Mackey v. People

• Decision Date: 01 February 1873
• Citation: 2 Colo. 13
• Parties: MACKEY v. THE PEOPLE.
• Court: Colorado Supreme Court

2 Colo. 13

MACKEY v. THE PEOPLE.

Supreme Court of Colorado

February, 1873

The giving of an instruction embodying a correct legal principle does not cure the error committed in giving another containing a contrary statement upon the same proposition.

Error to District Court, Arapahoe County.

AT the November term, A. D. 1870, Richard Mackey was indicted for the murder of Charles Laughrey, in the Gilpin county district court. The facts respecting the summoning of the grand jury are sufficiently stated in the opinion. The cause was removed to Arapahoe county by change of venue, where a trial was had and the jury found the prisoner guilty of involuntary manslaughter. At the trial it appeared that the homicide occurred in a saloon kept by one McLaughlin, in the town of Nevada, on the 13th November, 1870; that the prisoner was drunk and that he came into the saloon two or three times shortly before the shooting and threatened violence to some that were present, and brandished his pistol in a threatening manner. The deceased was sitting by the side of a table, and the prisoner having flourished his pistol above his head was in the act of bringing it down, when it was discharged either purposely or by coming in contact with the table, the ball taking effect upon deceased and causing his death. Several witnesses for the people including the physician who examined the wound testified that the ball entered the body of deceased six or eight inches above the line of contact with the table and ranged downward and toward the left; these witnesses were of the opinion that the pistol was discharged by the prisoner before it came in contact with the table other witnesses for the defendant thought that the pistol struck the table before it was discharged; the prisoner proved that he was on good terms with deceased and had no quarrel with him.

The part of the charge respecting reasonable doubt upon which error was assigned, was as follows:

'The court instructs the jury that if they have a reasonable well-founded doubt of the guilt of the defendant, that doubt should operate in favor of the defendant; such doubt, if any there be, must be a reasonable, well-founded doubt, grounded upon the irreconcilability of the evidence, not such a doubt as comes from the imagination.' The charge was quite voluminous, and the phrase 'reasonable doubt,' was often used. In another part the language of the charge was as follows:

'The court instructs the jury that reasonable doubt is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition, that they cannot say that they feel an abiding conviction to moral certainty of the truth of the charge. The proof is on the prosecution. All presumptions of the law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent until he is proven guilty, and if upon such proof there is reasonable doubt remaining, the accused is entitled to an acquittal, for it is not sufficient to establish a probability.'

The charge respecting malice, to which objection was also made, was not discussed in the opinion, and therefore it is not inserted here.

Mr. H. P. H. BROMWELL and Mr. H. M. TELLER, for plaintiff in error.

Mr. M. A. ROGERS, District Attorney, for defendant in error.

HALLETT C. J.

The indictment was found at the November term, 1870, of the Gilpin district court, by a grand jury summoned by the sheriff under a special venire, issued after the regular panel of grand jurors for that term had been discharged. A challenge to the array was interposed by the prisoner before the jury was sworn, by which the power of the court to proceed in that manner was denied, and this presents the first question for consideration. It is claimed that the statute regulating the manner of selecting jurors (R. S. 387) points out the only method by which jurors can be lawfully selected, and that, after the regular panel of jurors had been discharged for the term, no jury could be selected until the next term of court. That statute provides that the county commissioners shall select jurors, prior to each term of court, to serve at such term, and that the jurors, so selected, shall be summoned upon a venire issued for that purpose to the sheriff of the county.

By the 10th section of the act, if the county commissioners shall fail to select jurors to attend at any term of court, or if any officer charged with any duty respecting the selecting or summoning of jurors shall fail to perform the same, and thereby it shall happen that jurors shall not be summoned, or if jurors, when selected and summoned, shall fail to appear, the court may issue a special venire to the sheriff of the county to constitute a jury; and by the last clause of the section, if jurors summoned to attend at any term of court shall, for any cause, be discharged, talesmen may be summoned to supply their places. The argument of counsel, that the selection of jurors by the board of commissioners was designed to exclude the common-law mode of selection in all cases, is not borne out by the statute. We cannot presume that the legislature did not intend that a second panel should be summoned at any term of court, when a necessity for it should arise during the term, for there is nothing in the statute evincing common-law mode of selection anxiety of the legislative assembly not to impede or delay the course of justice is expressed in the 10th section, which affirms the common-law power of the court to convene a jury when none shall be selected in the manner prescribed by the statute.

The exigency which requires a second grand jury to be convened at a term of court is often quite as urgent as that upon which the first was obtained, and it was as fully recognized by the common law. The circumstance that provision has been made for selecting the first panel of jurors in a manner different from that adopted by the common law is not significant as to the second panel, which may or may not be required, and with which it is in no way connected. The authority to summon the second panel, which is given by the common law, may stand unimpaired by the regulation as to the first panel. Stone v. The People, 2 Scam. 326.

As to the number of grand jurors, the statute provides that it shall not be less than sixteen, nor more than twenty-three. While the order of the court...