Davidson v. People

• Decision Date: 01 April 1878
• Citation: 4 Colo. 145
• Court: Colorado Supreme Court
• Parties: DAVIDSON v. THE PEOPLE.

4 Colo. 145

DAVIDSON v. THE PEOPLE.

Supreme Court of Colorado

April, 1878

Error to District Court of El Paso County.

THE plaintiff in error was indicted for the crime of murder at the February term, 1877, of the district court of El Paso county, and at the same term tried and convicted of manslaughter. On the trial the plaintiff in error set up as defense: First, that, at the time of the homicide, the deceased, Francis M. Brown, intended by violence or surprise then and there to kill the plaintiff in error. Second, that if deceased did not so intend the plaintiff in error honestly so believed, and upon reasonable grounds, and acting upon such fears he shot and killed the deceased.

Mr. G G. SYMES, and Messrs. WELLS. SMITH & MACON, for plaintiff in error.

A. J SAMPSON, attorney-general, for defendant in error.

ELBERT J.

The rule respecting the admissibility of threats of the deceased against the prisoner in a case of homicide where the threats have not been communicated to the prisoner is stated by Mr Wharton (Crim. Law, 1027*) 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 it may be relevant to show that at the time of the meeting the deceased was seeking the defendant's life.'

This statement of the rule is cited and approved by the Supreme Court of the United States in the case of Wiggins v. The People, etc., 3 Otto, 467. The reasons upon which the rule is founded are ably and clearly stated by Mr. Justice GROVER in the case of Stokes v. The People, 53 N.Y. 174. He says: 'Evidence of threats made by the deceased which had been communicated to the accused were received by the court. Proof of the latter facts was competent as tending to create a belief in the mind of the accused that his life was in danger, or that he had reason to apprehend some great bodily harm from the acts and motions of the deceased, when in the absence of such threats such acts and motions would cause no such belief. But why admissible upon this ground? For the reason that threats made would show an attempt to execute them probable, when an opportunity occurred, and the more ready belief of the accused would be justified to the precise extent of this probability. But an attempt to execute threats is equally probable when not communicated to the party threatened as when they are so; and when, as in this case, the question is whether the attempt was in fact made, we can see no reason for excluding them in the former that would not be equally cogent for the exclusion of the latter, the latter being admissible for the reason that the person threatened would the more readily believe himself endangered by the probability of an attempt to execute such threats.' See, also, Campbell v. The People, 16 Ill. 18; Holler v. The State, 37 Ind. 57; People v. Scroggins, 37 Cal. 676.

The case at bar illustrates the rule.

The witness Jackson Martin testified: 'D. was at the west side of room; main entrance about five or six feet from where D. stood; B. proceeded to stove at east end of room, about eight feet from the counter; didn't see anybody enter the room with B.; B. passed behind D.; B. lifted his hand when he reached the stove; fire in stove I was standing about nine or ten feet from D.; B. east of D. about fifteen or twenty feet; D. said he did not steal Rule's cattle; D. was standing at counter, his face toward B.; turned his face toward B. at the time he stoke; he said also, 'anybody who said that, was a liar;' quick as D. said that, B. turned toward D., and put his right hand in his pocket; saw butt of a revolver sticking out of B.'s pocket; could see it sticking out; was in B.'s right hand; then a shot was fired; must have been D. who fired; shot hit B.; another shot fired about a minute and a half after first shot; * * * B.'s right side was facing me; more toward D. than toward me; saw butt of revolver before first shot was fired, at time of D.'s making remark; after D.'s saying he didn't steal those cattle; about a minute or minute and a half after D. had said, 'You, Brown, have said it'; it was only a little way out; pretty sure it was a revolver; plain enough it was the butt of a revolver; had a better look at him than any one else; closer than H. Simpson; people watching close could have seen it; could see the wood and the iron strap that goes over the breech; can't tell kind of wood, nor calibre, nor size; it was in right pants pocket; put his hand in pocket right at stove, and before he turned; can't tell if he took his hand out in turning; after...