Hill v. People

• Citation: 1 Colo. 436
• Parties: HILL v. THE PEOPLE.
• Decision Date: 01 February 1872
• Court: Colorado Supreme Court

1 Colo. 436

HILL v. THE PEOPLE.

Supreme Court of Colorado

February, 1872

Error to District Court, Arapahoe County.

THE indictment was in the common-law form for murder.

At the trial, James Whitsell testified: That an altercation occurred between the prisoner and the deceased, Elija Williams, at a saloon in Denver, on the evening of the 15th of July, in which harsh words were used but no blows were struck; the prisoner went away and returned after an absence of half or three quarters of an hour with a pistol; that prisoner said to deceased, 'you d___d black s___n of a b___ch, I am ready for you now;' that one George Lyon seized Hill, and a struggle ensued in which deceased participated, and the contending parties passed into a back room, where the shooting took place. Witness did not see the shooting; he testified that the deceased was not armed.

Thomas J. Martin gave the following account of the second altercation between prisoner and deceased. When Hill came in I heard him say to Elije, 'You've called me a black s___n of a b___h,' and Elije says 'Yes, and what are you going to do about it;' Hill says to Williams, 'If you don't take it back I'll hurt you;' Williams jumped up from his seat and started towards Hill; Hill drew a pistol from his coat pocket and says to Elije, 'If you don't stay back I'll hurt you;' George Lyon caught Hill by this time and pushed him into the billiard room, drew the door to between him and Williams, and Mr Thompson catched Williams in the opposite room. Elije pulled Thompson loose from him and jerked the door open; George Lyon says to Elije, 'Why don't you go away and let him alone;' George still had Hill, holding him, and Elije still made way toward Hill, and George let go Hill and started toward bar-room to call the proprietor of the house; before either of 'em got back from bar-room Hill fired a shot; in course of a minute or so after the shot was fired Williams clutched Hill and they tusseled a minute or so, and Thompson tried to part 'em; finally, either he parted 'em or Williams let go, I ain't certain which, and walked off from him. He then sat down on the floor first, then he laid down on flat of his back; that is, Williams; he said in a minute or so after he laid down, 'Who done it?' and immediately died; after they were separated, Hill immediately left the room and went out at the back door; Hill hit Williams when he shot; the shot hit Williams, and I believe it hit him in the point of the heart, I am not certain; I didn't examine Williams; he died three or five minutes after the shot; I believe Williams wasn't hurt any other way than by the shot; I don't know, and saw pistol which Hill had; it was a smallish seven-shooter; this shooting occurred in Arapahoe county, I believe, Colorado territory.

Harrison Bozier testified: That prisoner said to deceased, when he returned with the pistol: 'You d___m s___n of a b___h, I am here;' that deceased then started toward prisoner, and a struggle ensued, during which the fatal shot was fired.

George Lyon testified: That he took the prisoner into the back room and fastened the door, and that deceased broke through the door and said, 'Where is the d___d nigger; I will kill him.' Prisoner told deceased to keep away; deceased then sprang at prisoner, and prisoner fired the shot.

Ira Thompson testified: That when prisoner returned, deceased said to him, 'Hill, you back here;' prisoner said 'I don't want you to speak to me, you called me a s___n of a b___h, didn't you;' deceased said 'Yes, what are you going to do about it;' prisoner said deceased was a s___n of a b___h; deceased rose from his seat, jumped on the top of the table and said, 'G___d d___n you, I will kill you;' witness said. 'Williams don't hit that man;' deceased said, 'G___d d___n the nigger, I will kill him.' Lyon then took prisoner out and witness caught hold of deceased; deceased broke away from him and went into back room; a struggle followed between prisoner and deceased, during which deceased forced prisoner against the wall, and raised his hand to strike him, when the prisoner fired his pistol.

The testimony was voluminous, and it is unnecessary to insert all of it. Sufficient has been stated to show the principal points.

