*1 proceeded. Plaintiffs trial denied, and the tinuance presented appeared evidence. their counsel alone refusing we continuance, court erred Whether disposed inquire. in view think, however, We not are petition intervener, dismissing' of error in that divide the same issues a trial of which will necessitate requires, justice plaintiffs and in this defendant, should that reversal concur, will not trial court doubt the end as a ordered in behalf of defendant, be may actively participate party For, trial. what- regardless may is fault, it indis- said, ever be else import putable to him defendant in trial of vital part. no plaintiffs judgment both as to
Let it be ordered petition to rein- be reversed, the intervener’s error be stated. and Campbell Butler Justice Mu. Chief Justice
concur. 13,588. No. People.
Pacheco et al. v. (43 165) [2d] P.
Decided March 1935. *2 Mr. R. Mr. Chester A. for Temple, Bennett, plain- L. tiffs in error. General,
Mr. Paul P. Mr. F. Prosser, Attorney Walter the Scherer, Assistant, people.
En Banc. PIolland of the court. opinion Justice delivered the
Plaintiffs in error will be referred to as defendants. March county, On in the district court of Weld 30, 1934, them with they charging- were tried an information February murdered on having- 27,1934. one Clifford Smith first returned a verdict each finding guilty After the degree punishment the at death. fixing* trial, 9', on April of a motion for a new overruling court by the verdict the passed upon sentence error. and defendants assign brief: That are in people
The facts established with his wife deceased, together Clifford were 16-year old Bobby Griffin, boy, Violet a living* Wellington, prior on a farm near Colorado; that February 27, 1934, defendants had worked for the family; deceased and known to were the Smith that the Spanish-American defendants are of descent and lived Wellington; with John Herrara, brother-in-law, a evening February at- 27, Smith and his wife Welling- tended an entertainment at the in boy Bobby, school house slight ton, and on account illness, was left at alone; home that the Smiths returned home about 9 o’clock, Smith entered the house and Mrs. Smith away, heard a shot and started to run when the defend- immediately ants came out of the house and her; believing thereafter her to be carried her into dead, laid her on the floor and one defendants apparently viciously person; attacked kerosene, her lamp living from a table, room was scattered over *3 clothing the inside of the house and the Smith, of Mrs. and then set on fire; that defendants fled home, to their and defendant John told their brother-in-law, he had killed clothing Smith; that defendants took left; some and day following, they apprehended on that they were where hiding hay upon being had been seen stack, in a brought escape apparent to Denver to mob violence, were questioned by police department, officers of the Denver by part people, and, as shown the evidence on the of the writing, made confessions which were reduced to submit- signed by presence ted to them and the defendants in the overruling witnesses, which confessions, after the objections by the court were admitted in evidence as voluntary supported confessions. These confessions, in many by people’s testimony details witnesses and the of defendant John Pacheco, disclose a brutal and sordid principal crime, the substance of the details of which are as follows:
Louis in Pacheco stated his confession that he and his brother at arrived Smith’s John, home about 7 in o’clock evening; that went there he, because Louis, get money cutting wanted to some that he had worked for times; that he several asked which Smith corn for he except it; no one about that with Smith had quarrelled him; that he had knew owed that Smith himself and Smith at he arrived that when pocket; a in his revolver he inquired them in and house, Bobby Smith’s Griffin let he over that and was told was, where Bobby Smith big- if he had a Bobby at he then asked house; the school Bobby to go he told Bobby no, ger and when said gun a bigger and look for and trunks the drawers through Mrs. and, Mr. and seeing- looked out gun; Bobby away, where- car, attempted get in their coming Smith John head; that his brother shot Bobby Louis keep he him to shot did not him Bobby; see shoot Smiths; alarm to the give him from out going Louis came in house. five minutes about I my him stated his confession: asked further and wasn’t anything he owe me said didn’t money off and glanced I once and shot pay. going twice. hit and then John shot Smith my brother, John, yard, started holler- still out Mrs. who was I me John followed door, I slipped out ing. her into the down, and we took shot her. She fell coal pour saw John oil her, blanket threw a over threw the match down and cigarette them. lit John but John home, We left and started was started. the fire my away quite threw gun left home. got before me aways from the place. John Pacheco stated the confession of defendant with his brother at the Smith home arrival
same time of Louis; there; Griffin finding- Bobby as that fixed *4 hour that in the house about an before been that he killed killed; Bobby; was Louie told him Bobby Smith to return, that while and Mrs. waiting place; searched the drawers and ransacked the that Mr. I first. Smith The confession then continues: came calf, a I said turn in on account of you to “Did me him, it by to fix we are to settle up, going want it so he said I didn’t see and shot.” grabbed gun, so I shooting, any gun I in the kitchen. hand. Louie was Smith’s lay I left him and after shot twice and there Smith yard, was out in the who and saw Louie shoot Mrs. Smith lighted I into house. then the the two of us carried her the lamp oil floor and Mrs. hut threw the on and up rape lift I not before that saw Louie her dress. did rape her. I Mrs. Smith and did not see Louie then struck go on went home. I didn’t all the match the floor and way anybody went there, I back to see if and home, Bobby and Mr. floor. them, found two of Smith gun away by it was a rifle threw the the water tank, in Mr. house. I then went home and told Smith’s Louie up left the house. then went that Mrs. Smith had We hay
to the stack. threw the match on the floor and tried to burn the house.
