Bershenyi v. People

• Decision Date: 02 June 1922
• Docket Number: 10084.
• Citation: 207 P. 591,71 Colo. 432
• Parties: BERSHENYI v. PEOPLE.
• Court: Colorado Supreme Court

207 P. 591

71 Colo. 432

BERSHENYI v. PEOPLE.

No. 10084.

Supreme Court of Colorado

June 2, 1922

Error to District Court, Garfield County; John T. Shumate, Judge.

Josef Bershenyi was convicted of murder in the first degree and brings error.

Reversed.

Burke J., dissenting in part.

C. W. Darrow and Noonan & Noonan, all of Glenwood Springs, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and Charles H. Sherrick, Asst. Atty Gen., for the People.

TELLER J.

Plaintiff in error was convicted of murder in the first degree, and brings error. He will hereinafter be mentioned as defendant.

He was convicted of killing one Page in an altercation in the streets of Glenwood Springs, where defendant was delivering milk. Page had recently been in his employ, and on the day in question went into the street, where defendant stood by the side of his truck, and demanded a small balance of wages. The only witness testifying as to what was said was the defendant himself. Other witnesses testified to the fact that there was something of an altercation, and that the defendant struck Page with a club taken from his truck, from which assault Page died some weeks later. Defendant claims that he acted in self-defense, testifying that during the conversation, in which Page recited a series of grievances against the defendant, Page had in his hand an open knife, that finally he lunged at defendant with the knife, and that the fatal blow was struck as a result of that attempt by Page to cut defendant.

There was testimony by a witness, who assisted in stopping the fight, to the effect that defendant at the time exclaimed that Page had tried to cut him.

One of the errors assigned is that the court excluded the offered testimony of three witnesses to the effect that Page, between February 1st and February 8th, the date of the assault, had expressed great hostility to the defendant and had stated that he would be justified in killing him if he wanted to. This testimony was excluded upon the theory that it was offered as a threat, and the fact that it had not been communicated to defendant was made the ground of its exclusion. Counsel for defendant explained in making the offers that the purpose of the testimony was to show a state of mind in Page which would tend to corroborate the testimony of the defendant that Page had assaulted him with a knife. The rejection of the testimony was error. Its admissibility is clear under the rule laid down in Davidson v. People, 4 Colo. 145, where the court quotes from Wharton's Criminal Law as follows:

'Where the question is as to what was deceased's attitude at the time of the fatal encounter, recent threats may become relevant to show that this attitude was one hostile to the defendant, even though such threats were not communicated to defendant. The evidence is not relevant to show the quo animo of the defendant, but may be relevant to show that at the time of the meeting the deceased was seeking the defendant's life.'

The fact that the statements made by deceased were not, strictly speaking, threats, is not material; the question being what was his attitude of mind. These statements, offered to be proved, had all been made within a week, and they therefore come within the rule that such evidence must concern the feeling of the party within a very recent time. The fact that he made hostile statements to three different persons during that week tends strongly to show how he felt toward the defendant.

It is further assigned as error that the court sustained an objection to a question to the defendant as to his intent when he struck Page. Under the authorities, the exclusion of that testimony was error.

In Wharton's Criminal Evidence, § 431, it is said 'Ordinarily, as shown elsewhere, a witness cannot be examined as to another person's motives, but as to the accused's own motives, when relevant, he may be examined in chief, or upon cross-examination. In proving self-defense, he is entitled to testify to the jury that at the time of the act charged, he believed himself to be in danger of his life. * * * While such answers are not conclusive, they cannot be ignored, but must be considered in connection with all other evidence in the case. Where an...