Jones v. People

• Decision Date: 01 December 1882
• Citation: 6 Colo. 452
• Parties: JONES v. THE PEOPLE.
• Court: Colorado Supreme Court

6 Colo. 452

JONES v. THE PEOPLE.

Supreme Court of Colorado

December, 1882

Error to District Court of Clear Creek County.

THE facts are sufficiently stated in the opinion.

Messrs BELA M. HUGHES and G. G. WHITE and Messrs. MORRISON and FILLIUS, for plaintiff in error.

CHARLES H. TOLL, Attorney General, for defendants in error.

STONE J.

Plaintiff in error was indicted and tried for murder.

The verdict for guilty being without the clause involving the death penalty, the sentence imposed was imprisonment for life. The entire bill of exceptions is printed, setting out all the testimony and proceedings in the case, and we have carefully read and examined the whole two hundred pages of printed record with a view of doing justice as well to the prisoner as to his counsel, who have exhibited commendable pains in presenting the case for review in this court.

The errors assigned are stated as follows:

1. The court erred in sustaining challenge to James Powell as juror.

2. The court erred in overruling challenge to Hans Iverson as juror.

3. The court erred in excluding the offer to prove character of deceased.

4. The court erred in refusing defendant's instructions numbered 7, 8 and 11, upon the question of degree.

5. The court erred in refusing defendant's instructions numbered 9 and 10, upon the question of intent.

6. The court erred in giving its instructions, numbered 6 and 7, upon the question of intent.

7. The court erred in giving its instruction numbered 14.

8. The court erred in giving its instruction numbered 15.

9. The court erred in its entire charge taken as a whole.

10. The court erred in refusing to grant a new trial.

11. The evidence does not justify any verdict higher than manslaughter.

12. The misconduct of the jury in the use of intoxicating liquors vitiated the trial and verdict.

13. The misconduct of the jury in visiting the theater vitiated the trial and verdict.

14. The court in its charge confounds the distinctions between manslaughter and murder with the distinctions relative to punishment which the jury were at liberty to make.

1. The challenge by the prosecuting attorney of the juror Powell was on the ground of his expressed conscientious scruples against the infliction of the death penalty. Upon his voir dire examination, the juror stated distinctly his unwillingness and inability to join in a verdict that would subject the convicted to the death penalty. Upon cross-examination he was asked this question: 'Did you say that if the evidence in this case, and the law as it should be given to you by the court, should warrant you in rendering a verdict which would result in the death of the prisoner, that your conscientious scruples are such that you could not render such a verdict?' To which question the juror answered: 'I would not render such a verdict.' This was, in effect, declaring that he would not assent to a verdict in accordance with the law of the land and his oath as a juror, where the law entailed a penalty which his individual conscience did not approve. It is needless to say that the law could not be fully administered with such a juror sitting in the case, and there was no error in sustaining the challenge.

2. The juror Hans Iverson stated that he had heard something about the case and had 'partially' formed an opinion about it; that he did not know but what he had some bias in the case. Upon further examination, he stated that he knew of no reason why he could not render a fair and impartial verdict according to the law and evidence submitted, without any prejudice or bias, regardless of what he had previously heard. In answer to the question by counsel for defendant, 'Would the opinion you have formed as to the guilt or innocence of the prisoner require evidence to remove it?' the juror answered, 'Yes, sir;' whereupon he was challenged for cause by defendant. In answer to further questions by the court, the juror stated that he had no settled opinion; that he did not hear about the case at Silver Plume, where the homicide occurred, but at Idaho Springs; that the persons he got his information from learned it from reports; that he did not inquire into the matter, and that he could lay aside the opinion he might have formed about the case, and as his duty to his oath, could try the case the same as if he had never heard of it. The question whether a juror has such an opinion as that it would require evidence to remove it, is one quite commonly propounded by attorneys, but is no certain or proper test of such joror's qualification. I suppose that no rational person ever has an opinion upon any subject which is changed or removed except by evidence of some kind. I do not refer to sworn testimony alone, heard upon a trial, for the question is not thus limited, and is misleading to the ordinary juror thus questioned.

