
345 P.2d 1054 (1959)
Leroy Adolph LEICK, Plaintiff in Error,
v.
PEOPLE of the State of Colorado, Defendant in Error.
No. 19069.
Supreme Court of Colorado, En Banc.
November 5, 1959.
Special Concurring Opinion November 16, 1959.
Rehearing Denied November 23, 1959.
Charles Ginsberg, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrison, *1055 Asst. Atty. Gen., for defendant in error.
KNAUSS, Chief Justice.
This writ of error is prosecuted by plaintiff in error, herein referred to as defendant, to review a statutory proceeding under which is raised the issue of his sanity subsequent to conviction of first-degree murder and prior to the infliction of the death penalty decreed by the jury in the criminal case.
For reversal defendant contends that C. R.S. '53, 39-8-6(4) is unconstitutional in that the operation thereof deprives him of due process of law; that the "reasonable doubt doctrine applicable in criminal cases should apply to this statutory civil proceeding and that the trial court erred in not advising the jury concerning the result of their verdict." It is also urged that the trial court erred in not declaring a mistrial when the district attorney in his closing argument stated that a witness testified that defendant was "feigning" insanity.
We hold that the statute under which defendant seeks relief from the sentence imposed upon him is constitutional. The manner of determining the sanity of a defendant after conviction and before execution of sentence is, in the words of Nobles v. State of Georgia, 168 U.S. 398, 18 S.Ct. 87, 91, 42 L.Ed. 515, "* * * purely a matter of legislative regulation" and, therefore, subject to such restrictions as the legislature in the exercise of its wisdom may see fit to impose. At the outset of this proceeding counsel for defendant insisted upon his right to open and close the argument and admitted that the burden of proof was on defendant to establish his insanity.
In Solesbee v. Balkcom, 339 U.S. 9, 70 S.Ct. 457, 458, 94 L.Ed. 604, it was said: "Postponement of execution because of insanity bears a close affinity not to trial for a crime but rather to reprieves of sentences in general. The power to reprieve has usually sprung from the same source as the power to pardon. * * * Recently we have pointed out the necessary and inherent differences between trial procedures and post-conviction procedures such as sentencing. Williams v. People of State of New York, 337 U.S. 241, 69 S.Ct. 1079 [93 L.Ed. 1337]. In that case we emphasized that certain trial procedure safeguards are not applicable to the process of sentencing. This principle applies even more forcefully to an effort to transplant every trial safeguard to a determination of sanity after conviction. As was pointed out in the Nobles case, supra, to require judicial review every time a convicted defendant suggested insanity would make the possibility of carrying out a sentence depend upon `fecundity in making suggestion after suggestion of insanity.' * * * The heart of the common-law doctrine has been that a suggestion of insanity after sentence is an appeal to the conscience and sound wisdom of the particular tribunal which is asked to postpone sentence."
Mr. Justice Frankfurter in Solesbee v. Balkcom, supra, said: "Since it does not go to the question of guilt but to its consequences, the determination of the issue of insanity after sentence does not require the safeguards of a judicial proceeding. See Ng Fung Ho v. White, 259 U.S. 276, 284-285, 42 S.Ct. 492, 495, 66 L.Ed. 938."
In Nobles v. State of Georgia, supra, it was held that in the absence of sufficient reasons for holding a full hearing into the sanity of a defendant sentenced to death, a state judge may deny such a hearing consistent with due process.
The Colorado statute involved is far more liberal and affords defendant greater safeguards than those mentioned in the cases cited, all of which have been sustained as constitutional.
