Kent v. People

Decision Date20 February 1886
Citation8 Colo. 563,9 P. 852
PartiesKENT v. PEOPLE.
CourtColorado Supreme Court

Error to district court, Lake county.

Taylor & Ashton, for plaintiff in error.

T H. Thomas, Atty. Gen., for defendants in error.

BECK C.J.

Plaintiff in error, Charles M. Kent, was indicted at the August term 1882, of the district court of Lake county, for the murder of one Thomas Bennett. The crime was committed on the fourth of July, of the same year, in the city of Leadville, and was witnessed by several persons. Upon the trial, which took place in the month of November following, the prosecuting attorney did not confine the testimony to the facts occurring at the time of the killing, but called witnesses who had knowledge of the facts and circumstances which led to the rencounter resulting in the tragedy mentioned. It appears from the testimony of the witnesses that, for two or three years prior to the month of April preceding, the deceased had as a mistress a woman familiarly known as 'Carrie Bennett.' In said month of April the plaintiff in error married this woman, and afterwards lived with her in Leadville. The woman, however, appears to have continued her dissolute life after marriage as before. The testimony was to the effect that she visited low dance halls frequented only by lewd women and men who desired to associate with them, and that she hired a room in a house of prostitution for the purpose of meeting men away from her home. According to the testimony, all the foregoing facts were known to her husband, including her previous life, and her immoral conduct during the married state. It further appears that they were accustomed to speak of and to each other in the most disrespectful style, using towards each other in public places the vilest epithets.

On the morning of the third day of July, the husband went down town with the expressed intention of going to Gunnison, but, failing in his purpose, he returned to his rooms, and there found the deceased in bed with his wife. He left the room without offering any violence, and it appears that he went down the street and got drunk. Either before or after getting into this condition he purchased a revolver, and while in his intoxicated condition he told different persons that he had caught Bennett in bed with his wife, and was going to kill him, at the same time exhibiting his revolver. To one or more he said: 'Tell Bennett to get a gun, for I have one, and there will be trouble when we meet.' Upon the following day, July 4th, Kent and Bennett were seen by several witnesses engaged in a fist fight on a sidewalk of Harrison avenue. Each one was dealing blows at the other. They were seen to ' clinch,' as the witnesses termed it, and push each other about over the sidewalk for a few minutes, when Bennett sprang from Kent, attempted to run, dodged behind the witness Childs, and attempted to interpose the body of Childs between himself and Kent. The latter took a few steps forward, leveled his revolver, and fired one shot at Bennett, who then crossed the street to the opposite sidewalk, sank down upon it, and died within a few minutes. The proof shows that the shot fired by Kent took effect in a vital portion of Bennett's body, causing death. The shooting and killing were admitted by the accused and his counsel.

The matters of defense relied upon appear to have been provocation, heat of blood, and self-defense. Two witnesses testified for the defense that they went to Bennett, where he lay upon the sidewalk, and saw lying by his side a pair of brass knuckles. Witnesses visited accused in the jail, and testified that they found bruises upon his head, and one upon his cheek; also that one of his ears was bleeding from a small cut; but other witnesses who saw him about the same time at the jail did not notice these wounds. The trial resulted in a verdict of manslaughter, upon which the accused was sentenced to a term of 10 years in the state penitentiary.

The errors assigned which we are asked to review relate to certain instructions given to the jury on the part of the prosecution. Forty instructions were given in all, eleven of them having been given on the part of the accused. (We would observe here that the practice of giving a great number of instructions is not to be commended, since it tends to perplex, rather than to enlighten, the jury.)

Among other points urged against the instructions given for the prosecution are that they were given to the jury in the language of the statute, without explanation or qualification; that some of them were not applicable to the facts of the case on trial, and that many of them were misleading to the jury. As a general proposition, the objection that instructions were given in the language of the statute is not tenable. The statutes of the state comprise the rules of state government. They are framed by the chosen representatives of the people, who are selected by the people themselves for the purpose of framing their laws. The laws so made are for the information and government of the whole people, and it is a well-known maxim that 'ignorance of the law constitutes no excuse for its violation.' It is therefore a reasonable presumption that a jury drawn from the ranks of the people know and understand the statute of the state; and, if this is a correct presumption, there can be no error in giving to them as instructions the statutory definitions of criminal acts, particularly if they are, as in this instance, accompanied by instructions from the court applying the statutes to the matters in issue.

In the present case the first instruction given on the part of the prosecution was the statutory definition of 'murder.' Then followed statutory definitions of 'express malice,' 'manslaughter,' 'justifiable homicide,' what is sufficient to justify homicide, and of 'self-defense.'

The principal ground of error relied upon by counsel for the accused appears to be the giving of the fourth instruction on the part of the people. This instruction is a literal copy of section 36 of the Criminal Code, and is as follows:

'The killing being proved, the burden of proving circumstances of mitigation, or that justify or excuse the homicide, will devolve on the accused, unless the proof on the part of the prosecution sufficiently manifests that the crime committed only amounts to manslaughter, or that the accused was justified or excused in committing the homicide.' Gen. Laws, 267.

Counsel say:

'This instruction was inapplicable to the cause on trial; that it is only applicable when the prosecution is able to prove the fact of killing without showing the circumstances of the homicide; that it instructs the jury that the people, having proved the killing, have made out their case, and it is then for the defendant to establish his defense by a preponderance of evidence; that evidence sufficient to create a reasonable doubt of his guilt would not be sufficient to authorize an acquittal; that the court assumed by this instruction that the defendant committed the deed; that he intended to do it; that the act was committed with malice aforethought, express of implied,--whereas, all these facts should have been found by the jury from the evidence; that the burden of proof never shifts on the defendant at any stage of the proceedings,--it at all times remains on the state; that the fact that Kent and Bennett when first seen were fighting does not entitled the people to the presumption that Kent brought on the fight, or committed a violent assault on Bennett, yet this is just what the instruction tells the jury.'

We are free to say, if this section only of the statute had been given to the jury without other sections, or other instructions plainly defining the crime of murder, and informing the jury of the nature and weight of evidence necessary to justify a conviction, there would be strong reasons for holding that it was misleading. But such is not the fact. This section was given in connection with other sections of the statute, and with copious instructions from the court, by which the offense charged and included in the indictment, with the material elements necessary to constitute the same, were clearly defined and explained. The jury were also repeatedly informed therein that all the facts and circumstances which were necessary to make out the offense charged must be proved to their satisfaction, beyond a reasonable doubt, or a verdict of guilty would be unwarranted.

In consequence of the numerous objections urged to the giving of the fourth instruction, the same being a literal copy of section 36 of the Criminal Code, as above stated, we will give our particular attention to the consideration of this section. It was originally copied into our statutes from the statutes of the state of Illinois, but some of the principles therein contained had their origin far back in the history of the common law. The application of these principles in practice has given rise to much learned discussion, both in this country and in England, and has resulted in differences of opinion, both among the judiciary and commentators on common and statutory law. A leading case upon one side of the controversy in this country is Com. v. York, 9 Metc. 93. This case, however, was decided by a divided court. The interpretation arrived at by the majority of the court, although written and announced by one of the most eminent jurists of America, (the late Chief Justice SHAW,) did not prove wholly satisfactory either to the bench or the bar. The opinion is a lengthy one, but the doctrine announced, as stated in the syllabus, was brief. It was:

'When, on the trial of an indictment for murder, the killing is proved to have been committed, and nothing further is shown, the
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