180 P.2d 516 | Colo. | 1947
Lead Opinion
delivered the opinion of the court.
This is a criminal case in which defendant was convicted of murder of the second degree and sentenced to a term in the penitentiary. He brings the case here for a review of that judgment, and alleges: (1) That the
As to the first point, “This court has repeatedly held that it will not consider objections to an alleged erroneous instruction unless an objection is made to the specific instruction at the time, to the end that the trial court may have opportunity to pass upon the particular objection urged.” Dillulo v. People, 56 Colo. 339, 341, 138 Pac. 33; Sarno v. People, 74 Colo. 528, 223 Pac. 41; Blanchard v. People, 74 Colo. 431, 222 Pac. 649; Koontz v. People, 82 Colo. 589, 263 Pac. 19; Grandbouche v. People, 104 Colo. 175, 189, 89 P. (2d) 577.
As to the second point, no instruction was offered and we have held that, “Mere nondirection in such circumstances is not error.” Reagan v. People, 49 Colo. 316, 326, 112 Pac. 785; Mow v. People, 31 Colo. 351, 361, 72 Pac. 1069; Brown v. People, 20 Colo. 161, 36 Pac. 1040.
The foregoing disposes of this review unless considerations of justice require a waiver of the application of the above rules.
The evidence discloses that on the night of November 1, 1930, a box supper and dance were held at Dry Creek school house in Las Animas county, for the purpose of raising money by selling cakes and pies, perhaps other things — auctioning them off — to raise money for the purchase of presents, and providing a Christmas tree for the children at that Christmas time. Fifty or more of the men, women, and children of the district were present. T. B. Winbern, plaintiff in error, to whom we hereinafter refer as defendant, and his two brothers, although not residents of the district, came as uninvited guests with considerable whiskey in their automobile. Before they commenced to dance, defendant, according to the people’s evidence, exhibited a knife and expressed
After all the evidence had been presented, and both sides had rested, objections were made to the
Plaintiff in error cites McRae v. People, 101 Colo. 155, 71 P. (2d) 1042, as supporting his contention; but there defendant claimed that deceased met her death by the accidental discharge of a gun; that was his theory of the case and, “it justified an instruction on that theory.” Clearly the authority is not in point here. From the testimony introduced upon the trial, the principal question to be determined was: How, and by whom were the fatal wounds inflicted? The court’s instructions thoroughly covered that phase of the case. As the court said in Kelly v. People, supra: “There was no substantial error in the charge of the court as given; and no further instructions were prayed in behalf of defendant. It must, therefore, be supposed that the able and vigilant
The defendant appears to have had a fair and impartial trial.
The judgment is affirmed.
Mr. Justice Alter concurs specially.
Mr. Justice Hilliard dissents.
Dissenting Opinion
dissenting.
Plaintiff in error, defendant below, and his brother Vernon were charged with murder. Defendant was found guilty in the second degree, and his brother of voluntary manslaughter. Defendant was sentenced to a minimum of thirty-five years in the penitentiary, and only he seeks review. Instructions numbered eighteen and nineteen are challenged in particulars I shall state as I proceed. The court has declined to examine, for that, as premised, counsel below interposed no objections to the matters and things of which present counsel complain on error. I am not in accord with that holding. On the contrary, considering the gravity of the charge, the severity of the sentence, and the prejudicial error appearing, demonstratively clear, as I am convinced, Anglo-Saxon conception of procedural justice should move reviewing judges to give pause. Besides, to do so
With all respect, I venture to suggest that the court in its opinion does not adequately state the facts as they appear from the record, and, in some instances states them incorrectly, as my study convinces. It is stated in the opinion that defendant and his brother were uninvited guests at a “box supper and dance” at a school house given “for the purpose of raising money” for a Christmas tree, etc. But the Attorney General says there “is no suggestion that attendance at this social event was in anywise restricted.” There is nothing to indicate that the attendance of the three Winbern brothers, in itself, was objectionable or undesirable. As recited in the court’s opinion, it was a “money raising” social gathering. Not in the inception, therefore, but in the eventualities, is there basis of complaint. The Attorney General says the brothers were in possession of “moonshine liquor [this was in Volstead days],” but only “Fred Winbern * * as the Attorney General adds, “seemed to have consumed an excessive quantity of the intoxicant, and the other two were at least able to restrain themselves during the festivities of the evening until the climax which resulted in the death of M. L. Martin.” Following a box supper the dance started, “and it is generally conceded,” the Attorney General continues, “that T. B. [plaintiff in error here] and Vernon [the brother joined in this prosecution below], participated in the dancing, while Fred contented himself with being quite noisy, clapping his hands, stomping his feet, and generally making himself offensive to others.” The trouble that eventuated in the tragedy had its inception when “Fred [not dancing] slapped a woman on the back and spoke slurringly to her,” says the Attorney General. The
