24 Colo. 61 | Colo. | 1897
delivered the opinion of the court.
Among the errors assigned, those that we regard as impor tant, present the following questions :
First: The sufficiency of the indictment.
Second: Did the court err in refusing to charge, as re quested by the defendant, upon the subject of necessary proofs to constitute an assault, under our statute; and in instructing the jury that where a gun is presented at another, within shooting distance, the law conclusively presumes that it is loaded ?
Third: Did the court err in declining to charge, as requested by defendant, upon the subject of alibi, and in giving the instructions which were given upon this subject ?
In support of the proposition that the indictment is defective in failing to set forth the facts showing that an assault, as defined in our statute, was committed, it is insisted that in order to charge an assault as thus defined, it is necessary to state facts which show an unlawful attempt to commit a violent injury, and also present ability to cany such attempt into execution, or to set out that part of the charge in the language of the statute; and that such particularity is especially essential in charging an assault, as the foundation for an allegation of an intent to commit a higher crime. This rule prevails in Indiana, under a statute like ours. Adell v. State, 84 Ind. 543.
But in Illinois, the state from which our statute was taken, the common law form of an indictment for an assault, with felonious intent, has been adjudged sufficient: Beckwith v. People, 26 Ill. 500; Allen v. People, 82 Ill. 610; Kennedy v. People, 122 Ill. 649; Hamilton v. People, 113 Ill. 34; and also in Texas, under a similar statute: State v. Hays, 41 Texas, 526. Mr. Bishop, in discussing this question in hi's work on Statutory Crimes, section 514, says:
“ This Indiana doctrine, as to the allegation, would seem just in a state into whose jurisprudence the common law did not enter as an element. But the common law has made it
Section 741 Gen. Stat. 1883 reads: “An assault with intent to commit * * * robbery * * * shall subject the offender to confinement in the penitentiary,” etc. Mills’ Ann. Stat., sec. 1215.
Section 945 Gen. Stat. 1883 (sec. 1432 Mills’ Ann. Stat.). provides that:
“ Every indictment * * * shall be deemed sufficiently technical and correct which states the offense * * * so plainly that the nature of the offense may be easily understood by the jury.”
The indictment in this case meets this requirement, and the motion to quash was properly overruled. Upon the second proposition the authorities are in irreconcilible conflict, some of the courts holding that proof of an actual present ability to inflict the threatened injury is essential to sustain the allegation of an assault; and when the assault consists of aiming a gun at another, within such distance that it would be dangerous if loaded and discharged, it devolves upon the prosecution to show that it was loaded. State v. Sears, 86 Mo. 169; People v. Lilley, 43 Mich. 521; Chapman v. State, 78 Ala. 463; State v. Godfrey, 17 Ore. 300; Fast-
While it is held in other jurisdictions that the offense is complete when it is shown that a weapon of this character is used in a manner to indicate that it was loaded, and for the purpose that a loaded gun is ordinarily used, and if the fact be that it was not loaded, it devolves upon the defendant to show it. State v. Rawles, 65 N. C. 334; State v. Shipman, 81 N. C. 513; Cowley v. State, 10 Lea (Tenn.), 282; Mortin v. Shoppe, 3 Carr. & P. 373; Tarver v. State, 43 Ala. 354; Smith v. State, 32 Texas, 593; Crow v. State, 41 Texas, 468; Keefe v. State, 19 Ark. 190; Beach v. Hancock, 27 N. H. 223 ; Richels v. State, 1 Sneed, 606; State v. Herron, 12 Mont. 230.
In the latter case the court, in a very able opinion, reviews the cases upon this subject, and concludes:
“Although there is a division of views in the decided cases, we think that the better opinion is that, if a firearm is the alleged deadly weapon—a weapon the only ordinary use of which is by its being loaded—if it be pointed at the complainant in a threatening manner, if defendant make threats to shoot, if the circumstances are such as would exist if one were using a loaded gun—in short, that if all the elements of the offense be made out, as required by the criminal laws and procedure, except the direct, we may say visual, proof that the weapon is loaded—-under these circumstances a direction to the jury to acquit is error; and the fact that the gun was unloaded (if such be the fact) is a matter of defense. Such view seems to be held by the weight of authority, and such is the only practical view in the enforcement of the statute in reference to assaults with deadly weapons of this character.”
This diversity of opinion has arisen in eases wherein the alleged assault was made towards the perpetration of an offense that could not possibly be consummated unless the firearm was loaded, such as murder or bodily injury; and we
“ It may be that, if the indictment had been for robbery, the facts in evidence would have sustained the allegation of an assault, winch, in cases of that nature, is often merely constructive; for every attempt at robbery, or to commit rape, or to do other like personal injury, involves within it the'idea of an assault, either actual or constructive.”
We think, therefore, that the instruction given by the court correctly announced the law applicable to this case. A more serious question is presented by the assignments based upon the refusal of the court to give the instruction requested by defendant, and in giving those complained of upon the subject of alibi. The court evidently misapprehended the nature of this defense; and instead of treating it as a traverse of a fact that it was incumbent upon the prosecution to establish, to wit, the presence of defendant at the time and place of the occurrence, regarded it as an affirmative and independant defense, that the law imposed the burden of proving upon the accused. The jury were told that if .they believed from the evidence that “ an alibi has been established by or on behalf of defendant, and that at the time when the prosecuting witness alleges that the robbery was committed at the place alleged in the indictment, that the defendant at such time was in Altman or elsewhere than at such place, they should find him not guilty.