Defendant testified in own John Pacheco his behalf. interrogated concerning When the confession he had pressed, made, uncertain, he was evasive and when could shooting not remember. He admitted the but denied the upon person attack of Mrs. when said that money Smith came in the and was house asked for the picked up (which refused, he then an iron the witness any manner), could not describe and started strike him with the iron when his brother, Louis, shot Smith. up got Smith then with started to strike Louis protect iron and he, brother, his then shot Smith. people Mrs. Smith testified for the detailed tragedy it as after occurred she and the deceased reached homé. She testified that her husband house, went into the she heard a shot and defendants, who were then recognized by her, came out of her and iit feigned the fear of further she violence, and was death, carried into the house. She described the attack her person in detail, and stated that while in her then condi- tion she was kicked in the head face. She related the setting escape clothing events of the fire her and the putting defendants; out of the fire in her cloth- ing, fearing and, that the defendants were outside the
406 through crawled out a window and fled to door, she on the farm. The defendants were house a tenant of at the her. She identified them time known to tragedy and at the trial. assign many errors,
Counsel for defendants numerous reversal, For to which are without merit. seem of give rely upon of the court the refusal to tendered instruc- voluntary manslaughter, giv- the crime of tions by ing charging the instruction the court as of accessories principals.
Considering the
of
connection
defendant
each
by
with the
crime
the evidence,
entire
as disclosed
especially
voluntarily
the confessions
and so held
made,
statutory
and under the
definition of ac
court,
principals
both
rela
cessories,
defendants were
and their
of
tion
commission
the entire crime was
such
accessory standpoint, they
from the
could be and were
properly charged
principals
as
in the information. On
accessory
court
numerous
may
this
held that an
occasions,
has
charg’ed
principal.
statutory
There
be
as
is no
dis
prin
tinction between
fact and
accessories before the
cipals. Mulligan People,
17,
189
5;
v.
Colo.
Pac. Voris
People,
accessory during*
v.
the fact
75 Colo.
may charged principal. be information as beyond question In this it is that there was case, concerted accomplishment action between defendants for the purpose complete commit and a common the crime. In ample justification such circumstances there charging principals in them as the information. properly
The court refused to instruct the degrees manslaughter for the reason that the shows evidence in this case of Smith to have question deliberate, been intentional and and there is no manslaughter presented. Counsel for defendants argued testimony Pacheco that the of John sufficient justify, require, if not the submission instruction testimony. only to the effect of his evidence in as this justify following such contention which would is the case, (Smith) testimony: “He portion Pacheco’s of John * * I *6 dining came back room and the walked to * * * arguing about was he know what he said don’t money my him that he was and he told brother, with that going way, iron pay up took an so he him in other
to
some
my
going
he
something,
brother,
hit
and
to
he was
or
and
me, and he was
I was and he seen
looked
where
toward
my
going
brother shot him
iron,
to
with
and so
hit me
my
again
up
and
got
brother,
hit
and went to
and then
’’
my
This
shot.
brother so
of course had to defend
related,
in
upon
not
alleged
does
as
brother,
his
attack
pas
provocation
irresistible
to create
sufficient
dicate a
The
injury upon
provoking
killer.
