admitted that he had been guilty of similar robberies, kidnappings and murders subsequent to the one for which he was to be tried. Here the only question for our determination is whether the entire confession was properly admitted, or whether only that part directly pertaining to the Ford murder was admissible. In determining this question we have read and carefully considered all decisions called to our attention by defendant as well as many others. We find that there is a great diversity of opinion as to the admissibility of an entire confession, but have concluded that in this and some other jurisdictions the question has been determined adversely to defendant's contention.
In Reppin v. People, 95 Colo. 192, 34 P.2d 71, defendant entered a plea of guilty of murder, and, upon *Page 554 the entry of this plea, the sole questions for the jury's determination were the degree of murder and the penalty to be inflicted in the event it should determine that the admitted crime was murder in the first degree. Reppin, a minor, made a confession, evidence of which was introduced at the trial. In his confession he admitted some participation in a "stick-up" in New Jersey and also acknowledged a "vision" of some plan or scheme with reference to the organization of a "gang" for the purpose of holding up the Broadmoor Hotel in Colorado Springs, and also an abandoned plan in connection with the "hold up" of the "Pot and Spigot" in Colorado Springs. He also admitted the burglary of a business establishment in Colorado Springs, and his participation in several other holdups there. These statements, made by defendant in his confession, were admitted in evidence, and when he took the witness stand in his own behalf, in answer to questions propounded him by his appointed counsel and the deputy district attorney, made substantially the same statements as those contained in his confession. Mr. Justice Butler delivered the opinion of the court reversing the judgment pronounced on the verdict of the jury, which found the defendant guilty of murder in the first degree with the death penalty attached. The court recognized the rule announced in Warford v. People, supra, Hillenv. People, supra, and Jaynes v. People, supra, but observed that the trial court, although not requested so to do, failed to instruct the jury as to the purpose and limitation of the admitted evidence relating to other offenses, and with reference thereto said:
"The court erred in permitting the chief of police to testify, over the defendant's objection, to the defendant's statements with reference to his `vision' concerning a holdup at the Broadmoor hotel, and those with reference to the Pot and Spigot incident. No holdup occurred, nor was one even attempted. That testimony does not come *Page 555 within any exception to the rule excluding evidence of other offenses. The error was prejudicial and reversible.
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"The offenses committed in El Paso county were of the same character as the crime charged; they were sufficiently connected in point of time to meet the requirements of the law; and the same motive may reasonably be imputed to them all. The evidence thereof bore uponthe intent with which the defendant shot Regan and themotive that prompted the act, and was admissible, butonly for the purpose of determining such intent andmotive. [citing cases] Such evidence was not rendered inadmissible by the fact that the trial was upon a plea of guilty instead of upon a plea of not guilty. It cannotsuccessfully be contended that as a plea of guilty raisesno issue of intent, evidence of other offenses is not admissibleto show intent. If such were the case, evidence of the homicide itself would not be admissible upon a plea of guilty, because such a plea admits the homicide. That, of course, is not the law. When such evidence would be admissible where the plea is not guilty, it is admissible where a defendant pleads guilty and evidence is submitted to a jury under section 6665, supra [section 32, chapter 48, '35 C.S.A.].
"Although such evidence was admissible for a limitedpurpose only, the court did not, either when the evidence was received or in the instructions to the jury, limit it to the purpose for which it was admitted and for which alone it was admissible.
"We have called attention to the grave danger that evidence of other offenses may be misapplied by the jury to the injury of the accused, and have said that when such evidence is offered the district attorney should state the purpose for which it is offered, and that when it is received the trial court should limit it to the purpose for which it is admitted. True, in this case no request to so limit it was made by appointed counsel for the defendant, and we have not held that in such *Page 556 circumstances the court's failure so to limit the evidence is reversible error. But we have not had occasion heretofore to consider the effect where, as here, the defendant is a minor.
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"In a homicide case, where the question is whether a minor defendant shall live or die, it should be, and we hold that it is, the duty of the court, without request, to explain to the jury the purpose for which evidence of other offenses is admitted, and to direct the jury to consider it for that limited purpose only. The failure ofthe court in this respect in the present case was highlyprejudicial to the defendant and was reversible error." (Italics ours)
In the instant case evidence of other similar crimes, which defendant confessed he had committed, was offered and admitted as part of his confession; the district attorney, at the time the evidence was offered, stated the purpose for which it was offered, and the trial court in its instructions to the jury specifically limited the evidence to such purpose.