In the instant case the defendant submitted no instruction directing the jury to determine the issues "beyond a reasonable doubt." The burden being upon him, and he having voluntarily assumed it, it would be illogical to invoke the "reasonable doubt" theory and shift the burden to the People, or place on defendant a greater burden than prevails in civil cases. At the very outset *1056 of this case the jury was informed by the court, with the consent of counsel, of the judgment and sentence in the criminal case. The trial judge said: "The defendant has heretofore been convicted of the crime of murder and death penalty has been imposed. Since the judgment was pronounced on the verdict, the defendant, within his rights, and pursuant to the statutes of the state of Colorado on that behalf enacted, filed a petition herein, wherein it is alleged that subsequent to the judgment as rendered in the case, the defendant has become and is now insane. That matter is the sole issue that is to be passed upon by the jury. The previous conviction and the imposition of sentence has nothing to do whatsoever with this case and should not have anything to do whatsoever with your deliberations in this case."
The sole and only issue to be determined by the jury in this proceeding was the defendant's sanity or lack thereof occurring subsequent to conviction and sentence in the criminal action. How could this be decided except upon presentation of competent evidence? Certainly advising the jury of the effect their verdict might have under the statute concerning the status of defendant subsequent to a verdict finding him insance, could throw no light on the sole issue which this jury was called upon to determine. Even in criminal cases the jury is instructed that it has nothing to do with the punishment to be administered in the event of a conviction. This being a civil case, and assuming as we must that this carefully selected jury was possessed of common knowledge and horse sense, it is idle to urge that they might think defendant would be "turned loose on society" in the event he was found insane. Here we have a competent jury, painstakingly selected and in no wise challenged, sworn to perform its duty and instructed by a careful and learned judge that in arriving at its verdict the jury "should consider only the evidence given upon trial." Its solemn verdict under this record cannot be disregarded.
The record discloses that when questioned by the assistant district attorney, Dr. MacDonald was asked:
"Q. Isn't it a possibility he (defendant) could be making these statements for some other purpose? A. That is quite possible.
"Q. Like what purpose? A. Well, for the purpose of appearing insane. I think this would be an understandable psychological reaction, under the circumstances.
"Q. Now, Doctor, the opinion you have stated to the Court and Jury, is that based entirely upon your personal observation and examination and nothing else? A. It is entirely based upon that."
In his closing argument the District Attorney, referring to the evidence given by Dr. MacDonald, said:
"* * * this gentleman purely and methodically, told you what happened and gave you the results of the tests on the things that were not there. He said he is feigning insanity. I say, again * * *
"Mr. Ginsberg: I challenge that statement. That is entirely untrue.
"Mr. Keating: Well, let's read the last statement of the witness, if you want to, or if the Court cares to.
"Mr. Ginsberg: That is a very definite misstatement of fact.
"The Court: The Jury will recall what he said."
Nowhere in the record does it appear that counsel for defendant then asked the trial court to declare a mistrial on account of the statement made by the District Attorney. On ruling on the objection, the trial court said: "The jury will recall what he said." In view of the record we see no prejudicial error of which defendant may successfully complain.
In its instructions the trial court advised the jury that "the opening statements and the arguments of counsel and the remarks of the court and of counsel are not evidence." *1057 This in addition to the instruction that the jury in determining the facts should consider "only the evidence given upon the trial."
It is now urged that a mistrial should have been announced because of this statement by the District Attorney, who paraphrased the statement of Dr. MacDonald.
"Whatever is fairly deducible from the testimony comes within the legitimate sphere of argument to the jury." Henwood v. People, 57 Colo. 544, 143 P. 373, 382. In the Henwood case, this court said: "Jurors must be supposed to have some capacity to distinguish between the fustian of partisan oratory and the rational analysis of testimony."
A clear statement of the rule is set forth in 23 C.J.S. Criminal Law § 1093, p. 546, as follows:
"It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and if he does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Counsel may draw and state to the jury his own conclusions from the law and the testimony, provided he does not misstate the testimony, nor facts as to which there is no testimony."
Even before Dr. MacDonald was called, Dr. Tepley, an expert witness called by defendant, testified: "If he (defendant) is putting on a showif he is actinghe would have to be a better actor." Counsel for defendant in his closing argument told the jury, when speaking of the testimony of Dr. MacDonald: "On redirect examination Mr. Mueller [Assistant District Attorney] said to him: Dr. MacDonald, isn't it possible he might be feigning? or something to that effect and the doctor said it was possible."
