Harris v. People

• Decision Date: 01 February 1904
• Parties: HARRIS v. PEOPLE.
• Court: Colorado Supreme Court

75 P. 427

32 Colo. 211

HARRIS v. PEOPLE.

Supreme Court of Colorado

February 1, 1904

Error to District Court, Mesa County; Theron Stevens, Judge.

Joseph Harris was convicted of voluntary manslaughter, and brings error. Reversed.

Steele J., dissenting.

J. S. Carnahan, F. C. Goudy, and L. F. Twitchell for plaintiff in error.

N. C Miller, Atty. Gen. (Henry J. Hersey, of counsel), for the People.

CAMPBELL J.

In the district court of Mesa county an information was filed charging defendant with the deliberate murder of Charles R. Sieber. Defendant admitted that he intentionally and fatally shot Mr. Sieber, but says he did so in defense of his own life. He was convicted of voluntary manslaughter, and sentenced to the penitentiary for a term of years. Three rulings made by the trial court are relied upon for a reversal: First, that one of the members of the jury which tried the case was unfair and prejudiced against defendant; second, the assistant to the district attorney, in his closing speech to the jury, made use of abusive language, to the hurt of defendant; third, the court erred in its instructions to the jury.

The judgment must be reversed because of errors in the court's instructions to the jury. The first two assignments pertain to matters that will probably not be presented if another trial be had, so they will not now be discussed.

As throwing light on the instructions attacked by defendant, the salient facts of the case will be helpful. The deceased, Sieber, was the president of a cattle company which owned a large number of cattle. The defendant, whose home ranch is just across the Colorado state line, in the state of Utah, was the owner of about 50 head of cattle which ranged upon the public domain. Some feeling existed between Sieber and defendant because the company, in driving its herd across his ranch, gathered up some of his cattle, and drove them from their accustomed range, and branded them with its brand. Upon the day when the homicide occurred, defendant and Sieber met, with no others present, about a mile distant from a pasture where the company's herd was being rounded up, and cattle was being cut out for shipment. They were on horseback, and, after some disputatious conversation relating to their differences, which led to no definite results, on the invitation of Sieber they rode side by side from the point where they met to this pasture, for the purpose of talking with Mr. Jones, the foreman of the company, about the same difficulties. When they arrived there, Jones' back was turned to them, and Sieber asked him if he was counting the cattle, to which an affirmative answer was given, whereupon Sieber, without saying anything to any one, turned his horse, and rode a distance of 400 or 500 feet to one Emory Knowles, an employé of the company who was assisting in the round-up; and, during this ride, Harris turned back into the herd a steer that tried to escape therefrom, and then remained on his horse, which was not moving, until after Sieber reached Knowles. The defendant then, as theretofore that day, had on his person a revolver, a portion of which protruded from his pocket in which it was carried, and it was seen by Sieber before they reached the pasture. Dunnan, another employé of the company, was stationed between Jones and Knowles; and, in passing him, Sieber remarked that that man (referring to Harris) drew a gun on him. Knowles was carrying, inclosed in a scabbard, a small Winchester rifle, which could be used with one hand. Sieber, without first saying anything to Knowles, reached over and pulled the gun from the scabbard, and, after securing the same, asked if it was loaded, and, upon being informed that it was, threw the weapon across the saddle, in front of him, and at once started back to the place where Harris was still sitting on his horse. As to the foregoing there is no conflict, and, for the purpose of the assignment directed against the instructions, it is necessary to consider further only the testimony of the defendant himself, and to point out the only conflict in the evidence as to the situation of the parties after Sieber got the gun. Defendant testifies that Mr. Sieber did not say a word to him when he left him and went in the direction of Knowles, but that he saw Sieber draw the gun from the scabbard and start towards him. Several of the employés of the cattle company were carrying guns or revolvers, which were visible to the defendant, and he says that when he saw Mr. Sieber coming towards him he apprehended trouble, and that, for his own safety, he at once started his horse on a walk towards deceased. As each one advanced, defendant says that deceased took his gun in one hand from the saddle where it had been lying, and pointed it in his direction. Defendant thereupon started his horse into a trot, and, as the parties approached nearer each other, Sieber drew the Winchester rifle down upon defendant, and, when they had come within 10 or 20 feet of each other, defendant threw his own revolver down on the deceased. Sieber thereupon exclaimed twice, 'I am not going to hurt you,' to which the defendant says he replied, 'Drop it, drop it,' but, as Sieber did not do so, he (the defendant), believing his own life in danger, and to save himself, fired in rapid succession three shorts, the result of which was the death of Sieber.

The case is remarkably free from serious conflict in the evidence as to its material points, so far as the same pertains to the instructions to be considered, and substantially the only difference is as to Sieber's demeanor and manner, and the position in which he held or carried the gun after leaving Knowles and starting towards defendant. Defendant and some of the people's witnesses say that Sieber held the gun in front of him, pointed some of the time in the general direction of defendant, while other eyewitnesses say that the gun was held down by Sieber's side, at least most of the time. But for our present purpose this conflict is not important.

1. Bearing in mind that the plea of self-defense was interposed, we proceed to consider the three instructions of which complaint is made. Instructions Nos. 8 and 9 given by the court, so far as they are pertinent to the objections here urged, are as follows:

'(8) The distinguishing feature between murder and manslaughter is the ingredient of malice. Malice aforethought is as essential an ingredient of murder as the act of killing. In the absence of malice, either express or implied, such killing is manslaughter, unless you should find from the evidence that such killing was done in necessary self-defense. * * *

'(9) The jury are further instructed that when the killing is done with a deadly weapon, or a weapon calculated to produce, and actually producing, death, malice may

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