55 Colo. 407 | Colo. | 1913
delivered the opinion of the court:
The plaintiff in error, hereafter designated as the defendant, was convicted of the murder of J. B. Craig and Jacob A. Kipper. The jury returned verdicts of murder in the first degree, and assessed the death penalty.
Over objections the court consolidated the two in-formations for trial. We find no error in this respect. Both were for acts and transactions of the same class, and, for acts and transactions connected together, done and performed at the same tim£ and place; this brought them within the provisions of section 1953, Revised Stat
Complaint is made to the admission in evidence of the dying declaration of Officer Kipper. The preliminary evidence for its admission discloses beyond any doubt, that he was mortally wounded; that he had been informed by his physicians that he could not live; that he fully realized this fact and so stated immediately prior to making the statement; that he made the statement in the presence of several witnesses; that it was taken down in writing, signed by him, and witnessed by them, and that he was in his right mind at that time. The declaration was properly admitted. The contention of counsel that the jury should he entitled to pass upon these preliminary questions is in conflict with our decisions, which are to the effect that they are exclusively for the court.—Graves v. People, 18 Colo. 170, 32 Pac. 63; Brennan v. People, 37 Colo. 256, 86 Pac. 79; Zipperian v. People, 33 Colo. 134, 79 Pac. 1018; Weaver v. People, 47 Colo. 617, 108 Pac. 331.
In the instructions the court defines murder in the first and second degree, as well as malice in connection with each, also, as to what constitutes murder in each degree, including the definitions of the terms wilfully, deliberately, premeditatedly and malice aforethought, etc. These, and other instructions are followed by one stating that the killing of the deceased Craig, and the fatal wounding, resulting in the death of the deceased Kipper by the defendant, are both proved and admitted, but that the defendant relies wholly upon his plea of self-defense and the defense of his father and mother, and claims that the killing was justified under the law, hence, that it constitutes justifiable homicide. This instruction, which is quite lengthy, concludes with this language:
*410 - “You are further instructed that the killing being proved, the burden of proving circumstances of mitigation or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter or that the accused was justified or excused in committing the homicide.”
The defendant tendered instructions defining manslaughter with its different degrees and the kind of verdicts to be rendered in case the jury found the facts came within the definition of such crime. These instructions were refused, to which refusal exceptions were taken and the case submitted to the jury upon the court’s instructions as to what the defendant’s defense was. This eliminated the question of manslaughter. In this the court erred.
The testimony, in substance, among other things, discloses that the deceased J. B. Craig was the marshal of Rocky Ford, a city of the second class; that Jacob A. Kipper was his assistant; that both were acting in such official capacity; that defendant Robert Harris and his wife were residing with the defendant’s father, Joseph Harris, who with his wife lived in a little home in that city. One Boyd was the principal witness for the people. The substance of his testimony upon direct examination (which is the most favorable for the people) was, that he heard what he thought was a disturbance in the vicinity of the Harris house; that it seemed to be one of a family row; that this was about 9:30 or 10 o’clock in the evening; that it continued about three minutes; that he stood in the back part of the lot where he lived and listened a couple of minutes, maybe not so long; that he heard the noise; that they were quarreling in that vicinity; that he could not tell who it was quarreling, only as he recognized the voices; that he recognized one as that of Robert Harris; that there were only
The substance of the dying declaration of Officer J. A. Kipper (who lived until sometime during the 17th of July) is as follows: “That Marshal Craig and myself were notified that there was a disturbance at the house of Joseph Harris; that Craig and I went to the Harris residence; that Craig knocked; that we opened the door and went into the front room where were present Joseph Harris, his wife Clara, Robert Harris, and his wife Annie; that Marshal Craig called upon Robert Harris to throw up his hands; that he replied that he would be damned if he would; that Craig and myself at once made for the said Robert Harris for the purpose of putting him under arrest; that we were attacked by the said Robert Harris, Joseph Harris and Clara Harris; that I caught hold of Robert Harris, and was holding him and called upon Marshal Craig to bring the handcuffs ; that Craig replied he could not get to me, he being at that time in combat with Joseph Harris and Clara Harris; that while I was holding Robert Harris, Joseph Harris, who had a chair in his hand, struck me and knocked me down upon a lounge or davenport; that I wa¡? dazed from the blow and helpless; that Robert
There is evidence on behalf of the defendant, that there was no disturbance of any kind at the Harris home; that Robert Harris’ wife had been crying upon account of something that had been said to her which hurt her feelings, but prior to the time the marshal and his assistant came they had all gone into the house; that she had ceased crying and everything was quiet; that when the officers came they entered the house without giving any notice or alarm and asked what was the matter, to which the father, Joseph Harris, responded, “Nothing, for them to get out, that they were peaceable;” that without warning or demand to submit to arrest or notice that any one was claimed to be under arrest, one of the officers first struck Clara Harris, and then an officer struck Robert Harris and then Joe Harris was struck and both officers immediately joined in beating and clubbing Robert Harris; that some one cried
The informations charge murder in the first degree. This includes all the lower grades of criminal homicide. If there was evidence relevant to the issue of manslaughter, its credibility and force was for the jury to consider in determining the facts and was not a matter of law for the decision of the court.—Crawford v. People, 12 Colo. 290, 20 Pac. 769; Stevenson v. United States 162 U. S. 313, 16 Sup. Ct. 839, 40 L. Ed. 980; Henwood v. People, 54 Colo. 188, 129 Pac. 1010.
