Leonard v. People, 19521

• Decision Date: 26 February 1962
• Docket Number: No. 19521,19521
• Citation: 149 Colo. 360,369 P.2d 54
• Parties: William K. LEONARD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 54

369 P.2d 54

149 Colo. 360

William K. LEONARD, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error.

No. 19521.

Supreme Court of Colorado, En Banc.

Feb. 26, 1962.

Edward A. Jersin, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Richard A. Zarlengo, Asst. Atty. Gen., for defendant in error.

SUTTON, Justice.

Defendant is here by way of writ of error from a sentence of three to five years for voluntary manslaughter. He assigns as error certain instructions which the trial court gave and certain instructions which it refused to give.

Pertinent parts of the defendant's version of the events leading up to the homicide in question are as follows: Defendant had known Lester Reeves, the victim, for five or six years. Their wives had become friends in Denver and from this the husbands became friends. The Leonards had two teenage children and both families visited back and forth even after the Reeves moved to Colorado Springs where Mr. Reeves became first a fireman and later a gardener for the United States Airforce Academy.

On the evening of October 15, 1959, defendant left his home in Denver, Colorado, and drove to Reeves' home in Colorado Springs, the two having previously arranged to leave on a big game hunting trip the same day. After arriving at Reeves' home they set out in Reeves' pick-up truck for a hunting camp at High Tower Mountain near Rifle, Colorado. Just outside of Colorado Springs they stopped to buy a supply of liquor and beer.

Reeves, the original driver, was drinking throughout the trip and after several hours on the road the defendant took over the driving due to Reeves reckless driving. The trip itself was interspersed with several drunken outbursts of temper on the part of Reeves including swearing, threats to throw defendant from the truck and name calling directed to defendant and a filling station attendant where they stopped for gasoline. The two men, however, finally arrived at the hunting camp at approximately 7:30 a. m. the following day, October 16th, where defendant pitched camp and made the two of them comfortable. After sleeping several hours Reeves awoke about 10 a. m. and again started drinking. In the afternoon he decided to drive to the nearby town of Silt for gasoline. The defendant accompanied him part way, but while on the road observing that Reeves was very drunk, got out of the truck over Reeves' vigorous protests and returned to camp by himself. Reeves continued on to Silt and returned at approximately 6 p. m. At this time Reeves became belligerent and argumentative, in fact so troublesome that defendant decided to forego the hunting venture entirely and asked Reeves to drive him to Silt where he, defendant, could obtain transportation back to Denver. Reeves consented to do so, but while on the road he continued drinking. Defendant's statement to the Assistant District Attorney following his going to the police, and which was introduced in evidence, was that on at least two occasions Reeves threatened him while they were on the road to Silt, his statement being that Reeves '* * * kept getting more intoxicated. He threatened me several times. He stopped the car once and grabbed me and said he would tromp me into the ground, he would kill me, he could do it anytime he felt like it * * *.' Defendant's statement as to the second threat was that it happened about two miles further on. Finally due to his intoxicated condition Reeves asked defendant to take over the wheel, defendant did so and they arrived at Silt at approximately 8:30 p. m.

Only the defendant could describe these events, except for isolated parts, since no one else was present, and no witnesses having seen the killing he alone testified as to how it occurred. His account of the tragedy as related to the assistant district attorney was as follows: Upon arriving at Silt defendant parked the truck in a cafe parking lot.

'Q. * * * Then what happened?

'A. We were both in the car and I started to open the door on my side to get out. Reeves jumped out of the truck on his side and charged around the back of the truck. The next thing I knew I was out of the cab. He had me by the shirt, or jacket up by the throat and starting shaking me back and forth. He said 'I will kill you, you son of a bitch'. I struggled to free myself. He kept pushing and pulling me from the driver's side of the car clear around to the other side, shoving me and pulling me, saying 'I will kill you, you son of a bitch, I will stomp you and I will beat you against the side of the cab until you are dead'. At that point I just don't know what happened. The next thing I know I had gotten the knife out of my jacket and we were struggling and I was trying to back away. That is the last thing I can recall. I don't remember opening the knife or anything. He staggered back from me. He didn't say anything. He got back into the pickup at that time. I went around to the driver's side, opened the door and climbed in and sat down and I looked in my hand and had the knife. I actually don't remember actually stabbing him. Other than that I had the knife and felt that I must have. I remember closing the knife blade and putting it in my pocket.