the
It
a
sion. was not
part of
on
intention
discloses a deliberate
evidence
rigid
thing
Under
that was done.
do the
defendant to
any
wholly
manner
unable
was
cross-examination, he
testi
his
referred, and
which he
iron to
describe the
to
contradictory,
dis
mony
generally
and
uncertain
was
memory
was called
played
when he
failure of
convenient
surrounding
important
admitted
upon
details
to relate
testimony,
killing
giving
His
confession.
of his
and the
change
light
him,
not
does
favorable
in the
most
viewed
simple
following
of ad
statement
the effectiveness of
Giving
statement
credit to the
full faith and
verse facts.
going
testimony,
that the
and the
confessions
in the
the
money,
upon
to collect
errand,
was
a lawful
house
deceased’s
unprovoked,
in the
terminated
this lawful mission
Bobby
prior
Griffin
brutal
malicious and
apparent
clearly
record
from the
It is
of deceased.
return
Mrs. Smith
of Mr. and Mrs.
arrival
Bobby
re
and
called to
in the
someone
observed
requested
response;
her husband
then
that she
no
ceived
request
go
enter
unheeded, and Smith
was
in, this
not to
kitchen,
ing
defendants
house, found the two
apart
guns
standing
hands,
in their
with
inches
about six
lamp
tragedy
lighted
in the bedroom.
he saw a
lips,
saw,
do not
what else he
we
sealed Smith’s
soon
presumption,
justified in the
that we are
but feel
know,
light
that if
there
sufficient
the room for the de-
gun
they stated,
fendants to see that Smith had no
as
pick up
to see
testified,
him
as
we
as-
then
iron,
light enough
it was
for
sume that
Smith to see two men
house under
his
the unaccounted
and unusual cir-
seeing
mentioned,
cumstances above
them
armed,
say,
justified
taking
law
must
would have
him in
any reasonable means to defend himself
castle,
and his
necessary,
taking-
if
extent,
even to the
life.
point, assuming
At this
the truth of John
testimony,
picked up
Pacheco’s
that deceased
an iron for
any purpose,
attempting
it
to use
when
John
him,
Louis shot
and that he
Louis,
then started to attack
say
his assailant, when John
him,
shot
killed
we must
being
right
that the deceased, after
had a
Louis,
*7
against
to defend himself
a further
latter,
attack from the
even
taking
necessary,
to the extent of
his
if
life
and if
John
engaged
killed him while he was so
in a lawful de
against
fense of himself as
the attack
Louis,
for which
provocation
Louis could
having
claim no
after
shot de
ceased in the first
then John was in no better
instance,
position
provocation.
already having-
to claim
A crime
been
acting-
committed
defendants
in concert, with no
negative
superadds
evidence to
intent,
a felonious
the law
original
to felonious intent, to kill
intent
the de
People
ceased.
entire
Olsen,
v.
80
22
Cal. 122,
Pac. 125. The
cruelty
crime
result of
heart,
wickedness of
disposition.
passion
recklessness of
If there in
firing
mind of John at the time of
shot,
the fatal
it was
provocation,
without lawful
because whatever deceased
provocation
did, from which
claimed,
could be
was done
compulsion
partner
under the
of the
accused
his
Having*placed
position,
crime.
themselves in this
we are
compelled
say,
a as matter of
law,
forfeited
rig*ht
all
provocation,
mitigate
to claim
and to
a homicide
manslaughter,
from murder to
which defendants'
jury,
claim the court should have instructed the
there must
adequate provocation.
have been
One cannot strike to
peril,
latter is free
unless the
brother from
relieve Ms
difficulty
placed
bringing
him
which
fault
from
peril.
