Jabich v. People

• Court: Colorado Supreme Court
• Writing for the Court: GARRIGUES, J.
• Citation: Jabich v. People, 58 Colo. 175, 143 P. 1092 (Colo. 1914)
• Decision Date: 02 November 1914
• Docket Number: 8129.
• Parties: JABICH v. PEOPLE.

143 P. 1092

58 Colo. 175

JABICH v. PEOPLE.

No. 8129.

Supreme Court of Colorado, En Banc.

November 2, 1914

Error to District Court, Lake County; Charles Cavender, Judge.

Pete Jabich was convicted of murder in the first degree, and he brings error. Reversed and remanded.

James T. Hogan, of Leadville, for plaintiff in error.

Fred Farrar, Atty. Gen., and Clement F. Crowley, Asst. Atty. Gen for the People.

GARRIGUES J.

June 11, 1913, plaintiff in error was convicted of murder of the first degree for killing James Cleary on February 27, 1913. They were miners, and the homicide occurred in the shafthouse of a mine at Leadville, death resulting from two wounds inflicted with a miner's candlestick, one on the breast the other in the back. Prior to his employment at the mine defendant had purchased a candlestick, on which he filed his initial, and before the killing had traded it to one Lute Kellog. The morning of the homicide, the men met, friendly, with other miners in the dry-room, preparatory to going down the shaft. Some conversation occurred between deceased and defendant at the time, in which each claimed a candlestick, and defendant told deceased if he would go with him, he would show him the candlestick in question, upon which would be found his initial. Both went from the dry-room to the shaft to go down the mine. While they were standing at the collar of the shaft waiting for the cage, Lute Kellog came by, was informed of the dispute, and, on being asked to let deceased examine the candlestick, handed it to him, entered the cage, and went down, leaving them at the surface. As soon as deceased obtained possession of the candlestick, he claimed it was his; defendant also claimed it, calling Cleary's attention to the initial. At this time deceased attempted to pass the candlestick to his partner, who had appeared on the scene, whereupon defendant pulled it out of deceased's hand and turned around to go down the shaft, when deceased struck him a blow with his fist back of and below the ear, which knocked him down and against the crossbar of the shaft. From the people's evidence it appears that deceased was holding the candlestick by the sharp end, and defendant pulled it out of his hand and turned facing the shaft; that deceased then struck him in the back of the head with his fist and knocked him over onto the crossbar, and he would have fallen down the shaft had it not been for this bar; that when defendant got up, they grappled, a struggle ensued, and defendant stabbed deceased in the back with the candlestick after he had declined further combat and was retreating. From defendant's evidence it appears that after he had been knocked down against the crossbar, he arose in a dazed condition, when he was struck in the back by some person, which caused him to fall against deceased; that they then clenched and struggled in this position until defendant broke loose and ran away. As to what happened during and immediately after the affray, the evidence is conflicting.

Defendant was from Southeastern Europe, while deceased and his friends were from Northern Europe. Defendant testified that during the encounter the friends of deceased showed hostility towards him in both words and actions, and that he feared they would kill him and throw him down the shaft; that he participated in the struggle after being knocked down, in self-defense, and broke loose and ran away from fear of being killed, without any knowledge that deceased was wounded, and, if he stabbed him with the candlestick, it was unintentional and without his knowledge.

1. The defendant filed an application for a change of venue, which the court overruled. From the evidence in support of this application, it appears that over 90 per cent. of the population of Lake county, subject to jury duty, reside in and immediately around Leadville, and that the newspapers there published articles which were untruthful, inflammable, and highly prejudicial to the defendant who was a Montenegrin and practically alone. The evidence shows there was in the camp at the time, strong prejudice against laborers from Southeastern Europe. Excitement ran so high after the killing that defendant was pursued by a mob which threatened to lynch him, and he was removed by the sheriff to Chaffee county for safe-keeping. The case was tried shortly after the homicide, and from the record we feel that the court, in the exercise of its sound discretion, should have changed the venue in order to insure a fair and impartial trial. Such conditions may not be present at the time of another hearing, if one be had, and we do not wish to be understood to hold that the court should grant a change of venue upon the showing now under consideration. Should the motion be renewed, it would have to be determined upon existing, and not past, conditions.

2. The court refused to give any instructions regarding the law of self-defense, for the reason, as it appears, that such defense admits the killing was intentional, but that it was necessary in order to save the life of defendant or prevent his receiving great bodily harm, and inasmuch as this defense was not interposed, it would be improper to instruct upon the law applicable thereto, there being nothing in the case calling for it, or upon which to predicate such an instruction; that under the doctrine announced in Nilan v People, 27 Colo. 206, 60 P. 485, and Wiley v. People, 51 Colo. 574, 119 P. 620, it would be error to submit to the jury the law of self-defense. This is not the question. Self-defense was not interposed as a defense. The proposition is, Was there any principle involved in the case calling for an appropriate instruction upon the law of self-defense, not as a defense, but upon the theory that defendant was engaged in doing a lawful act? If there is, it was error to refuse to give such an instruction. The theory of the defendant was that he was standing with a miner's candlestick in his hand, in a place where he had a right to be, with no thought or intention of injuring any one; that he was assaulted,...