'Mr. Mason. Q. When he was shaking you did you receive any blows on the had (sic)?

'A. Yes, on the back of the head when he was shaking me against the canopy of the truck body. He was shaking me like a terrier would shake a rat. He shook me back bouncing me off the cab.

'Mr. Mason

'Q. Last night when I talked to you I noticed a slight knot on your head. Was this a result of hitting something?

'A. I don't know, it wasn't there before but things were so hectic that I couldn't tell you.'

Upon realizing what had happened defendant immediately sought help and upon the advice of a waitress in the cafe the defendant drove Reeves to Rifle, Colorado, about seven miles away, in quest of the nearest doctor. In Rifle defendant found two policemen and explained to them that he had stabbed Reeves. Shortly thereafter, in the hospital, Reeves was pronounced dead from loss of blood. Defendant was arrested and subsequently brought to trial for murder.

At the close of the prosecution's case defendant moved for an acquittal and at the conclusion of all the evidence he moved that the question of murder in the first and second degree be taken from the jury on the ground that there was insufficient evidence to support any such verdict. The court denied the motions and instructed the jury on the law of murder in the first and second degree, voluntary and involuntary manslaughter, and excusable and justifiable homicide. The jury returned a verdict of guilty of voluntary manslaughter. The defendant is here by writ of error seeking reversal. In essence he asserts the following:

1. A motion for a directed verdict should have been granted at the conclusion of the people's case; likewise a verdict of not guilty should have been directed as to murder in the first and second degree at the close of all the evidence because there was no evidence of wilfulness, deliberation, premeditation, intent or malice;

2. The giving of instruction on involuntary manslaughter, after instructions on murder and voluntary manslaughter, both of which are felonies and involve the question of intent, confused the jury since involuntary manslaughter is only a misdemeanor and involves killing without intent to do so;

3. The court refused to instruct the jury that since defendant offered evidence of self-defense, the burden of proof thereby devolved upon the prosecution to prove beyond a reasonable doubt the non-existence of self-defense; instead the court instructed that once the killing was proved the burden of proving circumstances of mitigation, justification or excuse devolved upon the accused, unless the prosecution's proof sufficiently manifested that the crime committed amounted only to manslaughter, or that the defendant was justified or excused;

4. The court refused to instruct the jury that in self-defense the defendant alone is the judge of whether he is in danger of death or great bodily harm; instead the court instructed that the defendant's apprehension of imminent danger was to be measured by the standard of the reasonable and prudent man in the same circumstances.

We will address ourselves to these contentions in the above order.

I

First, as to whether a directed verdict should have been granted at the conclusion of people's case.

The record indicates that there was sufficient evidence to go to the jury as to the question of voluntary or involuntary manslaughter. This is so because the evidence is that Reeves was highly intoxicated at the time he was stabbed and defendant was somewhat under the influence himself at the time. The jury could have found, as it did by its verdict, that though considerable provocation existed, defendant used unreasonable force, i.e., a deadly weapon, to resist the assault.

We therefore conclude that in this state of this record a directed verdict was properly denied.

Second, as to whether this record supports the instructions given on first and second degree murder.

C.R.S. '53, 40-2-1 states:

'Murder--defined--how committed.--Murder is the unlawful killing of a human being with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.'

C.R.S. '53, 40-2-2 states:

'Malice--how manifested.--Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.'

And, C.R.S. '53, 40-2-3 relating to 'Implied malice--degrees of murder--when jury to fix penalty' provides in pertinent part:

'Malice shall be implied when no considerable provocation appears, or when all circumstance of the killing show an abandoned and malignant heart.'

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