Keady v. People

• Decision Date: 07 December 1903
• Citation: 74 P. 892,32 Colo. 57
• Parties: KEADY v. PEOPLE.
• Court: Colorado Supreme Court

74 P. 892

32 Colo. 57

KEADY v. PEOPLE.

Supreme Court of Colorado

December 7, 1903

Error to District Court, Lake County; Frank W. Owers, Judge.

Thomas Keady was convicted of assault with intent to murder, and brings error. Affirmed.

James Glynn, for plaintiff in error.

N. C Miller, Atty. Gen., and J. B. Melville, for the People.

STEELE J.

The defendant, having been convicted of an assault with intent to murder, brings the case here for review.

Upon the impaneling of the jury, and after the prosecution and defendant had passed the jurors for cause, the court of his own motion examined at length the juror Campion as to his citizenship, and at the conclusion of the examination excused Campion from attendance upon the court. This is alleged to be an error, but it does not appear that by reason of the action of the court the defendant has not had a fair and impartial trial by a competent jury, that the district attorney exhausted all his challenges, nor that by the action of the court the panel was depleted. The defendant therefore has not been prejudiced by the action of the court.

The other errors assigned relate to the admission of testimony and to the giving and refusing of instructions. To understand these objections, it is necessary to know the circumstances of the alleged assault as presented by the people and as presented by the defendant.

Robert Telfer, a policeman of the city of Leadville, was shot and severely wounded about 8 o'clock in the morning of the 8th of November, 1901, upon opening the door of a hack then standing upon one of the streets of Leadville, and in which the defendant was riding. After stating that he went up to the hack for the purpose of ascertaining whether the defendant was carrying a concealed weapon, Telfer testified as follows: 'I opened the door of the hack, and at the time I did I was going to excuse myself. I got out about 'Ex--'; that is about all. Mr. Keady pulled the gun out, had it right up against my breast, probably two inches from my breast. Q. Where did he take it from, if any place? A. He had it on his lap in his overcoat, over the gun. Q. Go on. A. As soon as I saw the gun, I made for it, and caught the gun by the barrel, with my finger and thumb against the chamber, just in that shape (showing), and pushed the gun away to the left, downwards at the same time; and he pulled the trigger was pulled. Q. By you? A. No, sir, by Mr. Keady and the gun went off and struck the iron plate on the hack and entered my leg.'

The defendant's testimony upon direct examination was as follows: 'Q. You may state your name to the jury. A. Tom Keady. Q. Where were you born? A. Pittsburg, Pennsylvania. Q. You may state to the jury if, on the 8th day of November, I believe, you came to Leadville? A. Yes, sir. Q. Just go on and state to the jury what happened that morning, from the time you got off the train. A. Until the time I was arrested? Q. Yes. A. I was the last passenger getting out of the coach. I stepped out of the coach. There was a cab standing there, and I stepped to the cab door. I said to the cabman, 'Drive me to 208 West Second street.' So when I got there, my overcoat I had laid on the front seat, and that revolver I had laid it under the overcoat, in between. So in going up, I takes the overcoat and gun, walks in, and touches the button. I just touched it. I realized I wanted a drink, to get a little vial of some kind. I turned round and told the cab driver to drive me up town to some first-class saloon, as I wanted to get a drink. Went and stopped in front of the Pioneer. So I had ordered a drink, this Mr. _____ he comes, and says, 'God damn you, get out of here!' and grabbed me. I reached for that gun, and throwed it down on that, and he grabs it, and I grabs, and I shot that finger nail off (showing). You can see the finger. It is all healed. Then I was arrested. Then he had that gun. They hit me over the head and arms. I throwed up my arms. They took me off to jail. Q. I will ask you if you observed Mr. Telfer on the hack? A. I asked the driver--I didn't know whether--who he was. I told him I didn't want him. He opened the door, and said, 'God damn you, get out of here!' He just caught on here and pulled me. Q. Where did he catch hold? A. On this arm (showing). Q. Where were you sitting with that arm--next to the door? A. Next to the door. He had opened it. Q. Did you know Mr. Telfer? A. No, sir; I never saw him before. Q. At the time you pulled that gun off, did you have any intention of shooting him? A. No, only to protect myself, and I didn't know who the man was, ordering me in that way he did. He says, 'God damn you, get out of here!' Q. What caused the gun to go off? A. I reached and picked it up, of course cocked, and throwed it down that way. He grabs and I grabs. Q. Did you shoot that gun intentionally, or was it from the fact of the scuffle? A. I don't know whether he pulled it off or I pulled it off in the scuffle for the gun, or which one it was done it. Q. You had hold of it in a way that would shoot? A. Yes, sir. Q. Was it the force of his blow knocking it down? A. He just knocked down. My arms were all black and blue and everything afterwards. I didn't know who the man was. Q. What else did he say to you at that time, if anything? A. He says, 'God damn you,' and 'damned cur,' and 'you dog,' and he had a gun. I didn't know whether I was going to be murdered, or what. He said, 'You dog, get out of here.' Called me every name he could think of. I didn't know who the man was.'

William Campbell, a police officer of the city of Leadville, was permitted to testify, over the objection of the defendant, to a complaint made by one Irene Allen to the police department concerning the defendant. He said: 'It was on the night of the 7th of November. I think it was about half-past eleven, or quarter past eleven, along there, Miss Allen came to me, and showed me a telegram from Mr. Keady saying, 'I will be in on the six o'clock train,' or something to that effect, 'in the morning'; and she was crying at the time, and she told me that she was afraid of this man, and she was afraid that this man was coming here to kill her. 'Now,' she says, 'I want you to watch the train, and watch State street. He will come down State street when he comes here; and,' she says, 'if he runs across me, he is going to kill me.' * * * She said, 'You will have to be careful, because he carries a gun, a 45-caliber revolver.' She say, 'You will have to look out for him, because he is a bad man.' I didn't say anything. Went and told officer Telfer of it. I told him we would watch the trains in the morning; see if this man had a gun; if he had, take it away.' It is urged that this was hearsay, and that it contained statements prejudicial to the defendant. In the case of People v. Wilson, 141 N.Y. 185, 36 N.E. 230, evidence of this character was held to be competent for the purpose of showing upon what facts the officer justified the making of an arrest upon suspicion that the persons arrested were guilty of a felony then lately committed, and we think this evidence was competent to show the authority of Telfer under section 1364, 3 Mills' Ann. St., to search the defendant for concealed weapons.

The information does not charge that Robert Telfer was a police officer, or engaged in performing the duties of a police officer, at the time of the shooting. It was not necessary to allege these facts in the information, and proof of them upon the trial was entirely proper.

Instructions Nos. 6, 8, and 9 given by the court are as follows Instruction 6: 'The court instructs the jury that, where the act is deliberate, and likely to be dangerous, or is wanton, willful, or unlawful, malice will be presumed.' Instruction 8: 'A man shall be presumed to intend that which he voluntarily does, and where the act is necessarily destructive of life it would be absurd to say that the actor did not intent to produce death. So if a person deliberately uses a deadly weapon in a manner likely to produce harm, upon every principle by which we may judge...