It is do well which be taken. not believe to judgment it de- is ordered that affirmed, is ending during 1st, the week executed fendants be June 1935. - say me to that he con authorizes Hilliard Me. Justice except opinion, as defendant he believes that
curs in this justified younger his evidence Pacheco, man, John manslaughter. request for an instruction on Me. Justice Bouck dissents. Bouck, dissenting. Justice say majority opinion What shall
From the dissent. defendant. if Pacheco were the sole will be said as John My dissenting trial court refused is that the reason *8 request regard man- to instruct John’s slaughter. may dispassionate
A recital of main facts brief and not be amiss. - 25-year-old Spanish defendant, Pacheco, John dropped near home Well- in at Clifford Smith’s American, February county, ington 27, Colorado, Larimer aged 37. did not Louis, brother, He his elder with trip except any he and Louis know reason for the coyotes. 22 rifle be- He had a or out to hunt rabbits were longing pistol. young single brother; to a Louis had old shot boy Bobby
A at the Smith named Griffin lived house. He was there alone when the two brothers arrived. The having-gone absent, Smiths were to attend a school enter- tainment. went John some distance from house on legitimate any no errand. There had been trouble of kind nothing unusual when he left the house. He returned. Bobby, ap- In the it meantime Louis but does not pear that John knew of this until after the entire series tragedies complete. was
Smith entered his later. What house a few minutes happened immediately including killing thereafter, of Smith, will be dealt with later. killing
After the brothers came out house, Louis ahead of John. Mrs. when she Smith, who, somebody her husband returned, had noticed that inside, remained outdoors. went in. Smith himself She away. heard a shot turned ran her. within, Louis shot subsequently She recovered trial. and was a witness at the Except killing in connection with the inside the John fired no shots. saw his Whether John brother helped carry shoot Mrs. Smith is not certain. He Louis her into the house. shooting Bobby
It is uncontradicted that the presence knowledge; done out of John’s and without his by also that Mrs. Smith John, was not shot but John’s preceded shootings respectively brother. These two shooting followed the of Clifford Smith. now revert to the of Smith. Under all the killing-—so this
evidence, far as John is involved-—wasan entirely separate transaction others. from the
What is the adduced relation to evidence this transac- tion? present
For the sake that discussion at the concede prove tending outset there is substantial evidence both John and Louis have committed Clifford degree. Smith murder of the or second other first On the
411 support theory any the evidence tend to does the hand, attorney man that John’s of Smith of John’s slaughter? ap have been then there should does, If it principle plied down this court John the laid favor of People, 175, 143 58 Pac. 1092. of Jabich v. Colo. the case People, 769; 12 Colo. also: v. Pac. See Crawford People, Pac. 407, 135 v. 55 Colo. 785. Harris would tend to show was the evidence that What, then, possibly but man- murder, homicide was not the Smith slaughter? testimony regarding between own what John’s occurred “* * * * follows: him and is in substance as Smith * * * [John way his brother On the home * * * just Louis] so when into house come Smith’s my time, him at that in, brother said to Smith come so [Louis money getting work he done a little for this about * * * admittedly Smith] said Cliff worked for had money,’ ‘Why, you give said, he I can no I don’t believe you calf of mine then ‘How about that he said my said, Well, time, brother butchered,’ so at over ‘I so he talked all’ and said don’t want no trouble at money, pretty so soon some more about going got piece to hit he was there, iron standing he turned I and so then the side brother, at brother shot with that iron and so to hit around me hit brother and went to around him, and so then he turned my going again because brother to defend and so was * * him too and so I shot to, lay clearly dead people’s that Smith evidence shows iota Not one arms outstretched. floor with his story the iron. The about of John contradicts evidence body But, position John. to corroborate seems Smith’s testimony inis record. of John not, corroborated or question that was is a or false true it was Whether upon proper law. as to jury instructions decide, manslaughter instruction, which The omission thus this defense, to consider have enabled would *10 I think, amounted, to a denial the fair trial to which. John was entitled.
“No improbable matter how con- or unreasonable tention, defendant was appropriate entitled instruc- ’’ tion upon the that it hypothesis might be true. Jabich v. People, at of 58 supra, page 179 Colo., page of 143 Pac.
It is not denied
if
or doubted
John’s
is
that,
testimony
true, John’s admitted
murder,
Smith is not
but
voluntary
This
familiar
law.
manslaughter.
is
Compare
Edwards
People,
377,
v.
Colo.
The question question is a of fact. As it should such have been submitted to the in the district court. The refusal of the tendered manslaughter was, instruction think, prejudicial error. In view this, join cannot approving penalty imposed upon the death John Pacheco, and respectfully dissent. 13,644.
No. Holt Mitchell et v. al. (43 388) [2d] P.
Decided March 1935.