58 Colo. 175 | Colo. | 1914
delivered the opinion of the court:
June 11, 1913, plaintiff in error was convicted of murder of the first degree for killing James Cleary on February 27, 1913-. They were miners, and the homicide occurred in the shafthouse pi a mine at Leadville, death resulting from two wounds inflicted with a miner’s candle-stick, one on the breast, the other in the back. Prior to his employment at the mine, defendant had purchased a candle-stick on which he filed his initial and before the killing had traded it to one Lute Kellog. The morning of the homicide, the men met, friendly, with other miners in the dry-room, preparatory to going- down the shaft. Some conversation occurred between deceased and defendant, at the time, in which each claimed a candle-stick, and defendant told deceased if he would go with him, he would show him the candle-stick in
Defendant was from southeastern Europe, while deceased and his friends were from northern Europe. De
1. The defendant filed an application, for a change of venue, which the court overruled. Prom the evidence in support of this application, it appears that over ninety per cent of the population of Lake county, subject to jury duty, reside in and immediately around Leadville, and that the newspapers there published articles which were untruthful, inflammable, and hig’hly prejudicial to the defendant who was a Montenegrin, and practically alone. The evidence shows there was in the camp at the time, strong prejudice against laborers from southeastern Europe. Excitement ran so high after the killing that defendant was pursued by a mob which threatened to lynch him, and he was removed by the sheriff to Chaffee county for safe keeping. The case was tried shortly after the homicide, and from the record we feel that the court in the exercise of its sound discretion should have changed the venue in order to insure a fair and impartial trial. Such conditions may not be present at the time of another hearing, if one be had, and we do not wish to be understood to hold that the court should grant a change of venue upon the showing now under consideration. Should the motion be renewed, it would have to be determined upon existing, and not past conditions.
2. The court refused to give any instructions regarding the law of self-defense for the reason, as it appears, that such defense admits the killing was inten
We think the court misconceived the doctrine intended to be announced in the Nilan case. It holds that the true character of the defense presented should be submitted to the jury, and no instructions should be given based on a defense not interposed; that where no defense is predicated on self defense, there is no need of submitting it as a defense, and in some cases it might be prejudicial error to do so. It is evident from the entire- opinion in the Nilan case that the statement: “We go further and say if defendant had asked instructions on the law of ‘self-defense,’ they should have been refused, because there was no evidence on which to predicate them.” (27 Colo., 211), means if instructions had been asked upon the law of self-defense, as a defense, they should have been refused for the reason there was no evidence upon which to predicate such instructions. But it does not follow where defendant claims he
3. The court instructed the jury: “In certain cases however, the law implies malice as when no considerable provocation appears, or when all circumstances of the killing show an abandoned and malignant heart. If, therefore, you find from the evidence in this case that there was no considerable provocation at the time of the killing, or that the defendant acted with an abandoned and malignant heart, then, in that event the law will imply malice and it will not be necessary for you' to determine the question of malice.” That part of the instruction telling the jury that in certain cases the law will imply malice and they need not determine that question, is wrong, and should have been omitted. True, the statute provides in what cases malice shall be implied, but the court should call the jury’s attention to the statute and they should make the implication. Instead of telling them that in certain cases malice is a question of law and it will not be necessary for them to determine it, they should be told in what cases the statute says malice shall be implied, and left to make or draw the inference of malice for themselves as a logical deduction from the evidence.—Kent v. People, 8 Colo. 563, 9 Pac. 852.
5. The court told the jury that murder of the second degree means the wrongful killing of a human being with malice, but without deliberation and premeditation. Complaint is made of the use of the word “wrongful” instead of “unlawful.” Unlawful as used in the statutory definition of murder, means without legal excuse or
The case is reversed and remanded.
Reversed.
Decision en banc.