King v. People

• Decision Date: 06 January 1913
• Parties: KING v. PEOPLE.
• Court: Colorado Supreme Court

129 P. 235

54 Colo. 122

KING v. PEOPLE.

Supreme Court of Colorado, En Banc.

January 6, 1913

Error to District Court, Elbert County; J. W. Sheafor, Judge.

George King was convicted of murder, and brings error. Reversed and remanded.

H. A. Hicks and Charles Roach, both of Denver, for plaintiff in error.

Benjamin Griffith, Atty. Gen., and Charles O'Connor, First Asst Atty. Gen., for the People.

WHITE J.

George King was tried for, and convicted of, the murder of Felix Jackson, commonly known as Pete Jackson, and upon the verdict of the jury sentenced to death. He brings the case here for review.

In instructing the jury as to the meaning of the word 'deliberately,' the court stated inter alia that it does not mean 'brooded over or reflected upon for a week or a day, or an hour, but it means an intent to kill executed by the defendant in a cool state of the blood,' etc., and plaintiff in error claims that by the use of the adjective 'the,' instead of 'a,' before the word 'defendant,' the court thereby expressed an opinion that the 'defendant on trial had in a cool state of the blood committed the crime charged.' We are not impressed with the criticism or the inference sought to be drawn from the language used. The clear meaning of the instruction is that deliberation, as an element of the crime, did not exist, unless the jury found that the defendant, in the absence of overpowering passion, distinctly formed in his mind the intent to kill the deceased, and thereafter, however short the time, so executed the act of killing.

Instruction No. 8 told the jury that, in order to warrant them in finding a verdict of murder in the first degree, 'you must find, and so indicate in your verdict, that the killing was with deliberation and premeditation,' and it is claimed that because they were not also told therein that such finding must be upon the evidence, and beyond all reasonable doubt, it constitutes reversible error. The burden of proof to establish the guilt of defendant from the evidence beyond a reasonable doubt was placed upon the people by instruction No. 5, which also declared that the defendant must be presumed to be innocent of the crime charged against him until proven guilty by the evidence beyond a reasonable doubt. Moreover, the necessity of finding the truth of the charge from the evidence beyond all reasonable doubt was covered by several other instructions, and it is clear that no possible misconception in that respect could have entered the minds of the jurymen. It is not a case where there was given an incorrect and a correct instruction covering the same matter, but rather one wherein that which is said to be an omission from one instruction was supplemented and cured by the language of another forming a portion of the same charge.

Instruction No. 9 told the jury that if they believed and found from the evidence beyond a reasonable doubt that one 'John Fields * * * willfully, unlawfully, feloniously, deliberately, premeditatedly, and with malice aforethought' killed and murdered the deceased, and 'if you should further find and believe from the evidence beyond a reasonable doubt that the said defendant, George King, was present at the time and place aforesaid, and did then and there unlawfully, willfully, feloniously, deliberately, premeditatedly, and of his malice aforethought, abet or assist' in such killing, 'then you are instructed that the defendant, George King, is also guilty of murder of the first degree, and you should so find and state in your verdict.' It is claimed that the instruction constitutes reversible error, because the question of the degree of murder is thereby taken from the jury. We do not believe that the instruction has the effect claimed. The statute declares murder to be the unlawful killing of a human being with malice aforethought, either express or implied, by any of the various means by which death may be occasioned. Section 1622, R. S. 1908. And section 1624, R. S. 1908, declares, inter alia, that murder which shall be perpetrated 'by any kind of willful, deliberate and premeditated killing,' or 'which is committed in the perpetration or attempt to perpetrate any * * * robbery * * * shall be deemed murder of the first degree.' By instruction No. 3 the two degrees of murder, as defined in the statute, were fully explained. So the substantial effect of instruction No. 9 was to say to the jury that if they found from the evidence beyond a reasonable doubt that John Fields was guilty of murder in the first degree, and that the defendant was an accessory thereto during the fact, deliberately and premeditatedly assisting therein, he was likewise guilty of murder in the first degree, and they should so find by their verdict.