A careful and competent trial judge presided at this trial, and a solemn verdict was returned by an unbiased jury. We have examined the record with care and find nothing therein which enured to the prejudice of defendant or which could be denominated reversible error. Accordingly the judgment is affirmed.
MOORE, HALL and FRANTZ, JJ., dissent.
HALL, Justice (dissenting).
I respectfully dissent from the majority opinion.
During the trial, Dr. MacDonald was called as a witness for the People to testify as to the defendant's then mental condition sane or insane. He expressed it as his opinion that the defendant was sane. After describing certain acts and conduct of the defendant, the witness stated:
"* * * all these things are certainly peculiar and odd, but they are not consistent with the picture of a true mental disorder.
"Q. Isn't it a possibility he could be making these statements for some other purpose? A. That is quite possible.
"Q. Like what purpose? A. Well, for the purpose of appearing insane. I think this would be an understandable psychological reaction, under the circumstances."
When we consider the questions and answers together, it is at once apparent that the witness only stated that it is "quite possible" defendant's statements were made "Well, for the purpose of appearing insane."
In his closing argument, the district attorney, addressing the jury, called to their attention the qualifications of Dr. MacDonald, the contacts which he had with the defendant, and his opportunities for observing his conduct, and then stated, referring to Dr. MacDonald:

*1058 "He said he is feigning insanity."
After this statement was made the record discloses the following:
"Mr. Ginsberg: I challenge that statement. That is entirely untrue.
"Mr. Keating: Well, let's read the last statement of the witness, if you want to, or if the Court cares to.
"Mr. Ginsberg: That is a very definite misstatement of fact.
"The Court: The Jury will recall what he said.
"Mr. Keating: Again I say, gentlemen, you heard his testimony. You draw your conclusion from his demeanor on the stand and
"Mr. Ginsberg: May it please your Honor, at this time, I want to make a record. I want to make a record that counsel has deliberately made a misstatement of fact, known by him to be a misstatement, for the purpose of prejudicing this Jury. I take exception thereto, and I will ask that the Jury be instructed to disregard his statement.
"Mr. Keating: Which, of course, I deny, if the Court please.
"The Court: The objection will be overruled. You may proceed."
Indeed it is unfortunate that the district attorney made this bald statement of fact clearly contrary to the record. Equally unfortunate that the trial judge, when defendant objected and requested that the jury be instructed to disregard the statement, overruled the objection and made no effort to correct the misstatement. Such failure of the trial court may well have been considered by the jury as adding verity to the misstatement and conduct of the district attorney. The offensive statement made by the district attorney to the jury was not true it was false, though in all probability not intentionally so.
To state that parties in litigation are entitled to a fair trial is only to state the obvious. A fair trial means fair at all stages of the proceedings. In my opinion fairness and falseness cannot coexist; one is the antithesis of the otherfalseness precludes fairness.
Problems presented by misconduct on the part of district attorneys in presenting evidence, argument and other matters during the course of trial proceedings are not new to trial courts and courts of review. Such problems are presented much too often. The problem in this case should never have arisen.
It is argued that even though the statement made was not literally true, yet no prejudice arose therefrom. I doubt if the jury's verdict would have been any different had the statement not been madeI doubt, I do not know; and I decline to sanction the taking of a human life where the basis for so doing is predicated in whole or in any part on conjecture.