“When McAtee came back into the room, bleeding,” continues the Attorney General, “three other men, Willard Martin, Melvin Allen and Clyde Kygar, immediately went outside to discover the reason for his injury.” Counsel for defendant say “Willard Martin, Red Kygar, Melvin Allen, and several other men, decided to take the law into their hands and dashed outside to attack” the Winberns. It is clear from the record that the men named, and many others, excited and angry and feeling a sense of outrage, not at all surprising, rushed
It is clear that there was a crowd of men (one of the prosecuting witnesses said there were about forty) outside immediately following the McAtee incident. Unquestionably, and, I should say, naturally, the crowd was antagonistic to the Winberns, and none knew it better than the several Winbern brothers. Without regard to what should have been the resolution factually on the principal issue, not within our purview in any event, all must agree that the Wilberns, outnumbered by at least ten to one, were faced by an angry crowd, for the moment not particularly observant of the rule that only to the law should they have resort. It is not likely that at that stage of the difficulty, any of the Wilberns was initiating an attack. Indeed, one witness for the prosecution said of defendant here, and this review concerns only him, did “not hit anybody before he was hit. He hadn’t caused any trouble before he was hit. He didn’t attack Melvin [deceased] before he was hit.” Not only so, but witnesses for the prosecution generally told varied stories concerning the difficulty which followed the McAtee stabbing, in which, as all agree, only he and Fred Winbern had part. I do not question that the case
After stating that McAtee, looking “angry,” grabbed Fred’s head, etc., defendant testified as follows: “Q. What happened at the door? A. Well, I ran to grab Mac, to stop it, and they went out the door, I don’t know which side or where, but out there three or four feet from the door, and I was hit and knocked clear out there; the bunch was coming in from all around; they had piled out there, you know. Q. How many do you think piled out of that school-house, outside? A. Well, I couldn’t tell how many came out of there right then,
Concerning the same incident, Vernon testified as follows: “Q. And how did he take him out? What happened at that time? A. Well, he grabbed him — Mac grabs Fred in here (indicating), and pushes him out the door. And I went out and Mac was standing down over him, bending down over him, and holding him like that (indicating). I walks up and takes hold of his left arm—
The testimony of the two brothers emphasizes what clearly appears from the prosecution’s case, namely, that some thirty or forty men, incensed, angry, perhaps understandably, Fred’s alleged conduct considered, were disposed to regard all the Winberns unfavorably, and, rather than to hold Fred for the “law,” as subsequently they did, and moved by their uncontrolled impulses, and threatening to “kill the sons-of-bitches,” did attack the three brothers, two of whom, including defendant here, so far as appears, had not offended. It is clear, too, at least there is evidence to that effect, and it did not come only from the Winberns, that defendant here and Vernon were endeavoring to get away, and had expressed
I would not be misunderstood. As previously stated, it is not my thought that the case should not have gone to the jury. What I maintain is, that the record is pregnant with so much of uncertainty as to the facts, and the penalty involved is so severe, that well recognized rules of criminal procedure required instructions in keeping therewith. Trial counsel for defendant, although appointed, should have been alert; but their failure justly may not be visited upon the unlettered and indigent farm and timber hand whose life was at stake. The requirement of the law is that the trial court shall instruct the jury in accordance with the law of the case. Of course, counsel for both sides should be alert and helpful, and in criminal cases it is the bounden duty of the district attorney to suggest and promote correct instructions, and prevent, if he may, the giving of incorrect or unsound ones. But regardless of the duty of counsel, and however they may fail therein, in finality the responsibility rests upon the court. The office of a court of review is to examine as to what the trial court has done, or failed to do, not what counsel, for whatever reason, or lack thereof, has done or neglected. The foregoing is recognized in the cases cited early in this opinion, as well as in a multitude of other pronouncements not cited, all of which are to the effect, that regardless of counsel’s oversight we should examine. Of course, in civil cases, where only the parties are interested, and in which the public, at most, is only incidentally concerned,