A like objection and criticism is made and urged against instruction No. 10. It told the jury that if they found and believed from the evidence beyond a reasonable doubt that defendant and Fields at a time and place named did willfully and feloniously engage in an attempt to take from the person of Jackson, by violence and force, or by violence and intimidation, his money, goods, or other valuable things, and while so engaged Fields did unlawfully and feloniously shoot and kill Jackson, and at the time the shot was fired by Fields and the mortal wound inflicted upon Jackson the defendant, George King, was present, unlawfully and feloniously aiding, abetting, or assisting Fields in the attempt to take from Jackson his money, et cetera, then the defendant, King, would be guilty of murder in the first degree, and the jury should so find and state in their verdict.

While it is true that when the crime of murder is established, the law declares it to be murder of the second, in the absence of circumstances showing it to have been murder of the first, degree, nevertheless when the facts and circumstances in evidence are detailed in an instruction, and embody only the elements of murder in the first degree as declared by the statute, it is not improper to state in an instruction that, if the jury finds the existence of such facts beyond a reasonable doubt, the defendant would be guilty of murder in the first degree, and the jury should so find. The statute makes a homicide committed in the perpetration or attempted perpetration of robbery murder in the first degree, and the substantial effect of the instruction was to impose the duty upon the jury to ascertain whether the robbery had been committed or attempted, and, if so, whether the homicide had been committed in the perpetration thereof. If both were found in the affirmative, beyond a reasonable doubt, the statute fixes the homicide as murder of the first degree, and under such circumstances that degree is the only grade of the offense of murder the evidence will support.

The rule, as stated in 21 Cyc. 1067, is that, 'where the absence of an actual preconceived design to take life does not reduce the grade of the offense where the homicide was committed in the perpetration of certain other felonies, such as arson, burglary, rape, or robbery, the court need not, in such cases, instruct the jury as to minor included offenses.' Under such circumstances, there is but one grade of the offense; that is, murder in the first degree.

By instruction No. 12, the jury were told, substantially, that if they found beyond a reasonable doubt that John Fields willfully, unlawfully, feloniously, and with malice aforethought killed the deceased, and they did not find that such killing was with deliberation and premeditation, and they further found beyond a reasonable doubt that the defendant, King, so aided and assisted Fields in such killing, 'then you are instructed that the defendant, George King, is guilty of murder of the second degree, and you should so find and state in your verdict; provided you further find from the evidence that at the time of the killing of the said Felix Jackson, commonly known as Pete Jackson, the said defendant and the said John Fields were not engaged in an attempt to rob the said Felix Jackson, commonly known as Pete Jackson, as defined in instruction No. 10.' We think the instruction vicious. Its effect was to tell the jury that, although the killing of deceased may have been without any deliberation or premeditation whatever, it was, nevertheless, murder in the first degree, unless they further found affirmatively that the homicide was not committed in the execution or attempted execution of robbery. Such is not the law. If the jury believed and found that the killing was without deliberation and premeditation, but attended with all the other elements of murder, the defendant was entitled to a verdict of murder in the second degree, though the jury entertained a reasonable doubt, and made no finding as to whether the homicide was or was not perpetrated in an attempt to rob. The principle applicable here in considered and applied in Pribble v. People, 49 Colo. 210, 112 P. 220.

If the case had been submitted solely upon the theory that the murder was committed in the perpetration or attempted perpetration of robbery, or if the evidence had been embodied in a bill of exceptions and made a part of the record, and we could clearly discover therefrom that the homicide had been so committed, it might be held that the instruction was without prejudice. Wickham v. People, 41 Colo. 345, 93 P 478. Under the first instance, we might presume that all the issues made were presented by the instructions, and, inasmuch as homicide committed in the perpetration or attempted perpetration of robbery is murder of the first degree, the defendant had suffered no injury; and under the second we might know that the defendant was in no wise prejudiced. But this record presents no such facts and...