My views are well expressed in State v. Reeder, 46 Wash.2d 888, 285 P.2d 884, 886, a case in which a murder conviction was reversed because of misconduct of the prosecuting attorney, where the court said:
"* * * We realize that attorneys, in the heat of a trial, are apt to become a little over-enthusiastic in their remembrance of the testimony. However, they have no right to mislead the jury. This is especially true of a prosecutor, who is a quasi-judicial officer whose duty it is to see that a defendant in a criminal prosecution is given a fair trial. * * *"
From Hurd v. People, 25 Mich. 405, the court quotes:
"`Unfair means may happen to result in doing justice to the prisoner in the particular case, yet, justice so attained is unjust and dangerous to the whole community.'"
and continues with the following from State v. Montgomery, 56 Wash. 443, 105 P. 1035, 1037, 134 Am.St.Rep. 1119:
"`* * * The safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of *1059 public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for. Their devotion to duty is not measured, like the prowess of the savage, by the number of their victims.'"
For the reasons above stated the judgment should be reversed and a new and fair trial had.
MOORE and FRANTZ, JJ., concur in this dissenting opinion.
DOYLE, Justice (specially concurring).
Although I have no disagreement with any portion of the opinion of Mr. Chief Justice KNAUSS, I wish to add some comments concerning the question whether or not the trial court erred in failing to admonish the District Attorney or in failing to instruct the jury to disregard the comments of the District Attorney that Dr. MacDonald had testified that the defendant was feigning insanity.
Although I agree that the specific testimony of Dr. MacDonald which is pointed out in the majority opinion treats this as a "possibility", it seems to me that the other testimony of the doctor is subject to the inference that this was Dr. McDonald's finding.
In order to decide this issue of fact it is necessary to consider Dr. McDonald's testimony in its entirety. The general theory of the defendant was that he was suffering from a mental disease and that this was manifest from delusions and hallucinations. Dr. McDonald testified in great detail concerning his examinations. He analyzed all of these delusion symptoms and concluded that they were not consistent with the defendant's being afflicted with schizophrenia. It follows that if these manifestations were not schizophrenic, then they were feigned manifestations, and this latter was the entire thesis of Dr. McDonald. I shall quote from his testimony in order to illustrate that this was his conclusion and that therefore the District Attorney was justified in commenting as he did. Dr. McDonald described Leick's behavior as "theatrical". He said:
"At times, his behavior was very theatrical. I might mention, not necessarily as an example of his theatrical behavior, but rather as an example of his behavior when I first saw him that he was lying on his bed, sobbing quietly to himself and tears were running down his face. Several times during my earlier interview, there would be brief episodes of this quiet sobbing. Then, he would get up off the bed, walk around the room, and maybe sit down again or even go into a corner of the room and stand facing the wall.

* * * * * *
"On more than one occasion, he suddenly fell to the floor while I was talking to him, and on one occasion, he got down on his knees and kneeled before me. This is an example of theatrical of what I would describe as theatrical behavior." (Emphasis supplied.)
In my opinion, the above observations of Dr. McDonald justify in and of themselves the comment of the District Attorney that Dr. McDonald had characterized Leick's conduct as "feigning insanity." Webster's Dictionary of Synonyms describes the adjective "theatrical" as follows:
"theatrical, adj. Dramatic, dramaturgic, melodramatic, histrionic.
"Ana. Artificial, factitious; formal, conventional, ceremonial, ceremonious: affecting, pretending, assuming, simulating, feigning (see Assume): showy, pretentious, pompous, ostentatious." (Emphasis supplied.)
In other parts of his testimony Dr. McDonald described Leick's statements as to the latter's communications with God, his distorted viewpoint as to his lack of responsibility for the murder of his wife, Evelyn, his fears that Gene Dukes (his hired accessory in the murder) would cause him harm, his expressions to the effect that he and Evelyn would become reunited in after life and his apparent lack of knowledge concerning his present legal status. *1060 All of these "delusions" were analyzed and discounted by Dr. McDonald and with respect to them he concluded as follows:
"In reviewing my total examination, I formed the opinion that he did not suffer from any form of insanity, or mental disorder which would prevent him from understanding the nature of the proceedings against him, or from taking a part in his defense. I thought that the symptoms he showed were not consistent with a true form of mental disorder, such as schizophrenia.
