Herren v. People

• Decision Date: 15 October 1900
• Citation: 62 P. 833,28 Colo. 23
• Parties: HERREN v. PEOPLE.
• Court: Colorado Supreme Court

62 P. 833

28 Colo. 23

HERREN v. PEOPLE.

Supreme Court of Colorado

October 15, 1900

Error to district court, Arapahoe county.

John H Herren was found guilty of voluntary manslaughter, and he brings error. Reversed.

R. D. Rees, for plaintiff in error.

David M. Campbell, Atty. Gen., and Calvin E. Reed and Dan B. Carey, Asst. Attys. Gen., for the People.

CAMPBELL C.J.

The defendant was tried for the murder of his wife, convicted of voluntary manslaughter, and sentenced to the penitentiary for a term of eight years at hard labor. The information was filed February 10, 1899, and the defendant was at once arrested, and up to the time of trial incarcerated in the county jail. He was not able to employ counsel, and the court, under the authority of our statute, appointed an attorney to defend him.

The evidence tends to show that Mrs. Herren's death occurred in the forenoon of January 23, 1899. The theory of the prosecution was that it resulted from a blow on the head inflicted by her husband on the preceding day, and soon after 8 o'clock in the forenoon. Defendant and deceased were married in the state of Indiana in 1885. The wife had been married twice before, and had five children by the former husbands. Defendant was an industrious laboring man. He and his wife had difficulties occasionally, which apparently were caused partly by the misconduct of her children by the former marriages, or by reason of their interference with the domestic relations of the husband and wife, and in part by her ill health or intemperate habits, and by his ill nature. That there was fault of both husband and wife seems clear. In 1886 they came from Indiana to Colorado, and were soon followed by Mrs. Hughes, daughter of deceased by a former husband, her sister Mrs. Prentice, and the latter's husband. Disturbances between defendant and his wife again broke out, and continued intermittently until the time of her death. She was not a woman of good health or strong physique somewhat addicted to the use of intoxicating liquors, and particularly at menstruation acted strangely and as though she were mentally unbalanced. The son, about 12 years of age, testified that on the morning preceding the death of his mother, at the breakfast table, about 8 o'clock, his father and mother were engaged in a war of words in which the former used obscene and profane language, and that this continued up to the time when witness left for school, shortly after 8 o'clock. The father did not, while the boy was at home, strike the mother, or use any force or physical violence. The boy also testifies that he never saw an act of that sort. About 15 minutes after 10 o'clock the deceased appeared at the engine room of a power house, 100 or 200 feet from her residence, and there spoke to Mr. Wilson, a stationary engineer, and, when addressed, he asked her what was the matter; to which, as the witness Wilson testifies, she replied, 'He knocked me down, and I thought he knocked me cold;' and as testified to by Mr. Pike, who was present, 'Herren knocked me down, and most knocked me cold.' These witneses were, against defendant's objections, permitted to testify to this declaration. Nothing was said about the time when she was struck. They also testified that Mrs. Herren then seemed to be in a dazed condition, and that during the conversation with her, which was brief, she held one hand upon her head and the other upon her breast. She did not complain of pain, or that she apprehended anything serious from what occurred. No request was made to call a physician or for the officers of the law, and, after sitting in the room with the engineer for 10 minutes, she left, and went back to her tent, and soon after took a street car for East Denver, and this was the last they saw of her during her life. In passing from the tent in which she was living to the room where the engineer was, deceased went by a drug store, which directly faced her tent, in which there were people at the time she passed it with whom she was as well acquainted as with Wilson, and she also went in front of a waiting room of the street-railway company, in which, also, there were persons at the time, and she made no outcry and spoke to none of them of the blow she received. It seems that she went to the house of her daughter in East Denver, made no complaint whatever of any injury, remained there during that night, and during the forenoon of the following day sent for an express wagon, and, when it approached the house where she was, walked unaided down a flight of stairs, and out to the street, and without assistance got into the express wagon on the seat beside the driver. They started towards her tent, near Elitch's Gardens, and on the way she remarked to the driver that it was cool, and asked him his charges for going to her house and bringing back to the residence of her daughter a trunk and some articles of household furniture, to which the driver replied that she would see the cost on a slip of paper which he had handed her, and which she had put into her pocketbook. In the act of opening the purse, the driver observed that she suddenly leaned forward, and was about to fall from her seat; whereupon he took hold of her with one of his hands, restrained her from falling, and hastily drove to a mill near by for assistance, but, before it came, Mrs. Herren was dead.

The witness Prentice, husband of the deceased sister of Mrs. Herren, in reply to a question by the district attorney which did not call for any such answer, got before the jury the statement that the defendant had previously killed his wife's sister, wife of the witness. This testimony was stricken out by the court, and the same testimony was elicited from some of the other witnesses, which also was stricken out.

It is urged that the testimony in the case is entirely insufficient to sustain the verdict of guilty. Numerous errors are alleged, some of which, considered, but not passed on, are as fatal as those determined, but, as they will not likely occur at another trial, we pass them by.

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