This was clearly erroneous. In order to avail himself of
“ It may therefore be laid down as the established doctrine of this state that as to all facts in evidence properly constituting part of the res gestee, they are to be considered by the jury in passing upon the question of guilt or innocence, without discrimination as to rules of evidence, whether introduced by the prosecutor or the defendant. * * * The rule relating to the res gestee, which we have been considering, applies to all defenses which traverse the averments of the indictment and go to the essence of the guilt charged against the accused. Within this class may be mentioned * * * all matters growing out of the res gestee which go to justify, extenuate or excuse the crime charged, including the defense of alibi. Some authorities hold an alibi to be an independent defense, not coming within the rule mentioned, but the weight of authority is against this view. The later authorities hold it to be an essential averment of the indictment that the accused was present and committed or participated in the commission of the offense ; hence this averment must be established by the prosecution beyond a reasonable doubt, and if the proof leaves it doubtful in the minds of the jury whether the defendant was present at, or absent from the place at the time the crime was committed, he must be acquitted.”
In the sixteenth instruction the jury are expressly told that the burden is on the defendant to make out his defense as to an alibi, thus emphasizing the incorrect rule stated in No. 15. We do not think that what follows cures this error.
In support of the doctrine announced in Kent v. People, supra, the court cites among other cases, Howard v. State,
■ “ 6. * * •* And if the evidence satisfies your minds that the defendant was in fact in the city of Indianapolis at the time that the witnesses on behalf of the state testify that he was in the town of Noblesville and other points in the county of Hamilton, it will be your duty to acquit the defendant, and if that evidence, in connection with all the evidence given on the trial of this cause, leaves a reasonable doubt in your minds as to the presence of the defendant in the county of Hamilton on the day the horse and buggy are alleged to have been stolen, it will be your duty to acquit the defendant.”
The court say:
“We hold that the sixth instruction, supra, on the subject of alibi, was erroneous in charging, that ‘ if the evidence satisfies your minds that the defendant was in fact in the city of Indianapolis at the time that the witnesses on behalf of the state testified that he was in the town of Noblesville and other points in the county of Hamilton, it will be your duty to acquit the defendant.’
“ This instruction ought to have been, that if the evidence raises a reasonable doubt in your minds as to whether the defendant was at Indianapolis or at Noblesville when the larceny was committed, you ought to find the defendant not guilty. We do not think that anything that precedes or follows this error, in this or any other instruction given, cures it. An erroneous instruction to the jury, in a criminal case, cannot be corrected by another instruction which states the law accurately, unless the erroneous one be plainly withdrawn.”
Among the many cases to the same effect are : Turner v. Commonwealth, 86 Pa. St. 54; Walters v. State, 89 Ohio St. 215; State v. Josey, 64 N. C. 56 ; State v. Taylor, 118 Mo. 153 ; Walker v. State, 42 Texas, 360 ; State v. Waterman, 1 Nev. 543; Pollard v. State, 53 Miss. 410; Adams v. State, 42
In State v. Taylor, supra, the defense of alibi is discussed at length, and the decisions upon the subject carefully reviewed ; and it is shown that the great weight of authority in this country is against the doctrine that an alibi must be established by the defendant; there being but two states,—■ Illinois and Iowa, and the territory of New Mexico, committed to that doctrine. As will be seen from the above quotation from Kent v. People, this court has aligned itself with the majority of the courts of this country upon this subject, and has repudiated the doctrine of the Illinois courts embodied in the instructions under consideration. That the giving of these instructions and refusing the ninth request of defendant, which we have seen correctly expresses the law applicable to this defense, was prejudicial to the rights of the defendant, is quite probable, when considered in connection with the facts in the case, which in brief are as follows :
During the existence of what is known as the Cripple Creek Strike, and on the morning of May 29, 1894, John Simmons, the principal witness for the prosecution, was driving a vehicle containing eight or nine passengers, from Cripple Creek to the terminus of the railroad; and at the point about two miles from Cripple Creek was approached by a man on horseback, with a rifle at his shoulder, who commanded him to halt. In compliance with this demand, Simmons stopped his team, whereupon the horseman rode up to the side of the hack and inquired several times of the occupants if there were any guns in there; and upon being answered by the persons addressed that they had no guns, he rode away. On the same morning, and at about the same place, another vehicle driven by Frank Sahrbeck, and in which Mrs. Jane Leonard was riding, was also stopped by a man on horseback, armed with a rifle. Of those who were at the time in the first vehicle, but two besides Simmons testified in the case. Upon the question of the identity of the defendant with the man on horseback, the testimony is con-
In view of the fact that the evidence of the prosecution as to the presence of the defendant at the commission of the crime is in substantial conflict, it was of vital importance to Mm that the evidence introduced upon the defense of alibi should have been submitted to the jury under proper instructions. As we have seen, this was not done. The judgment and sentence, therefore, must be reversed, and the cause remanded for a new trial.
Reversed.