"I formed this opinion, because although he expressed paranoid ideas and I may say that by paranoid, I mean ideas of persecution, such as the fact that Dukes was trying to persecute him, and so onhe did not show the other signs or symptoms which one would need to find in order to make a diagnosis of schizophrenia.
"For example, he did not show the characteristic thought disorder of that disease. As he did not show evidence of such insanity which would deprive him of cooperating in his defense, or of the ability to cooperate in his defense, and as he did not show severe mental defection which would render him incapable of understanding the nature of the proceedings, and so forth, I formed the opinion that he was legally sane."
It seems to me that if these manifestations did not constitute a system of delusions, it logically follows that these were fake manifestations and that Leick was feigning insanity and, furthermore, that this was the conclusion of Dr. McDonald. It seems to me a lot of to do about nothing, selecting one small portion of the doctor's testimony and concluding from it that the doctor considered the feigning a mere possibility. A careful reading of the particular questions and answers shows that Dr. McDonald described it as a possibility merely because the District Attorney propounded the question in this form. The question was:
"Isn't it a possibility he could be making these statements for some other purpose?"
The doctor answered:
"That is quite possible."
The doctor then added:
"Well, for the purpose of appearing insane. I think this would be understandable psychological reaction under the circumstances."
A point very similar to the present one was presented in our most recent Leick decision. Counsel for Leick there argued that the District Attorney had been guilty of inflammatory and ill-founded arguments but we there held that his remarks were proper. Comparison of the remarks which were there approved will demonstrate that the arguments in the present case were proper. Leick v. People, 136 Colo. 535, 322 P.2d 674. The Court there said (136 Colo. 557, 322 P.2d 686):
"In view of the evidence as outlined above, was the District Attorney justified in saying to the jury in his closing argument:
"`Yes, many stories are told here of the version of who did what. Only three people, ladies and gentlemen, knew what happened on December 1, 1953, and that was Leick, his associate, and Evelyn Leick, and her lips are sealed in death. We'll never know what happened, but it must have been like a bolt of lightning when she finally discovered that the man she loved was killing her. And this was even during the pleasure planned by the defendant Leick, and I say to you, ladies and gentlemen, that the fingers on the hands that throttled the life out of that twenty-six-year old girl are in this courtroom, the fingers on the hands of Leick he so placidly holds'?
"Leick contends that the evidence is devoid of any facts upon which such a statement could be made; consequently, the trial court committed error in refusing to instruct the jury to disregard the statement.

*1061 "As we have said, it makes no difference in the accountability of Leick in this case whether he or Dukes, or both together, strangled Mrs. Leick. The facts disclosed by the photographs, some showing her body in the rear of the car with her head back of the driver's seat and a photograph of her body showing injuries to her throat and legs, could produce the inference that Leick choked her while Dukes pinned her legs down. That Dukes handled her legs when they transferred her body to the back of the car strengthens this inference; that Leick was the driver, and her head was behind the driver's seat in the rear of the car after the transfer, makes probable the inference.
"A clear statement of the rule is set forth in 23 C.J.S.Criminal Law § 1093, p. 546, as follows:
"`It is within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and if he does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous. Counsel may draw and state to the jury his own conclusions from the law and the testimony, provided he does not misstate the testimony, nor state facts as to which there is no testimony.'"
In the present case the conclusion attributed by the District Attorney to Dr. McDonald's testimony was a fair one in the light of his entire testimony. It is impossible to read this testimony without concluding that Dr. McDonald was expressing that Leick was feigning insanity. This being so, the statement of the District Attorney was "fairly deducible from the evidence." It did not constitute a misstatement of the testimony and was a logical and proper inference to be drawn therefrom. It is understandable, therefore, that the trial judge would react by simply stating "The Jury will recall what he said." This was a correct ruling.
Examination of the entire record herein impresses the reader with the fact that the proceedings were conducted with scrupulous care for the rights of the accused, and with fairness and impartiality; and every precaution designed to avoid error was taken.
The judgment should be affirmed.
