Ballay v. People, 21416

• Decision Date: 02 August 1966
• Docket Number: No. 21416,21416
• Citation: 160 Colo. 309,419 P.2d 446
• Parties: John Robert BALLAY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 446

419 P.2d 446

160 Colo. 309

John Robert BALLAY, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 21416.

Supreme Court of Colorado, En Banc.

Aug. 2, 1966.

Rehearing Denied Nov. 19, 1966.

Mellman, Mellman & Thorn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., James W. Creamer, Jr., Denver, for defendant in error.

MOORE, Justice.

Plaintiff in error, hereinafter referred to as the defendant, was convicted of the crime of second degree murder following a trial during which the jury was instructed on the law as to first degree murder. Motion for a new trial was filed and denied. The defendant was then sentenced to from twelve to twenty-five years in the state penitentiary.

The victim of the killing was one Juan Encinas who entered an employment agency in Denver about noon on December 10, 1962. A few seconds later the defendant entered the same place of business. Encinas proceeded toward the back of the room through a gateway which was three feet five inches high. The defendant followed him. An argument ensued and when Encinas turned to face the defendant, the defendant shot him twice. After the shots were fired Encinas wrestled the defendant to the floor. During the fracas, the gun fell from the defendant's hand and he ran from the employment agency. An examination revealed that one of the shots grazed the neck of the deceased and the other penetrated his heart causing his death within an hour. The foregoing took place in the presence of witnesses, all of whom identified the defendant as the man with the gun.

There was some evidence that the defendant had suffered a knife cut during an altercation with Encinas about one and one-half years prior to the homicide, and that one of the purposes that defendant had in shooting him was partly to seek revenge for the former injury. The defendant was, to some extent, under the influence of liquor when he was arrested in a local tavern a short time after the shooting. He stated to the arresting officer, 'I know what you want.'

At the police station no questioning of the defendant was had. As one police officer stated, 'Like I say, he was affected by the alcohol to the point where he was rambling and talking excitedly, and everybody that was there could hear what he said.' Counsel for defendant readily admit that the defendant told his story to police without any attempt on their part to secure information. At page 2 of their brief we find the following statement:

'Following the shooting the defendant was placed in custody and taken to Police Headquarters where Without questioning he told his story to the police officers.' (Emphasis supplied.)

This story as related by Sergeant Montoya appears in the record as follows:

'He told me he had occasion to shoot a man--a man who had had occasion to cut his person with a knife about a year and a half prior; that this individual was known to him and that his purpose in shooting the man was partly revenge for the former injury suffered by him. He also informed me that the weapon which was used in this shooting was his own; that he had bought it a few months prior to the incident from a truck driver in the area around Wiggins, Colorado.

'He stated that he didn't have the weapon on him when he saw Mr. Encinas, the deceased, but that he had gone up to his room in the New Central Hotel and secured the weapon and had brought it back down to the Hinky-Dink Bar located in the 1700 block on Market Street; that he was unable to locate the deceased there but was able to locate him a few doors away at the employment agency at 1709 Market Street. Then and there and at that location, he had occasion to shoot him. He also asked me if the man had expired. In other words, he said, 'Is he dead?' I said, 'Yes. I must inform you that it is my information that the man has died * * *' He says, 'I meant for him to die.''

The defense offered on behalf of the defendant consisted largely of proof that Encinas had injured defendant in a knife fight some year and a half prior to the shooting; that Encinas' reputation as a law-abiding citizen in the community was bad and that defendant's reputation was good, notwithstanding that he had been arrested and convicted on several occasions for drunkenness, vagrancy, disturbing the peace, and tampering with an automobile.

The defendant took the stand and asserted that he could only remember a few of the events that occurred. He said he remembered wrestling with the deceased, and that he thought both he and Encinas were holding the gun when it was discharged. Captain Shumate of the police department testified that the reputation of the deceased as a peaceful and law-abiding citizen would be described as 'bad' rather than 'good.' The police record of the deceased was present in court and although no formal offer of this record as an exhibit was made, it appears that the trial court would not allow it to be introduced. One Wetmore, was called and evidence was offered by him to the effect that some time in 1961 the deceased had attacked him with a knife. Counsel stated that the evidence was offered to establish the...