Before discussing the instructions, I advert to a feature of the court’s opinion which is to the effect, that, since “Defendant testified definitely and positively that he had no knife, and that he did not stab deceased, * * * he has no grounds for complaint as to instructions given on self-defense.” In support thereof, Kelly v. People, 17 Colo. 130, 29 Pac. 805, is cited. As stated there, “The crime of which defendant was accused was committed before the passage of the act of April 19, 1889, which made some changes as to the time, place and other incidents pertaining to the infliction of the death penalty; but the trial did not occur until after such act had taken effect. In Tyson’s case, 13 Colo. 482 [22 Pac. 810], this court held that the changes in the statute were not suffi
Instruction number 18, challenged here by counsel for plaintiff in error, I now set forth. For convenience of reference and consideration, I italicize the last sentence of the instruction, save only the last clause thereof, which I capitalize. As thus emphasized, it reads: “You are further instructed upon the subject of self-defense, that where a party in the lawful pursuit of his own business is attacked by another in such a manner and by such means as to induce in the minds of a reasonable person the belief that he is in danger of losing his life or suffering great bodily harm from such attack, and the person so attacked does honestly believe, in good faith, that he is in danger of losing his life, or suffering great bodily harm from such attack, then he is justified in using such force as honestly appears to him to be necessary to repel such attack, even to the extent of taking the life of his assailant; such is the law even tho the danger is not real but only apparent, if it were of such char
Obviously, as I think, the instruction is indefensible, inexcusable, prejudicial, and wholly without precedent. “The true test,” says the Supreme Court of Illinois, “is what the defendant believed was necessary, acting as a reasonable man, not whether the jury believed from the evidence that it was necessary or apparently necessary.” People v. Clark, 368 Ill. 183, 13 N. E. (2d) 269. We have said that “taking into consideration the circumstances and * * * surroundings at the particular instant of time,” the question is, would they “lead a reasonable and prudent man to use a weapon under like circumstances for protection?” Henwood v. People, 57 Colo. 544, 143 Pac. 373. See, Young v. People, 47 Colo. 352, 107 Pac. 274; Selfridge v. People, 45 Colo. 275, 100 Pac. 591; Boykin v. People, 22 Colo. 496, 45 Pac. 419. “The instruction is erroneous in making the jury and not the defendant the judge of whether or not he was in danger at the time of the shooting and whether or not it was reasonably necessary for him to shoot in order to avert the danger, real, or to him apparent.” McClain v. Commonwealth, 284 Ky. 359, 144 S. W. (2d) 861. See, also, Poe v. Commonwealth, 244 Ky. 649, 51 S. W. (2d) 937; Ayers v. Commonwealth, 195 Ky. 343, 242 S. W. 624.
In the light of the testimony, plaintiff in error was entitled to an instruction on his claim that he was acting in self-defense. Payne v. People, 110 Colo. 236, 132 P. (2d) 441. There, Mr. Justice Burke approvingly quoted from Jabbich v. People, 58 Colo. 175, 143 Pac. 1092, as follows: “No matter how improbable or unreasonable the contention, defendant was entitled to an appropriate instruction upon the hypothesis that it might be true.” The instruction given, number 19, is wholly negative in expression, and proceeds on the theory that the burden in relation to the contention is upon the accused. Not only so, but the instruction specifically states that “it must appear also that the person killed was the assailant.” Considering that it was a wild fight in the night, with some thirty or forty men on one side, and only three men, and one of them hopelessly drunk, on the other, the quoted language is unfairly restrictive. “The law is,” says the Kentucky court, “that one in apparent danger at the hands of others acting in concert has the right to use such means as is necessary or reasonably appears to him to be necessary to avert the danger and to fire in his own defense at any of his assailants. When the evidence tends to establish that condition, the court should so instruct the jury. It is error to limit the exer
It is clear, I think, that plaintiff in error did not have a fair trial, in consideration whereof the judgment should be reversed and a new trial granted. In addition thereto, I pause to add that the inquiry here presents rare opportunity for the announcement of wholesome rules in criminal procedure, not availed of by the court, which I regret.
Concurrence Opinion
specially concurring.
I concur in the court’s opinion solely on the ground that the points urged for reversal by counsel here were not raised by counsel below, and I do not feel warranted in examining notwithstanding such failure. I am convinced that the instructions challenged on review here are erroneous, and had there been proper objections below, I should not hesitate to vote for a reversal of the judgment.
