English v. People
| Decision Date | 30 May 1972 |
| Docket Number | No. 24000,24000 |
| Citation | 497 P.2d 691,178 Colo. 325 |
| Parties | Clarence R. ENGLISH, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Rollie R. Rogers, Colo. State Public Defender, Truman E. Coles, Asst. State Public Defender, Robert T. Burns, David G. Manter, Thomas M. Van Cleave, III, Deputy State Public Defenders, Denver for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Eugene C. Cavaliere, Asst. Atty. Gen., Denver, for defendant in error.
Defendant Clarence English was charged with first-degree murder in the shooting death of Leon Leslie, a/k/a 'Giggy.' A jury found the defendant guilty of second-degree murder and he was sentenced to the penitentiary. The defendant alleges several grounds of error which he maintains require a reversal of his conviction. We do not find any reversible error and we therefore affirm the judgment of conviction.
The victim met his death on November 25, 1967 at a house in Denver. The prosecution presented three eyewitnesses to the shooting. Their testimony was essentially the same. According to these eyewitnesses, the defendant came to the house sometime around midnight to see his girlfriend. At that time Giggy was asleep in a chair by the front door. The defendant stayed in the room for about ten minutes, then went upstairs to see his girlfriend. He was with her for five to ten minutes. He then came downstairs and left the house. A few minutes later the defendant returned, after 'busting' through the front door with a .22 calibre pistol in his hand. He proceeded to fire three shots into the sleeping form of Giggy, who awoke and stumbled toward the kitchen. The defendant then fired three more shots at the victim. Immediately thereafter, the defendant left the premises. Giggy was pronounced dead on arrival at Denver General Hospital.
The prosecution also presented other evidence as to intent and premeditation to the effect that defendant had previously made known to a third party his intention of 'downing' Giggy.
The defendant testified that he acted in self-defense. He related that about a month prior to the shooting, Giggy had stolen his automobile, the trunk of which contained a record player. Defendant's automobile was later recovered at Giggy's residence but the record player was missing. The defendant testified that he made several attempts to reclaim the record player from Giggy, but that his attempts were resisted. On one such occasion, according to the defendant, Giggy called him a lying s.o.b. and said that if the defendant did not leave him alone, he would kill him. Also, on this occasion, Giggy reached toward his back pocket as though to draw a gun, but was restrained by another person. The defendant, as well as three police officers, testified that Giggy had a reputation for violence and physical brutality.
The defendant testified that just prior to the shooting, Giggy was not asleep, and that he was seated on a couch facing the front door of the house. According to the defendant, when he entered the house the second time, Giggy sprang from a sitting position and reached for his back pocket. The defendant testified that because of his knowledge of Giggy's personality and reputation, and his awareness that Giggy usually carried a gun in his back pocket, he drew his own weapon from his coat pocket and defended himself by shooting Giggy. The defendant maintained that he intended only to disable Giggy.
The defendant first alleges that the trial court committed reversible error in refusing to instruct the jury on voluntary manslaughter as requested by the defendant.
The defendant and the People are in agreement as to the test to be applied in determining whether to include instructions on any of the lesser degrees of homicide. In Read v. People, 119 Colo. 506, 205 P.2d 233, we held that the proper test is as follows:
'There is nothing in our criminal practice more thoroughly established or definitely settled than the principle that when there is any evidence, however improbable, unreasonable or slight, which tends to reduce the homicide to the grade of manslaughter, the defendant is entitled to an instruction thereon upon the hypothesis that the same is true, and that it is for the jury, under proper instructions, and not for the trial judge to weigh and consider the evidence and determine therefrom what grade of crime, if any, was committed and that the court's refusal to instruct is reversible error.'
The above test was recently considered in Sanchez v. People, 172 Colo. 168, 470 P.2d 857.
Therefore, if in this case there was presented any evidence which would tend to prove the elements of voluntary manslaughter, an instruction thereon should have been given. On the other hand, if there was no evidence presented from which a jury could find the defendant guilty of voluntary manslaughter, the instruction was properly refused. McKenna v. People, 124 Colo. 112, 235 P.2d 351; Berger v. People, 122 Colo. 367, 224 P.2d 228; Demato v. People, 49 Colo. 147, 111 P. 703; Keady v. People, 32 Colo. 57, 74 P. 892; Mow v. People, 31 Colo. 351, 72 P. 1069; Smith v. People, 1 Colo. 121.
Under the facts of this case, the evidence must be analyzed on the basis of the statutory definition of voluntary manslaughter. This analysis must also relate to the selfdefense testimony of the defendant. Verbatim quotations from the pertinent statutes are necessary in order to illustrate that in this case, the alleged facts which defendant testified about to show self-defense, did not also tend to prove any of the elements of voluntary manslaughter. Under a variety of other fact situations in a homicide case, the self-defense evidence could conceivably also be a basis for a manslaughter instruction.
C.R.S.1963, 40--2--4 defines the crime of manslaughter as:
C.R.S.1963, 40--2--5 states:
'In cases of voluntary manslaughter there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite an irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.'
C.R.S.1963, 40--2--6 provides with reference to voluntary manslaughter, that:
'The killing must be the result of that sudden violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing, sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder.'
Finally, C.R.S.1963, 40--2--15 provides:
A consideration of each of the above quoted statutes illustrates the difference between a killing which is done or caused by a provocation (voluntary manslaughter) and one which is done in self-defense. In the former, while there is no strict requirement that the act constituting the provocation occur immediately before the killing, Ferrin v. People, 164 Colo. 130, 433 P.2d 108, if there is evidence of a sufficient interval between the provocation...
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...the question must be submitted to the jury. People v. Cornelison, 44 Colo.App. 283, 616 P.2d 173 (1980); see also English v. People, 178 Colo. 325, 497 P.2d 691 (1972). This is not the situation Instead, the assault in this case occurred only approximately fifteen minutes after the provokin......
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...by a "serious and highly provoking act," sufficient to "excite an irresistible passion in a reasonable person." English v. People, 178 Colo. 325, 497 P.2d 691 (1972); Sanchez v. People, 172 Colo. 168, 470 P.2d 857 (1970). Therefore, under the statutory scheme as it is applied by the courts,......
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Sanchez v. People, 90SC262
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People v. Osborn, s. 77-744
...this case substantially complied with the instruction approved by the Court in Thomson, supra. However, relying upon English v. People, 178 Colo. 325, 497 P.2d 691 (1972), the People contend that the rule in Thomson should be given prospective effect only. We In Martinez v. People, 172 Colo......