Mow v. People

• Decision Date: 01 June 1903
• Parties: MOW et al. v. PEOPLE.
• Court: Colorado Supreme Court

72 P. 1069

31 Colo. 351

MOW et al. v. PEOPLE.

Supreme Court of Colorado

June 1, 1903

Error to District Court, Fremont County.

George E. Mow and Street T. McCoy were convicted of murder, and bring error. Affirmed.

Joseph H. Maupin and Clyde Dawson, for plaintiffs in error.

Nathan C. Miller, Atty. Gen., and Patterson Richardson & Hawkins, for the People.

GABBERT J.

Plaintiffs in error were charged with the murder of Charles J. Withers. The trial resulted in a conviction for murder in the second degree. The deceased came to his death from bullet wounds claimed on behalf of the people to have been inflicted by one or both of the accused. The theory of the defense was that the accused, Mow, was attacked by deceased without any provocation whatever, and that in defending himself he took the life of deceased. On the part of the prosecution the theory was that the accused entered the storeroom where the homicide occurred, and at once opened fire upon the deceased.

The first point we shall consider is the claim of counsel on behalf of the accused that the testimony does not support the verdict as against either, and especially as against McCoy. There were but three eyewitnesses to the tragedy--the accused, and a young man by the name of Hendricks, who was a clerk in the store. His testimony is to the effect that he was near the stove, in the rear of the store, when the accused entered a little after 8 o'clock in the evening that deceased was near by, leaning against some shelving and, as the accused walked towards them, he moved a short distance, which placed him in the rear of the stove, facing towards the front part of the store; that McCoy asked him (the witness) if he was going to the dance; that he does not remember Mow said anything more than 'Good evening,' and that he (the witness) told McCoy he did not think he would go. No reply was made to this, and, as he started to sit down, a shot was fired. He was unable to tell who fired this shot. He immediately retreated behind a counter, at which time, as near as he could remember, Withers was moving towards the corner of the room. This corner was partitioned off, and was occupied by the witness and deceased as a bedroom. The last shot fired struck the witness, but, as it had first passed through a counter, did not cause him any serious injury. Mow and McCoy testified that they were on their way to a dance, and stopped at the store for Mow to purchase a light pair of shoes. There is testimony corroborating this statement. Their evidence as to what was said when they first entered the storeroom was practically the same as detailed by the witness Hendricks. They both locate Withers in the room at a point back of the stove facing the front of the store, and claim that, after having spoken to Hendricks, they heard the click of a gun, and, looking around, discovered that Withers had drawn a revolver, which he pointed and immediately fired at Mow; that the latter then pulled his gun and shot at Withers. Mow claims that this first shot blinded him, because it was fired in such close proximity to his head that it burned his eyes and face. He says that Withers commenced to retreat, and he followed him, firing as rapidly as he could; that the first shot he fired must have been in the direction of some pick handles in a rack; that when his gun snapped he knew there were no longer any loads in it, and he then ran to the front of the store, where he met McCoy. His weapon was a Colt's 45 caliber six-shooter. McCoy claims that when the first shot was fired he immediately retreated to the front of the store, and was there when the firing ceased; that he was armed with a smaller caliber revolver than the others, but that he did not fire a single shot. That McCoy made a movement towards the front of the store immediately after the first shot was fired is to some extent corroborated by the witness Hendricks, who indicated that he moved in that direction, but does not pretend to state where he did go. It will thus be seen at the outset that the vital question in the case was, who fired the first shot? If, as contended on behalf of the accused, they were attacked by the deceased, then they only acted in self-defense. If, on the other hand, they opened fire on him, they must have gone to the store with the express purpose of taking his life if the opportunity was offered. The accused also introduced testimony tending to prove that deceased had made threats against Mow, but that they were ignorant of these threats at the time when the homicide occurred. Withers fell, and expired almost immediately, near the stove. A 45 caliber revolver was found near his body, from which he had not fired more than four shots during the affray. Two witnesses who were with the deceased at the storeroom for some time during the evening, and only left shortly before the tragedy, testified they did not notice that he was armed. They describe his dress, as well as the manner in which he was standing, from which it may fairly be inferred that, if he had been armed with a weapon as large as a 45 caliber revolver, they would have noticed it. There is also testimony to the effect that deceased, when at home, was in the habit of keeping his revolver in the bed which he occupied in the store. One witness testified that he was in the storeroom from 15 minutes to half an hour before the shooting occurred, and that while there he noticed McCoy come to the front of the store, peer through the glass in the front door, and then go away; and that he was accompanied by another party, whom he did not recognize.

The above, in brief, is a statement of the material oral testimony in the case. It throws but little light upon the question of who fired the first shot, outside of the statements of the accused. In determining this vital question, however, we are aided very materially by the examination of a plat showing the bullet marks in the storeroom, in connection with testimony regarding the direction from which the bullets causing them were fired, as exhibited by such marks. According to the testimony of all the eyewitnesses, it appears that the deceased was standing in the rear of the store, facing towards the front, and that the accused were standing at or near the opposite end of the stove, behind which deceased was standing, and facing him. If, as contended, he fired the first shot, he must have done so from that position. There is no evidence of any bullet marks in the room which would have been made had he fired a shot while standing in the position claimed by the accused. The plat above referred to shows that almost immediately in the rear of where the deceased was standing at this time, and in line with the point where either one or the other of the accused were standing, the mark of a bullet was found in the wall. According to the testimony of Mow, the deceased retreated in the direction of his bedroom, and that he followed him. Mow claims that this first shot was the one which blinded him. If that were true, it is rather strange that in this condition he would follow the deceased on his retreat. Besides, it is fairly inferable from the plat that, if deceased fired the shot from where he was standing when the accused entered the room, and at Mow where he was standing, the distance was so great that Mow would not have been burned by the flash of the power. The doctor says that the shot which caused this injury was fired very close to his face. If deceased was unarmed, that explains why he retreated towards his bedroom, for, according to the testimony, that is where he would have found his revolver. Mow says the first shot he fired was in the direction of the rack containing the pick handles. One of them was marked with a bullet. This rack was near the bedroom door. This circumstance supports...