In Williams v. People, supra, defendant was found guilty of murder of the second degree and of concealing the death of a bastard. She had made a confession in which she stated that there were two children, other than the one named in the information, which had been born to her, and that she had drowned all three of the children and had made the same disposition of their bodies. In other words, in her confession defendant admitted the murder of two children other than that of the one charged in the information upon which she was to be tried. Her counsel objected to the admission of the evidence contained in defendant's confession relating to the death of the two other children. With reference to the admissibility of this evidence, we said:
"Error is urged in the admission of evidence of other offenses. Our attention is particularly called to four objections or motions with regard to such testimony *Page 557 made in behalf of defendant during the trial. The first of these was a motion to strike from the evidence of the assistant deputy coroner testimony relative to any child other than the one named in the information. There had been repeated evidence as to the finding of the three bodies by other witnesses without objection and this evidence was so intermingled that it was impossible to prove the case relied upon without also bringing out the facts as to the finding of the other bodies. This motion was properly denied. The second was an objection to testimony of the city pathologist following his answer that he had occasion to examine babies' bodies brought to the morgue; that `two he just looked at externally; a third he made an autopsy on.' Then the question was asked, `Describe the condition of that body,' and this was objected to by defendant's counsel. There was no merit to that objection. The third was an objection tothe admission of defendant's written confession, and thefourth was a motion that the confession be withdrawnand the jury instructed to disregard it, both on theground that the confession involved three separate allegedcrimes. These were without merit, under the rulethat `where the confession contains a mention of anothercrime committed by the accused,' his `allusion to it in hisconfession may and must be listened to if it is a part ofthe one entire statement confessing the crime charged atbar.' Wigmore on Evidence (3d ed.), vol. VII, p. 497, § 2111 (e).
"Going beyond the specific objections made by counsel, from a careful study of all the record the only evidence to which counsel can refer as involving other crimes is that concerning the finding and condition of the bodies of the two babies other than the one upon which the prosecution was based. No attempt was made to charge or prove any criminal intent of defendant in connection with the two older bodies. In addition to the fact that this evidence was so intermingled that it was impossible to make proof regarding the finding of the *Page 558 one body without showing the finding of the other two,the evidence concerning the two earlier babies was admissableotherwise in proof of deliberation in the crimecharged, rather than the frantic hysteria of tragedy andinexperience, and also in proof of a preconceived planof disposing of defendant's offspring in case of pregnancyresulting from her amours.
* * *
"Error is urged in that the court waited until its general charge to instruct as to the application of evidence of the finding of the other bodies to the purpose for which it was admitted, instead of so instructing immediately upon its admission.
"In its general charge the court properly instructed the jury as to the limited purpose in which this evidence was received. No motion was made by defendant from time to time as the evidence was received that the court instruct on the application of such evidence to the purpose for which it was admitted. Generally it is advisable upon tender of such instruction by defendant to give it at the time; however, there must be some presumption of intelligence of the jury and the proper instruction given at the end of the case rather than at the time the evidence is received is not prejudicial error [citing cases]." (Italics ours)
From a careful consideration of our decision in Reppinv. People, supra, and Williams v. People, supra, we are persuaded that in this jurisdiction when a defendant charged with a criminal offense, even though that offense be murder, makes a free and voluntary confession, either oral or written, in which he admits his guilt of the offense charged, and in the same confession and at the same time admits that he participated in and committed other similar offenses, such confession is admissible in evidence and is relevant and may be considered by the jury as bearing upon the motive, intent, plan, scheme and design to establish the commission of the crime charged. When such a confession is offered in its *Page 559 entirety, the district attorney should explain the purpose for which the evidence of offenses other than that charged is offered, and the court should instruct the jury as to the purpose of the evidence and that it is limited in its consideration of such other offenses. If this procedure is followed, no error is committed. Robertsv. People, 11 Colo. 213, 17 Pac. 637; Silliman v.People, 114 Colo. 130, 162 P.2d 793; People v. Rogers,192 N. Y. 331, 85 N.E. 135; Gore v. People, 162 Ill. 259,44 N.E. 500; People v. Hurry, 385 Ill. 486, 52 N.E.2d 173;Robinson v. U.S., 63 F.2d 147; State v. Dalton,43 Wash. 278, 86 Pac. 590; Commonwealth v. Gable,323 Pa. 449, 187 Atl. 393; Commonwealth v. Hipple, 333 Pa. 33,3 A.2d 353; State v. Knapp, 70 Ohio St. 380,71 N.E. 705; Commonwealth v. Wood, 142 Pa. Sup. Ct. 340,16 A.2d 319; State v. Palko, 122 Conn. 529, 191 Atl. 320;State v. Kelly, 16 N.C. 627, 6 S.E.2d 533; Grovev. State, 185 Md. 476, 45 A.2d 348; 2 Bishop's New Criminal Procedure, p. 1059, § 1241; 7 Wigmore on Evidence (3d ed.), p. 497, § 2100 (3); 2 Wharton's Criminal Evidence (11th ed.), p. 1012, § 606; 20 Am. Jur., p. 425, § 488.
Counsel for defendant were appointed by the trial court, and have continued to represent him here. They have been assiduous and untiring in his behalf, and have safeguarded his every right under the law. They afforded their client every protection. We, too, have carefully examined the record and have considered all objections made during the trial as well as the assignments of error here, and find that defendant had a fair and impartial trial, and that his guilt was established beyond any doubt. It is the law that one who commits murder, as did defendant here, must suffer the penalty prescribed by the jury.
The judgment accordingly is affirmed, and it is ordered that it be executed during the week commencing December 12, 1948. *Page 560
MR. JUSTICE HILLIARD and MR. JUSTICE HAYS dissent.