Moore v. People

• Citation: 57 P. 857,26 Colo. 213
• Parties: MOORE v. PEOPLE.
• Decision Date: 17 April 1899
• Court: Colorado Supreme Court

57 P. 857

26 Colo. 213

MOORE v. PEOPLE.

Supreme Court of Colorado

April 17, 1899

Error to district court, Larimer county.

Joseph Addison Moore was convicted of voluntary manslaughter, and brings error. Affirmed.

Robinson & Love, for plaintiff in error.

Calvin E. Reed, Asst. Atty. Gen., for the People.

GODDARD J.

The plaintiff in error was tried on an information charging him with the murder of Norman Barker, was found guilty of voluntary manslaughter, and sentenced to confinement in the penitentiary for the term of six years. To reverse this sentence, he brings the case here on error.

The homicide occurred at a saloon in Walden, where the deceased was employed as a barkeeper. On the night before the shooting, plaintiff in error was present in the saloon at the time an altercation occurred between Barker and a man by the name of Baker. He made some remark, and deceased resented his interference, whereupon they had some words. On the following day, about half-past 9 o'clock a. m., plaintiff in error went to the saloon for the purpose, as he testified, of getting his overcoat and gloves, and to look for a man by the name of Webb, for whom he had engaged to work, and with whom he was going to leave town that morning. After taking a drink with Dr. Elgin and some others, he and the doctor sat down near the stove, when Barker, who had been on duty all night and was somewhat intoxicated, came over and sat near them. Dr. Elgin, who was called for the people, gives the following version as to what then occurred: 'Norm [Barker] turned around to Ad [plaintiff in error], and said, 'What was the matter with you last night?' in a pleasant sort of way. * * * Moore dropped his chair, looked at Norm, and said 'I don't know. Do you?' * * * After Ad said this he walked towards the back door, into the passage between the two rooms, and as he turned around he said to Barker 'Come out, you son of a bitch, and I'll show you what is the matter.' * * * Moore had passed on out of the passageway, and Barker followed him.' Moore's version is as follows: 'As we were sitting there, Barker came from behind the bar, and sat on a chair on the other side of Elgin. He had no sooner sat down on the chair than he leaned across Elgin, and says to me, 'G_____ d_____ you! what was you looking for in here last night?' He said it in a very insulting tone. * * * I said nothing to him, got up, and left the house. He got up at the same time, and followed me out. He was cursing me as he followed me. I told him to go back. He came to the door, and was still cursing me, calling me a G_____ d_____ _____, and other names of that kind.' As to what occurred afterwards there is no controversy. In the rear of the building there is a yard extending back 50 or 60 feet, inclosed by a close board fence, about 6 feet high. On the inside was a pile of lumber, about 18 inches high. At the corner of the saloon there was a gateway leading out of the yard. Moore was standing at this gateway, and Barker in the back door, each with his gun drawn, when Dawson, the proprietor of the saloon, came along, and told them to put up their guns and 'stop this.' Moore put his gun back. Dawson passed on. Barker then stepped outside the door, threw his gun down on Moore, who jerked his gun from his pocket, when he claims it went off accidentally. He then jumped around the corner of the fence, going some 4 or 5 feet west, when Barker stepped upon the pile of lumber inside, and, leaning over the fence, pointed his gun at Moore, who was then on the outside, when Moore fired the shot that killed him. It also appears from the evidence that Barker had, several times, during the morning, threatened to kill Moore if he came there again; and an examination of his gun shows that it was loaded with two rim-fire cartridges and three center-fire cartridges. The rim-fire cartridges had been snapped.

The plaintiff in error assigns and argues five propositions upon which he relies for reversal: First, the admission of improper evidence; second, the exclusion of proper evidence; third, that the verdict is against the evidence; fourth, misconduct of bailiffs; fifth, misconduct of the jury in the jury room.

1. Upon the trial the people called as a witness J. H. McKee, who testified that on the night previous to the homicide, and after the trouble occurred in the saloon, he overheard Moore talking with a man named Baker. 'By Mr. Patton: Q. You may state what you heard. (Defendant objects.) Mr. Patton: We expect this witness will state what he heard Moore say. We don't know positively to whom it applies. This is for the jury to say. The Court: Does he know who spoke? Witness: Moore spoke. Am acquainted with Moore's voice, and also with Baker's. The voice I heard, I recognized as Moore's. The Court: In view of the altercation in the saloon that evening, and this conversation following immediately afterwards, and in view of what took place subsequently, I think I will admit it. (Exception by the defendant.) I heard Moore say he 'would get the son of a bitch yet.'' It is insisted that the court erred in admitting this testimony, because, standing alone, and without explanation, it was not a threat to take the life of Barker, and its only tendency was to show that defendant was a turbulent character, who entertained a disregard for human life, the only effect of which could be to prejudice the jury against him. We do not think this objection is well taken: 'Threats may be admissible, although they were not directed towards any particular person, * * * and they may not have been to commit any specific act or injury, if they tend to show a malicious condition of defendant's mind.' 9 Am. & Eng. Enc. Law, p. 686, subd. d; State v. Hymer, 15 Nev. 49; Hopkins v. Com., 50 Pa. St. 9. What significance should be given to the remark, and whether it had reference to deceased, were questions properly left to the jury to determine, in connection with all the evidence in the case. Anderson v. State, 79 Ala. 5; Schoolcraft v. People, 117 Ill. 271, 7 N.E. 649.

2. In support of the second proposition, it is claimed that the court erred in excluding the testimony of Mr. Webb as to the fact that he had employed plaintiff in error to work for him, and that they were going to leave on the morning of the homicide, and which was offered as corroborative of the testimony of Moore that he went to the saloon that morning for the purpose of meeting Webb. The action of the court in excluding this testimony is sought to be justified upon the ground that it was merely cumulative upon an undisputed fact that was not material to the case. While it is true that the testimony of the plaintiff in error as to his motive in going to the saloon at that time was not contradicted, and the testimony offered was cumulative upon that point, this constitutes no sufficient reason for excluding it. We know of no rule that prohibits a person on trial for a criminal offense from introducing cumulative testimony upon any fact material to the...