Carson v. People

• Decision Date: 09 April 1894
• Parties: CARSON v. PEOPLE.
• Court: Colorado Court of Appeals

36 P. 551

4 Colo.App. 463

CARSON v. PEOPLE.

Court of Appeals of Colorado

April 9, 1894

Error to district court, Bent county.

Kit Carson, Jr., was convicted of assault with intent to kill and brings error. Reversed.

Northcutt & Franks, for plaintiff in error.

Eugene Engley, Atty. Gen., Orlando Hitt, Dist. Atty., and H.T. Sale for the People.

THOMSON J.

The only question to be determined in this case arises out of a plea of autrefois acquit. The information charged "that Kit Carson, Jr., late of the county of Bent and state of Colorado, on the tenth day of December, in the year of our Lord one thousand eight hundred and ninety-one, at and within the county and state aforesaid, in and upon the said W.G Richards, in the peace of the people, then and there being did then and there unlawfully, feloniously, willfully, and of his malice aforethought, make an assault, and then and there, at and against and in contact with the said W.G. Richards, did unlawfully, feloniously, willfully, and of his malice aforethought, shoot a certain deadly weapon, to wit, a pistol, then and there loaded with gunpowder and leaden balls, which he, the said Kit Carson, Jr., then and there in his hand had and held, with the intent then and there him, the said W.G. Richards, unlawfully, feloniously, willfully, and of his malice aforethought, to kill and murder." To this information the defendant interposed a plea of former acquittal. It is averred in the plea that at a prior term of the same court, upon an information filed against him, charging him with the murder of one Manulita Richards, he was brought to trial; that a jury was regularly impaneled to try the cause; that the defendant was present, and the cause tried; that the evidence adduced on that trial as to the res gestae of the act charged was, and was bound to be, substantially and materially the same, and in effect the same, as would be brought out on the trial of this cause; that the transaction charged in the information filed in this cause was connected with, and inseparable from, the transaction charged in the former information; and that the facts upon which this charge of assault with intent to kill was based were the same as were adduced at the other trial. A copy of the record of the former case, and of the evidence at the trial, was incorporated into the plea. The charge contained in the information upon which the defendant was then tried was "that Kit Carson, Jr., on the tenth day of December, A.D.1891, at the said county of Bent, did then and there, in and upon one Manulita Richards, in the peace of the people then and there being, unlawfully, feloniously, willfully, and of his malice aforethought, make an assault, and that he, the said Kit Carson, Jr., a revolving pistol then and there loaded and charged with gunpowder and a leaden bullet, which said revolving pistol, he, the said Kit Carson, Jr., in his right hand then and there had and held, then and there unlawfully, feloniously, willfully, and of his malice aforethought, did discharge and shoot off, to, by, against, and upon and through the said Manulita Richards; and that the said Kit Carson, Jr., with the leaden bullet aforesaid, out of his revolving pistol aforesaid, then and there, by force of the gunpowder aforesaid, by the said Kit Carson, Jr., discharged and shot off as aforesaid, then and there unlawfully, feloniously, willfully, and of his malice aforethought, did strike, penetrate, and wound the said Manulita Richards upon and through the head of her, the said Manulita Richards, thereby then and there giving to her, the said Manulita Richards, in, upon, and through the head of her the said Manulita Richards, penetrating through the head of her, the said Manulita Richards, a mortal would, of which said mortal wound she, the said Manulita Richards, then and there died." It appears from the evidence given at the trial upon that information that on the 10th day of December, 1891, there was an affray between the defendant and W.G. Richards; that in the course of the encounter the defendant fired either two or three shots in rapid succession at Richards; and that Manulita Richards, who was the wife of W.G. Richards, being in the near neighborhood, was struck by one of the shots and killed. The jury returned a verdict against the defendant of involuntary manslaughter. To this plea of former acquittal the plaintiff demurred on the following grounds: First, that it was not shown by the allegations of the plea that the defendant was formally acquitted of the crime of an assault with the felonious and malicious intent to murder W.G. Richards; and, second, that the plea showed that the crime for which the defendant was formerly tried was a separate and distinct offense from that of assault with intent to kill Richards. The demurrer was sustained, and the defendant convicted.

For the purposes of this inquiry all the material allegations of the plea must be taken as true, and if it sufficiently appears from them that the necessary effect of the verdict in the former case was the defendant's acquittal of the offense with which he stood charged by the last information, the judgment must be reversed. The following is from our Criminal Code: "Involuntary manslaughter shall consist in the killing of a human being without any intent so to do; in the commission of an unlawful act or a lawful act which probably might produce such a consequence, in an unlawful manner provided, always, that where such involuntary killing shall happen in the commission of an...