Covington v. People

• Decision Date: 02 April 1906
• Citation: 85 P. 832,36 Colo. 183
• Parties: COVINGTON v. PEOPLE.
• Court: Colorado Supreme Court

85 P. 832

36 Colo. 183

COVINGTON v. PEOPLE.

Supreme Court of Colorado

April 2, 1906

Error to District Court, El Paso County; Robert E. Lewis, Judge.

Henry Covington was convicted of murder in second degree, and he brings error.Affirmed.

T. J. Black, for plaintiff in error.

N. C Miller, Atty. Gen., and I. B. Melville, Asst. Atty. Gen., for the People.

GODDARD, J.

The plaintiff in error, defendant below, was convicted of the crime of murder in the second degree and sentenced to the state penitentiary for a term of from 10 to 12 years at hard labor.

Upon the overruling of a motion for a new trial, counsel for defendant interposed a motion in arrest of judgment, for the reason that the information does not state facts sufficient to constitute murder in either degree.The information charges that: 'Henry Covington, on the 4th day of January, A.D. 1905, at the said county of El Paso, did then and there in and upon the body of one Winnie Adams feloniously, unlawfully, willfully, and of his malice aforethought commit an assault, and she, the said Winnie Adams, then and there feloniously, unlawfully, willfully, and of his malice aforethought did kill and murder.'It is contended that bye using the pronoun 'she' the pleader charges the deceased with the commission of murder and that the defendant is simply charged with an assault.While the information is subject to criticism because of the wrongful use of the pronoun, it at most amounts to only a grammatical error, and there is no doubt that, when taken in connection with the other averments, the information charges that the defendant killed Winnie Adams.It is well settled that grammatical errors should be disregarded if the real intention and meaning of the information is not obscured thereby.In Dickson v. State, 62 Ga. 589, the court, in considering an indictment where the gender and number of two persons were involved, thus disposed of a like objection 'This is an unsightly literary blemish, but not a grave legal infirmity.In school the composition would not pass but it may be tolerated in the courthouse.The meaning is clear, though the verbal inaccuracy is glaring.We may regret that those who write affidavits and warrants guard their pronouns with so little vigilance, but we cannot hold, as matter of law, that their bad grammar vitiates the documents.'Section 1433, Mills' Ann. St., provides that: 'No motion in arrest of judgment or writ of error shall be sustained for any matter not affecting the real merits of the offense charged.'The use of the wrong pronoun did not affect the real merits of the offense charged.The defendant was in no way misled or prejudiced by the use thereof.The court did not err in overruling the motion.

