Henwood v. People

• Decision Date: 03 February 1913
• Citation: 129 P. 1010,54 Colo. 188
• Parties: HENWOOD v. PEOPLE.
• Court: Colorado Supreme Court

129 P. 1010

54 Colo. 188

HENWOOD v. PEOPLE.

Supreme Court of Colorado, En Banc.

February 3, 1913

Error to District Court, City and County of Denver; Greeley W Whitford, Judge.

Harold F. Henwood was convicted of murder in the second degree, and he brings error. Reversed and remanded.

John T Bottom, of Denver (Milnor E. Gleaves, of Denver, of counsel) for plaintiff in error.

Benj. Griffith, Atty. Gen., Archibald A. Lee, Deputy Atty. Gen Theo. M. Stuart, Jr., Asst. Atty. Gen., Willis V. Elliott, Dist. Atty., and John Horne Chiles, Chief Deputy Dist. Atty., all of Denver, for the People.

GABBERT J.

The plaintiff in error, whom we shall hereafter designate as defendant, was convicted of murder in the second degree, and sentenced to the penitentiary for life. He maintains that prejudicial error was committed at the trial in several particulars, only a few of which, however, will be considered.

The defendant shot and killed Sylvester L. Von Phul. For this homicide an information was filed charging him with murder. It was claimed that some of the shots fired by defendant at Von Phul struck George E. Copeland and caused his death, and an information was also filed charging the defendant with the murder of Copeland. The defendant was tried for the offense so charged, with the result above noted. Copeland was a bystander, taking no part whatever in the difficulty between the defendant and Von Phul, so that, if the defendant committed an offense in taking the life of Von Phul, he was guilty of a like offense in causing the death of Copeland. Ryan v. People, 50 Colo. 99, 114 P. 306, Ann.Cas. 1912B, 1232. At the outset counsel for defendant contends the evidence does not establish that any of the shots fired by defendant took effect in the body of Copeland, and for this reason urges the court should have sustained a motion to instruct the jury to return a verdict of not guilty at the conclusion of the testimony on the part of the people. We do not deem it necessary to either review or go into an extended discussion of the testimony bearing on this subject, as, in our opinion, it was ample to sustain the finding of the jury that shots fired by defendant at Von Phul struck and caused the death of Copeland. The testimony on the part of the prosecution bearing on the taking of the life of Von Phul is substantially as follows: Several persons, including Von Phul, Copeland, and the defendant, were in the barroom of the Brown Palace Hotel. The latter and others with him, at his invitation, were about to take a drink at the bar. Von Phul and a friend or acquaintance of his were also standing at the bar, waiting to be served. After the defendant had ordered the drinks for his guests, he approached Von Phul, to whom he made a remark, which the witnesses for the people did not hear or understand, when Von Phul turned, and with his fist struck him in the face, knocking him down, his head, as one of the witnesses for the people expressed it, striking the floor hard. As to what then occurred the witnesses do not altogether agree. On behalf of the prosecution the testimony is to the effect that Von Phul, after knocking the defendant down, turned his back upon him, and faced the bartender; that he did not attempt to pursue the defendant, or to draw a revolver, or put his hand to his hip pocket, or make any demonstration that he intended to pursue the defendant; that the latter raised from the floor, and attempted to draw his revolver; that it caught in his clothing; that he unfastened it; that two men seized, and tried to prevent him from shooting; that he pushed both aside, and commenced to shoot at Von Phul; and that during this time Von Phul did not advance on defendant, or make any hostile demonstration whatever. The defendant testified that on the afternoon preceding the shooting he had gone to Von Phul's room in the Brown Palace Hotel, where they were both guests, for the purpose of inducing him to return letters a woman had written to Von Phul, and which she had commissioned him to obtain; that on this occasion Von Phul struck him on the left temple with a shoe-tree, and drew a revolver, saying that he would kill the defendant if he were armed, but, as he was not, would not do so because, as Von Phul expressed it, 'They would have it on me.' The defendant also testified that on the following day and preceding the night of the encounter in the barroom he was informed that Von Phul had threatened to kill him; that these threats were communicated to him orally and by a note written by the woman mentioned; and that, after learning of these threats, he purchased the revolver with which he did the shooting. With respect to the affray in the barroom the defendant testified that Von Phul entered the room with a friend after he did, and stood at the bar, talking with this friend; that he changed positions, which brought the defendant and Von Phul quite close; that he, the defendant, then said to Von Phul, 'Won't you consider what happened yesterday afternoon?' to which Von Phul replied: 'I am going upstairs and I am going to grab that grey-haired (using a foul epithet) by the hair and pull him out of there, and show him who is master here'; that he, the defendant, then said, 'I am not going to allow you to get that over me,' and that Von Phul then said, 'I will get you first, you understand,' following this remark with a blow with his right hand on the point of defendant's chin, which felled him to the floor and dazed him for a minute. As to what then occurred, the defendant stated: 'As I lifted myself up from the ground, I remember this part, and that was, to see that man reach for the gun. I am sure he reached for it, and it was only a movement on my part to protect my life, and I pulled my pistol and shot him. I fired all the shots the gun contained, but I don't know how many.' In brief, as we understand the testimony of defendant, it is that as he was rising from the floor Von Phul looked at him and placed his right hand at his right hip pocket as though to draw a revolver, and that for this reason he drew his weapon and fired at Von Phul. Three of the shots fired struck Von Phul, one in his right wrist and the other two in his back. The defendant also testified he thought Von Phul was armed. There was testimony on the part of the people to prove that he was not, and probably some evidence tending to prove that the defendant knew he was not. The bartender testified that Von Phul stepped from his friend's left to his right; that this change of position placed him next to the defendant; that Von Phul asked his friend to be permitted to make this change, saying to him: 'There is a dirty _____. I licked him once, and will lick him again, but he won't fight.' This witness also stated, 'Henwood did not go over to Von Phul. Von Phul went over to Henwood;' and that Von Phul was looking at the defendant at the time the shots were fired. Another witness on behalf of defendant testified that Von Phul, after knocking the defendant down, was almost facing him, with his right hand on his hip pocket, when the defendant commenced shooting; while a third witness for the defendant testified that Von Phul, after knocking defendant down, looked at him with a sneer, and had one hand resting on the bar and the other on his hip, and that at the time the defendant was drawing his revolver Von Phul was looking directly at him. There was also testimony on the part of the people to the effect that defendant had threatened to kill Von Phul. This the defendant denied. The testimony stands undisputed that the defendant did not fire a single shot until after he was knocked down, and that he commenced shooting as soon thereafter as he could draw his revolver. The court instructed the jury on the law of murder in the first and second degree, and also on the law of self-defense, but stated to the jury: 'There is no manslaughter in this case.'

Sections 1625 to 1628, inclusive, R. S. 1908, are as follows:

'Manslaughter is the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever. It must be voluntary, upon a sudden heat of passion caused by a provocation apparently sufficient to make the passion irresistible, or involuntary in the commission of an unlawful act, or a lawful act without due caution or circumspection.'

'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.'

'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.'

'Involuntary manslaughter shall consist in the killing of a human being without any intent so to do; in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence in an unlawful manner, provided always, that where such involuntary killing shall happen in the commission of an unlawful act, which, in its consequences, naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.'

These statutory provisions are a recognition of the frailty of human nature, the purpose of which is to reduce a homicide committed in the circumstances therein contemplated to the grade of manslaughter, either voluntary or...