Eckhardt v. People, 16757

• Decision Date: 23 June 1952
• Docket Number: No. 16757,16757
• Citation: 247 P.2d 673,126 Colo. 18
• Parties: ECKHARDT v. PEOPLE.
• Court: Colorado Supreme Court

Page 673

247 P.2d 673

126 Colo. 18

ECKHARDT v. PEOPLE.

No. 16757.

Supreme Court of Colorado, en Banc.

June 23, 1952.

Dickerson, Morrissey & Zarlengo, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

HOLLAND, Justice.

Plaintiff in error, who will be called defendant, was, by a jury, on September 8, 1950, found guilty of assault and battery under a two-count information filed February 2, 1950, charging voluntary manslaughter and assault and battery. January 12, 1951, after motion for new trial had been overruled, defendant waived application for probation and was entenced to the county jail for a term of eight months. Pending appeal, bond was fixed at $3,000.

Errors that are assigned are: 1. Verdict of the jury is contrary to the evidence in that it fails to establish beyond reasonable doubt the material allegations of the offense of which defendant was convicted; 2. Submitting both counts of the information to the jury and refusing to require the people to elect; 3. Error in submitting the charge of involuntary manslaughter; 4. Error in permitting the people to call witnesses on rebuttal who testified concerning matters which were part of the people's case in chief; 5. The giving and refusal of certain instructions.

The incident occurred at a poolhall in Ault, Weld county, Colorado, known as the 'H and R Poolhall.' Late in the afternoon of January 31, 1950, defendant went into the poolhall after a visit to a dentist in Greeley in the morning; he is a farmer living near Ault; about forty years of age; married, and the father of three children. He drank a beer or two, and about 5:30 o'clock P.M. went to a single occupancy toilet in the rear of the building and while there, a stranger to defendant, who, it later developed, was Maurico Valdez, opened the toilet door and began to molest defendant; an argument resulted; defendant says Valdez threatened to cut his throat; and while no blows were struck, there was a struggle between the two in pushing one another toward the front part of the poolhall, where the bartender ordered the two to go outside if they were going to do any fighting; no blows were struck at this time in the poolhall, but Valdez said to defendant if he wanted to fight 'Let's go outside.' Defendant was wearing a long overcoat and Valdez was wearing a lumber jacket. Valdez pulled off his coat and then defendant did likewise. Defendant went out the front door of the poolhall, closely followed by Valdez; defendant had just turned around when he was 'struck at' by Valdez, either missing him or just grazing him; thereupon defendant hit Valdez on the head with his fist, knocking him to the ground. The conflicting testimony is on the question of whether Valdez had gotten back up on his feet and was raising his arm as if to strike defendant, or whether he was on his hands and knees or on one hand and knee when defendant struck him a second blow on the head and he went down and did not get up, whereupon defendant went back into the poolhall. The fraces was witnessed by several people in the poolhall who were looking through the window or the glass door with vision partly blocked, all of whom testified, creating the conflict in the testimony as to the second blow. Defendant testified that Valdez was on his feet and about to strike him when defendant hit him the second time.

Valdez did not move after going to the ground the second time; a doctor was called and pronounced him still alive; he apparently died immediately thereafter, and was dead when the coroner arrived.

Valdez was a man of larger build than defendant, about sixty-six years old, and from outward appearances strong and healthy, but apparently in bad physical condition as disclosed from the testimony of Dr. Frances McConnell Mills, a Denver pathologist. To state the substance of her testimony briefly is to say that she found slight abrasions on the head and left hand; internal examination disclosed that the coronary arteries of the heart were tortous and thickened; marked hardening of the arteries; examination of the head revealed the inside lining was intact and no sign of a fracture, but there was an extensive hemorrhage, which was the cause of death, resulting from a break in the arteries which could have been the result of a blow to the head, or, in the advanced stage of arteriosclerosis, resulting from extreme exertion, extreme anger, or extreme excitement.

So far as proof is concerned, this leaves the cause of death a matter of speculation, and, of course, wholly lacking of sufficient proof that death was the result of anything other than generally natural causes.

The information charged voluntary manslaughter, a felony, in one count; the second count charged assault and battery, a misdemeanor, and any reason for separately charging this misdemeanor is not apparent. Counsel for defendant presented a motion for directed verdict on each count at the conclusion of all the evidence. At the suggestion of the district attorney, the court removed voluntary manslaughter, but left involuntary manslaughter and assault and battery to go to the jury after the defense had moved to require the people to elect between the two counts. It was error for the court to deny a dismissal of the first count of the information. It was further error to instruct the jury as to involuntary manslaughter, under the evidence in the case, which was wholly lacking in proof and insufficient to support a verdict of guilt, because such verdict would necessarily rest on conjecture as to the cause of death. Proof of the necessary elements of manslaughter was lacking and it was error to instruct on manslaughter if it was not sustained by the evidence. Battalino v. People, 118 Colo. 587, 199 P.2d 897; Smith v. People, 120 Colo. 39, 206 P.2d 826. Earlier cases relied upon by defendant in error did advance the rule that such error was cured if the defendant was not found guilty of the charge erroneously submitted; however, this situation existing in this jurisdiction was clarified by the latest pronouncement of this court on that question in the case of Tate v. People, Colo., 247 P.2d 665, in which the following is to be found: 'The fact that the trial court gave an instruction on first degree murder when the essential elements are missing in the proof, it must be said that the jury could easily infer by the giving of such an instruction that these elements were present in the case. It presents a fertile field for discussion among jurors not skilled in legal technique, for finding a welcome opportunity to compose differences and agree upon a compromise verdict. We must say that it was prejudicial error under the circumstances of this case to give the instruction on first degree murder in the absence of proof of the necessary elements.'

Throughout the defense, the thread of self-defense runs clearly as to both counts of the information. Aside from the possible confusion, or undue intimation caused by an instruction on involuntary manslaughter, which was improperly given, it no doubt could have had prejudicial effect on the jury in considering the nature of the true elements of assault and battery contained in the second count. The fact that since a death occurred, the jury could easily conclude that the court believed...