Enyart v. People

• Decision Date: 02 June 1919
• Docket Number: 9406.
• Citation: 180 P. 722,67 Colo. 434
• Parties: ENYART v. PEOPLE.
• Court: Colorado Supreme Court

180 P. 722

67 Colo. 434

ENYART v. PEOPLE.

No. 9406.

Supreme Court of Colorado

June 2, 1919

Department 1.

Error to District Court, Crowley County; C. S. Essex, Judge.

A. F Enyart was convicted of voluntary manslaughter, and he brings error. Reversed, and cause remanded for new trial.

Sabin Haskins & Sabin, of La Junta, and Horace N. Hawkins, of Denver, for plaintiff in error.

Victor E. Keyes, Atty. Gen., and William Ramsey Asst. Atty. Gen., for the People.

BURKE J.

September 17, 1917, an information was filed against plaintiff in error (hereinafter designated as the defendant), charging him with the murder of one J. W. Black on February 25, 1917. The trial began November 13, 1917, and on November 18th following the jury returned a verdict finding the defendant guilty of voluntary manslaughter. A motion for a new trial was filed and overruled, and April 20, 1918, defendant was sentenced to the penitentiary for a term of not less than five nor more than eight years. From that judgment he brings error.

The defendant admitted the killing of Black, but contended that the shooting was done in self-defense. The prosecution's theory was that all of defendant's evidence tending to establish self-defense was false and manufactured. It is undisputed that ill feeling had existed between defendant and deceased for some time, and there is evidence on both sides of threats to take life. Defendant was a witness in his own behalf, and a portion of his testimony, which sufficiently sets forth his defense, may be abstracted as follows:

'I am a farmer and president of the First National Bank of Ordway. On February 25, 1917, I was living at my ranch nine miles from town. Black came to the bank that afternoon and asked me if I would be in town the next day. I told him I thought I would. He said he was stopping at the hotel and would call me up. I came into Ordway the next morning and left my automobile at the garage. I invariably carry a revolver with me when going away from home. I threw it in the car that morning and took it out when I got to Ordway. From the bank I called up Black at the hotel. He said he would be up in a few minutes. When he came I stepped to the door and opened it. I had taken off my overcoat and laid it on a settee in a little anteroom. I put the revolver in the inside overcoat pocket. I turned the overcoat inside out and laid it down so the butt of the revolver could be seen. Mr. Black came in, and we went to the directors' room. I sat down in a chair on the west side of the table and he took a chair on the east side. We began to talk about business matters. I had a few papers with me. He had asked me the evening before in regard to the contents of a contract; and claimed he had paid twenty-three hundred and some odd dollars, and I told him I would give him the contract and if he could ever show where he had paid I would refund the money. Something was said about some stock in a company. I owned three-fourths of it, and Mrs. Katherine Enyart (mother of Hazel Black, wife of J. W. Black) would own one-fourth. He asked if I would buy it. I told him I didn't think he had any right to sell it, and that I would make no deal with him. He kind of raised on the table, and says, 'You son of a b_____; I will fix you.' I saw he was drawing his gun from under his vest, and I wheeled in the chair and went out the door. I had a gun on the other side. I thought he was going to shoot me. He fired at me just about the time I left the chair. I ran to my overcoat, and before I got hold of it there was another explosion. Dick Potter came into the room about that time. About the time the second shot was fired I grabbed my gun. I just stepped to the door, and reached there for it. I don't think with my left foot I passed the door. I wheeled and fired at Black. About that time he shot again. I returned the fire after he shot at me. I was aiming to shoot him. I was afraid he would shoot me. I shot four times at Black. He kind of faltered, but still had his gun in his hand. I advanced towards him, and kept shooting as fast as I could. After I fired the fourth shot I went back in the room where I got the gun. I told Mr. Potter to call the sheriff.'

Such was defendant's version of this affray and----

'it was the duty of the court to tell the jury by what principles of law they should be guided, in the event they found the facts to be as stated by the accused.' Baird v. United States, 158 U.S. 550, 20 S.Ct. 1021.

Was this duty performed?

A portion of instruction No. 18 reads as follows:

'And you are further instructed that if a person kills another in self-defense it must appear that the danger was so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm the killing was absolutely necessary. And it must appear also that the person killed was the assailant, or that the slayer had really and in good faith endeavored to decline any further struggle before the fatal shot was fired.'

The words italicized are a verbatim copy of most of section 1763, M. A. S. (revised edition) 1912. The words used in the statute in lieu of 'fatal shot was fired' are 'mortal blow was given.'

Instruction No. 19 reads as follows:

'The court further instructs the jury that the right of self-defense is based upon the law of necessity, and is only given in emergencies to persons who are attacked and who do not bring on the difficulty themselves which results in the homicide, and to whom it may reasonably appear that their lives are placed in jeopardy or their persons in danger of great bodily injury, to defend themselves; that this right is based upon what reasonable persons, having due regard for human life, would do under similar circumstances, and the actions of defendant in this case must be measured by this rule.

'If from all the facts and circumstances in evidence in the case you believe that the defendant, acting as a reasonable man would under all the circumstances in evidence, had cause to fear that his life was in immediate danger, or that he was in danger of receiving immediate great bodily injury at the hands of the deceased, and if you further believe that he was acting through such reasonable fear and through honest conviction that such danger was immediately then impending or about to be inflicted by the deceased, and he shot and killed the deceased to prevent such impending danger of death or great bodily harm, then he would not be held liable though he might be mistaken as to the extent of the danger or whether it was real or apparent.'

Having read the instructions thus far, the question here naturally arising in the minds of the jurors would be, 'What, in such case, was the duty of defendant if there seemed a probability of escaping the threatened danger by flight?' The very next instruction, No. 20, answers that question thus:

'If a person is violently assailed he is not bound to retreat or flee if the assault is of such character that retreat or flight would invite danger, or of such character that a reasonable man, under all the circumstances, would be justified in

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