If the evidence of the defendant and his witnesses is to be believed, it shows circumstances tending to excite a sudden heat of passion occasioned by the alleged unjustifiable and unlawful acts of the officers. Whether it is to be believed was not for the court to determine, but was a question of fact to be passed upon by the jury. The fact that the defendant may have claimed that he was acting through'fear of the danger, not only to his own life, but to that of his father and mother, is not incompatible with the defense of manslaughter, nor inconsistent, with the position that if his testimony and that of his witnesses is true, that the actions of the officers were sufficient to instill within him a sudden heat of passion, irresistible or involuntarily sufficient to cause him to commit the crimes alleged. This question was thoroughly considered in Henwood v. The People, supra, wherein at page 195 we quote with approval from Stevenson v. United States, 16. U. S., 313, 322, 16 Sup. Ct. 839, 40 L. Ed. 90, as follows:
“It is objected that while the evidence above set forth was proper to be submitted to the jury upon the issue of self-defense, it was not of that character to even raise an issue as to the grade of the crime, if the theory of self-defense were not sustained. We do not see the force of the objection. The fact that the evidence might*417 raise an issue as to whether any crime at all was committed is not in the least inconsistent with a claim that it also raised an issue as to whether or not the plaintiff in error was guilty of manslaughter instead of murder. It might be argued to the jury, under both aspects, as an act of self-defense and also as one resulting from a sudden passion and without malice. The jury might reject the theory of self-defense, as they might say the shot from the pistol of the deceased had already been fired and the plaintiff in error had not been harmed, and, therefore, firing back was unnecessary and was not an act of self-defense. But why should the other issue be taken from the jury and they not he permitted to pass upon it as upon a question of fact?”
This language is specially applicable here and demonstrates beyond any doubt, when applied to the evidence in this case, that the court was not justified in stating that the only defense claimed was that of self-defense. The defendant’s counsel had tendered an instruction concerning the question of manslaughter, which, of itself, advised the court that they desired the benefit of the evidence upon this subject for what it was worth. There was testimony tending to prove that defendant acted under the influence of passion, provoked by the action of the officers, also that he acted in self-defense. Under such circumstances the rule announced in Kent v. The People, 8 Colo. 563, 9 Pac. 852, as well as in Henwood, v. The People, 54 Colo. 188, 29 Pac. 1010, is applicable, which is to the effect that the defendant was entitled to have the res gestae laid before the jury to be considered as a whole without distinction as to which party introduced the several matters of evidence. By these statements we are not to be understood as saying that the evidence of the defendant or that of his witnesses is true or worthy of belief; it is in conflict with the dying declaration of Officer Kipper, which was
In addition to defendant’s complaints concerning other portions o-f it, he complains to the giving of that portion of instruction 13 hereinabove set forth. It must be conceded that it is ambiguous wherein it refers to manslaughter, when the court declined to instruct upon the question of manslaughter, thereby leaving the jury at sea as to what the word “manslaughter” meant as • used in the instruction, but in view of a new trial which will permit of the defense of manslaughter we deem it unnecessary to consider this assignment or to state whether in our opinion a proper exception was taken to it.
Considerable portion of the argument pertains to the instructions concerning the rights of an officer in the alleged performance of his duties. Counsel for the state make the contention that there was no proper exceptions taken to these instructions. We deem it unnecessary at this time to enter into a discussion of either of these questions further than to state that when considered as
For the reasons stated the judgment is reversed and the cause remanded for a new trial.
Reversed.
Decision en bcmc.
Mr. Justice White not participating.