The charge to the jury was as follows:

If the homicide charged in the indictment has been established by the evidence to have been committed by the prisoner, the law in the first instance presumes that such killing was malicious in such sense as to hold the prisoner guilty of the crime of murder. The burden of showing circumstances of mitigation, justification or excuse is upon the prisoner, unless such circumstance sufficiently appears in the evidence on the part of the people.

If the jury find the prisoner guilty of murder, then they must also consider and find whether such murder was or was not premeditated.

If the jury believe, from the evidence, that prisoner and deceased, shortly prior to the occasion of the killing, had an altercation or controversy in which deceased used words of reproach or threats toward prisoner; that prisoner thereupon went away from deceased and returned presently armed with a pistol, intending to renew the altercation and quarrel with deceased, or to place himself in the presence of deceased with the purpose to provoke deceased to renew such quarrel, and in such quarrel to make use of the pistol in repelling the assault of deceased in case deceased should assault him; and that thereupon the prisoner returning with either such purposes, the altercation was renewed either by prisoner or deceased, and that an assault and struggle followed, and that the shot whereby deceased came to his end was fired by prisoner during such struggle, then the jury ought to find prisoner guilty of premeditated murder, without reference to who gave the first offense or was the aggressor in that particular occasion, and even though they also believe from the evidence that prisoner was in danger of life at the time of the shot fired. The arming and returning in such case raises a presumption of a deliberate purpose to kill, and the law permits no man to take life even in defense of his own life in a quarrel which he himself has provoked. And if the meeting of the prisoner and deceased upon the occasion of the homicide was but casual and not premeditated by prisoner, yet if prisoner, at such meeting, before any advance by deceased toward him, or any assault offered by deceased, made show of firearms, accompanying such exhibition by words of threatening toward deceased, then the jury will be justified in regarding the prisoner as the first aggressor, and as having provoked the assault of Williams which ensued, but in such case the jury should find the prisoner guilty merely, and not guilty of murder with premeditation. But if the jury find from evidence that the meeting and altercation of prisoner and deceased, upon the occasion of the shooting, was not premeditated by defendant, as supposed by the foregoing instruction; that the defendant, before the killing, attempted in good faith to evade the assault of deceased; that, by reason of the fierceness of the assault, the prisoner, taking into account the relative strength and activity of himself and deceased, and the previous threats, if any, made by deceased, was justified in believing that he could not escape such assault, and that from such assault he was in danger of life or limb or great bodily harm, then prisoner was justified in taking the life of deceased to prevent such injury.

Prisoner was justified in believing himself unable to evade the assault of deceased, if a man of reasonable firmness placed in the same circumstances would have indulged the same belief.

It is not necessary to justify the homicide as done in self defense, that defendant should show that he was in actual danger of life or limb, or could not have escaped the assault of deceased; it is sufficient if, under all the circumstances then existing, a man of reasonable prudence and firmness would so have believed.

After the jury had retired they were recalled, and an instruction not here recited was withdrawn from the consideration of the jury by the court. The court then proceeded to instruct the jury further, as follows:

That the law, in the first instance, presumes every accused person innocent of the crime charged, but if the crime charged be murder, and if the killing be proven, then a presumption arises that said killing was malicious. The law, however, makes no presumption from the fact of the killing, that such killing was deliberate, but requires the deliberation of the accused to be proven beyond a reasonable doubt before he can be found guilty of premeditated murder. But the presumption of malice which arises from the fact of the killing, devolves upon the accused the burden of showing to the satisfaction of the trial jury all circumstances of mitigation, excuse or justification, unless such circumstances be shown in the prosecution, and unless upon consideration of all the evidence, both on the part of the people and the prisoner, it appears by a fair preponderance of proof that the killing was done in lawful self-defense upon apparent necessity in a quarrel not provoked by accused; they ought not to acquit, nor ought they to find guilty of manslaughter and not guilty of murder, unless by a like preponderance of proof it appears that the killing was done in the sudden heat of passion and not of malice aforethought.

It will not suffice to acquit the defendant, that the jury are in doubt whether the killing was or was not done in self-defense, or was or was not done in a quarrel unprovoked by accused. Nor will it suffice to reduce the killing to manslaughter, that the jury are in doubt...