31 Colo. 351 | Colo. | 1903
delivered the opinion of ' the court.
Plaintiffs in error were charged with the murder of Charles J. Withers. The trial resulted in a conviction for murder in the' second degee. The deceased came to his death from bullet wounds claimed on behalf of the people to have been inflicted by one or both of the accused. The theory of the defense was that the accused, Mow, was attacked by deceased without any provocation whatever, and that in defending himself he took the life of deceased. On the part of the prosecution, the theory was that the accused entered the storeroom where the homicide occurred, and at once opened fire upon the deceased.
The first point we shall consider is the claim of counsel on behalf of the accused that the testimony does not support the verdict as against either, and especially as against McCoy. There were but three eye witnesses to the tragedy — the accused, and a young man by the name of Hendricks, who was a clerk in the store. His testimony is to the effect that he was near the stove, in the rear of the store, when the accused entered a little after eight o’clock in the evening; that deceased was near by, leaning against some shelving, and as the accused walked towards them, he moved a short distance, which placed him in the rear of the stove, facing towards the front part of the store; that McCoy asked him (the witness) if he was going to the dance; that he does not remember Mow said anything more than “Good evening,” and that he (the witness) told McCoy he did not think he would go. No reply was made to this, and as he
Two witnesses who were with the deceased at the storeroom for some time during the evening, and only left shortly before the tragedy, testified they did not notice that he was armed. They describe his dress, as well as the manner in which he was standing, from which it may fairly be inferred that if he had been armed with a weapon as large as a 45 calibre revolver, .they would have noticed it. There is also testimony to the effect that deceased when at home was in the habit of keeping his revolver in the bed which he occupied in the store. One witness testified that he was in the storeroom from fifteen minutes to half an hour before the shooting occurred, and that while there he noticed McCoy come to the front of the store, peer through the glass in the front door, and then go away; and that he was accompanied by another party whom he did not recognize.
The above, in brief, is a statement of the ma-r terial oral testimony in the case. It throws but little
On the part of the prosecution a witness testified that he found eleven bullet marks in the wall, but did not see the one in the pick handle. Whether or not he meant to state that from these marks he found
The testimony, although somewhat meager in detail for á murder case, when carefully considered and weighed, fully sustains the verdict of the jury that the accused are guilty of the crime of which they were convicted. Twelve men have carefully considered it. They had the advantage of seeing the witnesses when they testified; of considering all those little incidents which aid so much in the determination of contested questions of fact, and which can never be reproduced in a record; of the explanations which the witnesses gave of the surroundings where the tragedy occurred, and if this court, without these aids, should set aside the verdict and say that it is not sustained by the testimony, it could only be done upon the theory that we have a better understanding of the case than the jury had. If the accused visited the store for the purpose of purchasing a pair of shoes for Mow, why did McCoy peer in through the window and then disappear, and return later, except it was that they desired to enter the room and murder the deceased at a time when there was no eye witness except the clerk? True, this testimony as to McCoy peering into the store is denied, but the truth or falsity of the statement made by the witnesses on behalf of the people and of the accused on this subject was for the jury to determine. The bullet marks sustain the conclusion of the jury, that the story of the accused is without foundation. Not a mark of a bullet is found which could have been fired by the deceased until after he had reached his bed room, whereas,
The claim that McCoy did not fire any of the shots is not borne out by the record. He and Mow were close and intimate friends. They had been brought up as boys together. When, according to the testimony of the accused, the deceased leveled his revolver at Mow, it does not seem probable that McCoy, who was armed, would have made no effort to save his friend. If we are right in concluding that the testimony shows marks of eleven different bullets, then McCoy must have fired once. The deceased according to the testimony only fired four shots. Mow fired sis, and the other must have been fired by McCoy. Waiving this, however, if Mow is guilty, McCoy is equally so, because, if we accept the conclusion that the testimony is sufficient to sustain the verdict against Mow, there is no escape from the further one that they both went to the store with the preconceived design of taking the life of Withers, and
The court directed the jury, in plain and unmistakable language, to acquit the defendants if the deceased was the assailant; so that their attention was directly called to the vital question in the case. They have resolved this question against the accused upon testimony which fully sustains their judgment. It was their peculiar province to determine the facts, and on review their findings will not be disturbed, when it appears there is sufficient testimony to support them, or that they are not so manifestly against its weight that they were inspired by bias or prejudice, or to state a rule more nearly applicable to the case at bar, the verdict of a jury will not be disturbed when the testimony and circumstances are such that different minds might conscientiously reach different conclusions as to the facts thereby established.
The next point we shall consider is the claim of counsel for plaintiffs in error, that the court erred in directing the jury that the verdict must either be murder in the first or second degree, or not guilty. The particular objection urged is, that this instruction leaves out of consideration any charge of the crime of manslaughter. There are two reasons why this objection is not well taken. In the first place, there is not a particle of testimony which would have justified the jury in finding the defendants guilty of either grade of manslaughter. The theory of the defense was self-defense, with no attempt upon their part to justify the taking of the life of deceased except the one that, without any warning or provocation whatever, he assailed the accused Mow with a deadly weapon, and that the shots which the latter fired were for the sole purpose of preventing deceased from carrying out his murderous design upon
Alleged error is also predicated upon the ground that the court admitted incompetent testimony. Several photographs of the interior of the room in which the homicide occurred were offered on behalf of the people, and received in evidence, to which the defendants objected because they were not properly identified as having been taken by a skilled photographer. The fact that a photograph was not taken by a professional does not render it inadmissible in evidence. It is only necessary to show that a photograph, in order to warrant its admission in evidence, if otherwise competent, is a correct likeness of the objects which it purports to represent. This may be shown by the person who made it, or by any other competent witness.—New York S. & W. R. Co. v. Moore, 105 Fed. 725.
Before the admission of the photographs in ques
On behalf of the people a witness was interrogated as to whether or not either of the defendants had said anything to him about an occurrence which, it was claimed, had taken place at the home of the father of accused McCoy a night or two previous to the-homicide to which he answered “No.” He was then asked if any of the McCoy family had said anything about this occurrence, to which he answered “Yes,” and further stated that it was Joe McCoy who spoke to him. on the evening Withers was killed. These several questions were answered over the objection of the defendants. To the further question as to what was said by Joe McCoy, an objection was interposed, which was sustained. It is claimed by counsel for defendants that from the questions and answers under consideration, the jury were led to believe that some occurrence had taken place prior to the time of the shooting the details of which were kept from them, but which in their imagination may have been the cause of the attack on deceased. This is but mere surmise. We must presume that when the trial judge sustained an objection to the question which was intended to have the witness state what was said by Joe McCoy, that the jury performed their duty, and would not attempt to draw upon their imagination regarding a transaction or conversation which he held was incompetent, and which, by the ruling made, he clearly indicated was incompetent. Even if it be conceded, therefore, that permitting the witness to state that Joe McCoy had a conversation with him was erroneous, it is apparent that such error could not have prejudiced the defendants. A verdict will not be set aside for errors committed in the admission of testimony when it appears that such
The judgment of the district court is affirmed.
Affirmed.