The time has gone by, if it ever existed, when a juror is held to be disqualified merely because he has heard or read something about the case he is called to try and is intelligent enough to have formed an opinion therefrom. The proper test in such case is, can and will the juror render a verdict according to the evidence heard upon the trial, impartially and fairly, under his oath so to do, regardless of his preconceived opinions; and if the juror declares upon his voir dire oath that he can and will so decide, there is no cause for sustaining a challenge on the ground of such previously formed opinion.

The juror in question had no fixed opinion; he had heard mere rumors at a distance from the place where the homicide occurred; he did not inquire into the matter, and he declared, as well he might, his willingness and ability to decide freely and fairly, uninfluenced by what he had previously heard, read or believed, respecting the guilt or innocence of the prisoner.

We have a statute upon this subject under which a juror is not disqualified, by reason of a previously formed or expressed opinion, if the court shall be satisfied upon examination that he will render an impartial verdict (General Laws, 872); and for a full discussion of this whole question by Chief Justice Hallett, see the case of Solander v. The People, 2 Col. 48.

There was, therefore, no error in overruling the challenge.

3. The third assignment questions the ruling of the court in refusing the offer of the defense to show that the deceased was of a quarrelsome and violent disposition when under the influence of liquor, in which condition he was shown to be at the time of the killing. We think the offer was properly refused. No foundation had been laid for the introduction of such testimony. The testimony shows that up to the day of the killing there had been no quarrel between the prisoner and the deceased; their relations and intercourse had always been friendly; they had roomed together, and there was no evidence that the prisoner, at the time of the killing, had anything to fear from the known disposition or character of the deceased, or from any previous threats, conduct or circumstance whatever. A few minutes previous to the killing the deceased was looking for a pair of boots in the house, and not finding them, stepped to the door and asked the prisoner about them; the search was renewed; the prisoner, who was unloading sacks of ore from the backs of donkeys at the door, entered the house to help look for the boots; the deceased found them just after the prisoner entered, and then said to prisoner, 'I take back what I said about the boots.' Prisoner resumed his work outside, and deceased, who was then packing a valise just inside the open door, made some remarks about the boots in talking with a little child beside him; prisoner overhearing the remarks, said, 'What are you saying about the boots?' The deceased replied, 'I am talking to Edith' (the child). The prisoner then said, 'If you want anything off of me just come out here.' The deceased thereupon rose up and walked rapidly out of the door towards the prisoner, who was then about a dozen feet distant, when, without another word uttered by either, the prisoner gave deceased a push or thrust with his hand, in which he held an open jack-knife which he was using in cutting the pack ropes, and the deceased fell backwards into the doorway and died without speaking a word. The prisoner in his own testimony to the jury states that the deceased first struck him on the neck with his fist; a statement to the same effect is made by the witness Clair on behalf of the defendant, but the testimony of this witness is, we think, fairly impeached by a number of witnesses introduced for that purpose.

Upon these facts it will be seen that the testimony as to the character of the deceased was clearly inadmissible at the time it was offered, which was previous to the testimony of Clair and the defendant. Such testimony, when admitted, is for the purpose of showing a ground for belief in the mind of the slayer that an attack made upon him was dangerous and felonious. Hence, as a proper ground for the introduction of such testimony, an attack must first be shown, the nature of which, together with the known violent and dangerous character of the attacking party, is sufficient ground for belief in the mind of the defendant at the time that the attack is felonious. Davidson v. The People, 4 Col. 145.

Mr Wharton lays it down, that if the offer of such testimony is general, and not connected with the status of the defendant at the time, the testimony must necessarily be excluded, for B.'s savage disposition is no reason for A.'s killing him. 'When, however, it is clearly shown that the defendant was under a reasonable fear of his life from the deceased, then the deceased's temper, in connection with previous...