Armijo v. People
| Decision Date | 03 December 1956 |
| Docket Number | No. 17989,17989 |
| Citation | 304 P.2d 633,134 Colo. 344 |
| Parties | Joe ARMIJO, Jr., and Benny Trujillo, Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Jenkins, Stewart & Tursi, Seavy & Seavy, Pueblo, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John W. Patterson, Asst. Atty. Gen., for defendant in error.
We will refer to plaintiffs in error as defendants, or by name.
September 13, 1955, an information was filed in the district court of Pueblo county charging that defendants on the 10th day of September, 1955, 'did then and there feloniously, wilfully and of their malice aforethought kill and murder one Raymond Cardenas, contrary to the form of the statute in such case made and provided, * * *.' September 26 following, defendants were arraigned and each entered a plea of not guilty. Trial was had beginning December 12, 1955, and the jury on December 15 returned its verdict finding each each defendant guilty of murder of the second degree. Motion for new trial was filed and denied; sentences were entered on the verdict February 28, 1956, and Armijo was sentenced to the Colorado state penitentiary for a term of not less than thirty-five nor more than fifty years, and Trujillo to a term of not less than twenty-five nor more than forty years. Defendants, seeking reversal of these judgments bring the cause to this Court by writ of error.
On the night of September 9, 1955, in Avondale, County of Pueblo, State of Colorado, the defendants engaged in a fight with Sanchez and Mares. This fight was stopped and the defendants taken inside a cafe called Chuck's Place. Within five minutes, defendants went outside and again engaged in a second fight with Sanchez and Mares. During this second fight Armijo took out a knife and cut Mares. Mares then hit Armijo with a chain. Mares and Sanchez then ran back of the 'Arapahoe,' which is about a block from the scene of the fight. There defendants caught Sanchez, and while Trujillo held him Armijo inflicted two knife wounds in his abdomen, requiring hospitalization and surgery. Defendants then started back toward Chuck's Place and enroute encountered the deceased, Cardenas, who up to this point had not been involved in either of the preceding fights. Cardenas was seated in the right hand front seat of a parked car, with the right front door open, and defendants pulled him from the car. Armijo asked Cardenas if he had hit him with the chain and Cardenas answered 'No' and stated, 'I don't even know you.' Both defendants were holding him and Armijo then stabbed him in the stomach with a knife. He was taken to Corwin Hospital in Pueblo where he was treated by Dr. Weaver for a stab would of the abdomen from which he died on September 11, 1955.
Counsel for defendants present their argument under fourteen titles. While some of these separate captions are merged in the following discussion we answer every point made. No good purpose would be served in detailing the points relied on because the nature of each of them will be apparent from the substance of the questions hereinafter set forth and answered.
Questions to be Determined.
First: Did the trial court commit error in refusing to instruct the jury concerning the offense of voluntary manslaughter?
This question is answered in the negative. It is argued by counsel for defendants that there was evidence of a provocation sufficient to cause an 'irresistible passion' under the influence of which defendants stabbed the deceased. Seven Colorado cases are cited as authority for the point urged. The first of these in point of time is Crawford v. People, 12 Colo. 290, 20 P. 769; and the last is Read v. People, 119 Colo. 506, 205 P.2d 233. We have read each opinion cited and have no hesitancy in saying that not one of them is applicable to the facts of this case, concerning which there is little or no dispute. We agree that, as stated in Read v. People supra, when there is competent evidence which could conceivably reduce a homicide to manslaughter, the defendant is entitled to an instruction thereon. No such evidence can be found in this record.
A review of the facts of each of the cases cited by counsel for defendants discloses that the homicides involved occurred during the affray, and that the homicides were unintentional, accidental, a result of misadventure, or in self-defense, and there was testimony to these facts. Under those circumstances, which are not present in the instant case, we held it was error not to instruct as to manslaughter. However, another principle of law applicable here in just as firmly established in Colorado. In the case of Smith v. People, 1 Colo. 121, the court said:
'If, in a case of felonious homicide, the evidence shows the killing to have been deliberate and intentional, there is no question of manslaughter presented, and therefore no reason for submitting that question to the jury.'
This principle ever since has been followed by this court. One of the more recent decisions in which the rule was applied was Williams v. People, 114 Colo. 207, 158 P.2d 447, 159 A.L.R. 509. In the instant case the evidence discloses a case of deliberate and intentional homicide, and the rule of the Smith case, supra, applies. The court did not err in refusing defendants' tendered instruction No. 1.
It is argued strenuously that defendants had been engaged in 'mutual combat' with others (but not with deceased); that one of them had received a 'blow with a chain'; and that it became a jury question as to whether he acted in a state of 'heat of blood' induced thereby. The 'chain' to which reference is made is a small piece of what might well have been an oversized watch chain or an undersized leash chain. The deceased, under the undisputed evidence, had no part in any 'combat' mutual or otherwise. The 'mutual combat' which defendants had with others had terminated, resulting in a stab wound inflicted upon Sanchez by defendants. They were walking back to Chuck's Place after having vanquished their foes in any 'mutual combat' that they had. After having once walked past the car in which deceased was sitting they came back to it and, without justification or provocation of any kind whatever, they pulled deceased out of the car and inflicted the stab would with unquestioned premeditated intent to do so. Not one word in any case cited in the briefs herein can possibly be construed to support the proposition that defendants can avoid the consequence of their deliberate, intentional act on the ground of 'mutual combat' or 'hot state of the blood.' If during the progress of the fight between the defendants and Sanchez and his friend, defendants had unintentionally or accidentally injured or killed an innocent bystander a different situation would be presented and the cases cited by defendants' counsel would be applicable. The reference to Wharton on Homicide, 3rd ed. page 290, emphatically is not applicable to the facts in this case, and we are satisfied that the court was fully justified in refusing to consider that the 'mutual combat' doctrine was applicable.
Second: Did the trial court err in permitting Sanchez and Mares to testify to the fighting and stabbing of Sanchez which immediately preceded the attack made by defendants upon the deceased?
This question is answered in the negative. The court instructed the jury that the events which took place prior to the stabbing of deceased should be considered 'only so far as you deem them explanatory of the events leading up to and surrounding the acts charged in the information, and evidence of any crime committed by the defendants or either of them prior to the acts with which they are charged in the information must not be considered by you for any purpose except that of determining the intent with which the acts charged in the information is done, * * *.' The evidence was properly admitted for the purposes to which it was limited by this instruction. Torbert v. People, 113 Colo. 294, 156 P.2d 128; Perry v. People, 116 Colo. 440, 181 P.2d 439.
There is another well-established rule under which the evidence was clearly admissible. Other offenses may be shown in evidence when they are so interwoven with the principal transaction that it is necessary to show them in order to give a fair and true understanding of the offense which is charged in the case at bar. Abshier v. People, 87 Colo. 507, 289 P. 1081.
Third: Did the trial court err in giving Instruction No. 7 which was the statutory definition of murder in the first degree?
This question is answered in the negative. It is argued that because the instruction contained the full statutory definition without striking therefrom the reference to murder 'by poison, or lying in wait, or torture,' error was committed in that instructions were given concerning which there was no evidence. The instructions must be taken and considered as a whole. By other instructions given, the issues were properly defined and limited and no misunderstanding thereof could possibly have arisen in the minds of the jury. Moreover, the jury did not return a verdict of guilty of first degree murder. Assuming that the instruction was erroneous (which we do not hold) defendants cannot complain under the well-established rule which we quote from Walker v. People. 126 Colo. 135, 248 P.2d 287, 299, as follows:
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