It appears from the undisputed testimony that while somewhat under the influence of liquor the defendant, on the evening of the 4th of January, 1905, visited the house of Winnie Adams, the deceased, where were present Samuel Terry, Fred Hopkins, Bailey Trimble, and the deceased; that upon his entering the house Hopkins advanced to shake hands with the defendant, who drew a revolver and said, 'Don't come any nearer me, I will shoot you,' whereupon Hopkins backed off, and the defendant added, 'No, I don't mean to hurt you or anybody,' and threw his gun upon the floor, saying: 'I don't mean to hurt anybody.I want to show you that it is a safety.It is as safety a gun as a man can carry.'Hopkins picked the gun up and placed it upon the table or dresser.After remaining there some time the defendant said: 'I believe I will go home.Give me my gun.'That he(Hopkins) gave the defendant the gun, and defendant started to go and said to Terry, 'I want to see you.'Terry went out of the house with him, and while outside talking the deceased went out to get some coal.What occurred when she stepped out of the door is described by Terry as follows: 'Then Winnie Adamsshe comes out the door.When she throws the door open the light was right on us, you know.Well, she calls me, 'Step here a minute, Sam,' and I said, 'Excuse me, Mr. Covington,' so I turns my back off and walks about four steps or five.He fired this gun just like that, bang! and she hollered and had the gun pointed just like that.Q.Now, where were you and Winnie Adams?A.Well, I was standing, like she come out the door here, and I was standing something like this, and he was right over there, and he had the gun on me like that.She hollered, 'Oh, I am shot!I am shot!' and ran on in the house.Well, I goes on in behind her.* * * Q.Did the bullet hit you?A.Yes, it glanced my finger right there, and then he said like this, 'Close that door."Upon cross-examination: 'Q.Yousay, just as you turned your back to them, the shot was fired?A.Yes, sir.Q.As you turned your back to Covington?A.Yes, sir.Q.Youweren't looking at him, then, when the shot was fired?A.No, sir; I didn't exactly have my back turned on him when he fired.Q.But you didn't see him at the time the shot was fired?A.No. Q. You heard but one shot?A.That is all.* * * Q.Where did you say the bullet struck you?A.I said it glanced my finger.Q.Justpoint out to the jury the fingers or the finger that it glanced?A.Right there [showing jury].Q.The fourth finger of the right hand?A.Yes, sir.Q.How were you standing at the time you received the shot?A.Well, I was standing just about at the side, something like this, and he was standing over there; a straight shot.Q.Were you north, south, east, or west of him?A.I was on the side of her here.Q.Youwere at the side of her?A.Yes, sir.Q.Was she exactly north of you, or how?A.She was exactly, just like me and you, sitting here this way.Q.Were you facing her, or sideways, or how?A.I was going up to her, and stopped sideways to her.She was bending over picking up coal.Q.And you were between her and Covington?A.Yes; sort of angling like, you know.Q.Near what door was she standing?A.She was standing near the south door.Q.About how far was she from the house?A.Well, she was about two feet, I guess, from the house.Q.How far was Covington away when you last saw him?A.Well, Covington was about six yards off from the door.'The defendant testified: That he never had any difficulty or misunderstanding with Sam Terry.Relations with him were friendly.Never had any difficulty or misunderstanding with Fred Hopkins or with Bailey Trimble.'Terry gave me a drink of whisky at about 6 o'clock January 4, 1905.Went to Winnie Adams' house about 8 or half past 8.Drank liquor a good many times.He called it red whisky.Q.Did you have any trouble with anybody there?A.No, sir, not a word.Q.Do you remember of having any trouble with him [Hopkins]?A.No, sir.Q.How long had you been there when he[Hopkins] came?A.When I came over to the house Mr. Hopkins and Miss Adams was standing outside the door talking.Q.How long were they on the outside after you went in?A.About 30 to 45 minutes.Q.Did you have any trouble with Hopkins after he came in?A.No. Q.Were you drunk or sober when Hopkins came in?A.Pretty well tanked up.Q.Do you remember what occurred after Hopkins came in?A.Yes, sir.Hopkins came in and Miss Adams went right behind, and Hopkins walked up to the stove and warmed his hands, * * * and sat down; and after that I don't remember anything else that occurred in the house that night.* * * Q.Did you intentionally fire that gun either at Winnie Adams or Terry, or even intentionally fire it off?A.I haven't fired any at all, not to my knowledge.Spent night of January 4th last at my house.Q.Where did you get your breakfast this morning, January 5th?A.At home.After breakfast went to work in the mines.Saw Terry.I says to him: 'Good morning, Sam.I hear I shot you last night, and Miss Adams.Can it be so?'He said, 'Yes.'I says, 'I am awfully sorry.'Q.When did you first learn that you were charged with the shooting?A.The next morning.Q.Who told you?A. Leftwich.I told him I didn't know anything about it.'We have stated the evidence thus fully in order that the merits of the objections to the giving and refusing of certain instructions may be better understood.

Error is assigned upon the giving of instructions Nos. 2 and 5 because therein the jury are told that the death penalty might be inflicted, in contravention of section 1176, Mills' Ann. St., as amended by Laws 1901, p. 153, c. 64, which provides, inter alia: 'Nor shall any person suffer the death penalty who shall be convicted upon circumstantial evidence alone.'It is insisted that there is no direct evidence as to the fact of the shooting, and that Terry's statement that defendant fired the shot is but an inference based upon surrounding circumstances, and not upon actual observation, and is, therefore, to be regarded as circumstantial evidence within the meaning of the statute.While it is true that the witness testified that he turned and walked towards the deceased, he describes how the gun was fired, and how the gun was pointed.He stated that he did not exactly have his back turned on defendant when he fired, and he then goes on to describe to the jury the position that he was in, and says: 'I was standing something like this, and he was right over there, and he had the gun on me like that;' that the bullet glanced his finger.In answer to the question, 'How were you standing at the time you received the shot?'he answered, 'Well, I was standing just about at the side, something like this, and he was standing over there; a straight shot;' that he was 'sort of angling between the deceased and Covington.'Furthermore, Hopkins testifies that when Winnie Adams came in the door she screamed that she was shot, and when asked who shot her she sai...