People v. Catton

• Decision Date: 18 February 1888
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. ANDREW CALTON, APPELLANT

16 P. 902

5 Utah 451

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. ANDREW CALTON, APPELLANT

Supreme Court of Utah

February 18, 1888

APPEAL from a judgment of the district court of the second district and from an order refusing a new trial. The opinion states the facts.

Affirmed.

Mr Presley Denney and Mr. J. W. Christian, for appellant.

Mr George S. Peters and Mr. W. H. Dickson, for respondent.

ZANE, C. J. BOREMAN, J., concurred. HENDERSON, J., dissenting.

OPINION

ZANE C. J.:

At the September term of the district court of the second judicial district, the appellant was found guilty by a jury of the crime of murder in the first degree. A motion for a new trial having been submitted and overruled, and the defendant, as was his legal right, having elected shooting as the mode of punishment, the court sentenced him to be shot on the 26th day of November, 1887. From that judgment he has appealed to this court.

The first ground of reversal relied upon by the defendant, in the order we will consider the errors assigned, is that the evidence was insufficient to authorize the verdict. It appears from the evidence given on the trial that the deceased, Michael Cullen, and the appellant, Andrew Calton, and one Jerry Tiberty were acquaintances, and were residents of Star mining district, in the Territory of Utah; that about 10 o'clock of the morning of July 14, 1887, these men met a few miles away in the town of Milford, the two last named having gone there together. Tiberty testified to this effect: When they alighted, Michael Cullen came up, and they went into a saloon and drank with him. That during the day they drank together five or six times. Once or twice they had beer; the other times, whisky. It appears that they started home about 6 o'clock in the evening of the same day, Calton and Cullen sitting on the wagon seat, and Tiberty lying on some ore-sacks behind them; that Calton was driving, and Cullen sitting to his left. Tiberty testified, further: Soon after they had started, they all took a drink out of a bottle, and after they had crossed the railroad Calton's whip-lash dropped off, and he (witness) left the bottle on the sacks, and jumped out to get the lash. While he was tying it on, Cullen asked for a drink, and witness told him he could get it if he would turn around. Cullen did so, but witness did not see whether they drank or not. He himself was busy with the whip, and when he looked up he said, "you are fine fellows to drink without offering me any." Calton answered, "Mike has it," and said to Cullen, "Give Jerry a drink; it is his whisky." Cullen had the bottle under his arm, and Calton reached over and took hold of the neck of it, and held on, and in the struggle that ensued some of the whisky was spilled; and witness, seeing that Cullen was not willing to give it up, said, "Damn the whisky: I do not want it," and then said, "Drive on," walking ahead a few steps, thinking they would follow. Calton got the bottle, and held it up, saying, "Come back. Here it is: I have it." Witness then went back, and got it, and put it in his side pocket, and again said, "Drive on. I will walk. You may not get any more on the way." After taking a few steps, he looked around, and Calton rose straight up in the wagon, and the two men had their hands on each other's necks. He then ran back, and put his foot on the hub of the front near wheel to get up and separate them, and get in behind the seat. Calton was then leaning over the dash-board. Cullen was in his seat, and did not rise from it, so far as witness saw. Witness then said: "What are you quarreling about--two friends quarreling for nothing. You ought to be ashamed of yourselves." Witness then tried to coax them to let go, and finally said to them that he would put them out if they did not. He tried for a couple of minutes to separate them. Cullen had his hand up, and said: "You will choke, will you, you s--n of a b--h?" and was going to strike Calton. Witness ran his arm between them, and "saved him from the balance." Calton then said, "Let's quit," and they both let go. Cullen was then in the seat, and had not gotten out of it. Calton then picked up a bundle, and jumped out of the wagon, alighting upon his feet. The team started, and witness jumped from the wheel, and, after a little time, with difficulty, got hold of the bridle of the near horse (his hands being crippled). He then heard Calton say, "You will abuse me," or "You will choke, you s--n of a b--h," and, turning around, he saw Calton take his pistol out of the bundle he carried. Calton said, after he got out: "I don't give a damn if you are Matt Cullen's brother; you cannot abuse me." Cullen was sitting in the seat, and it was not a half second after he saw the pistol until the first shot was fired. Calton kept on firing. Witness halloed, "I say, for Christ's sake, quit that." Calton answered, "Oh, he is dead; the first shot killed him, and I might as well give him the rest." Witness said, "No, he is not dead," and he kept on firing, and witness kept saying, "Quit that; he is not dead." Afterwards, when they were coming down to Milford, witness said, "The second or third shot missed fire." Calton then said it was the second. After the shooting, witness said, "Well, we must go back to Milford." Calton answered, "Yes." The witness had dropped his hat when he caught the horses, and Calton picked it up, and witness picked up Calton's, and handed it to him. Witness said to Calton, just as they turned around, that he wished that he had let the horses go, and had tried to grab him, and Calton answered that it was no use; he would have got him anyway. Calton drove back to Milford; the body remaining on the seat by Calton, witness holding it there. As they were going back, witness said he was sorry, and Calton replied that he was sorry too; that he did not pack that gun for Cullen, and he wished it had been Dan Mackintosh. Just outside the town he asked where they should drive, and witness told him. After they reached Milford, Calton said on two or three occasions, when men shook hands with him, that he did not think they would shake hands with a murderer, and said to the witness, "My life is not worth one cent to me now." Witness McKean testified he saw the three men going out. Tiberty appeared to be sober. When they came back, Calton said he shot him, and shot him after he was dead. Calton told witness that the pistol was in its scabbard, and witness got it. Its caliber was 44 or 45. Dr. Fowler made a post mortem examination, and testified that there were nine bullet wounds on the person of the deceased. Four were probably made by one bullet, and three might have been made with another. They were fatal. Witness Baldwin testified that Calton said he shot Cullen because he was choking him; that he shot him in self-defense. Calton also said to one Hague: "Here is your partner. I killed him, and I killed him good." Calton and Tiberty acted as if they were drunk. Calton had some scars on his face and neck. Witness Moore testified that Calton said he killed him the first shot, and thought he would put the balance of the shots in him, and was forced to kill him; that he thought Calton was then intoxicated. A. M. Stoddard testified that Calton said he had been insulted, and bought a pistol with the intention of killing the next man who insulted him; and witness said, "I suppose you have done so now," and Calton replied, "Yes." A. J. Lewis testified that he had known Calton four years; that he had the reputation of being a very quiet man, sometimes not speaking to any one for two or three days; that witness thought that he was crazy; and that Calton received ordinary wages as a miner. O. S. Carver testified that he had known defendant eight or nine years, and that he was always considered a peaceable and quiet citizen. Mr. Burnison also said that defendant had the reputation of being a peaceable and quiet man. There was evidence that Calton had armed himself with a pistol on another occasion, and had made threats of violence; but there was no evidence to show that there had ever been any unfriendly feeling between him and the deceased before the fatal occasion. On the contrary, there was evidence to show that they had been on friendly terms.

Owing to the nature of the case, and of the alleged condition of the three men, and the alleged want of capacity of the appellant, we thought it necessary to state the evidence thus fully. This evidence proves to a moral certainty that the appellant caused the death of the deceased by a pistol shot, and that the killing was not excusable or justifiable. The further question remains, did the appellant inflict the fatal wound with such a deliberate and premeditated intention to take the life of Cullen as authorized the jury to find him guilty of murder in the first degree? It appears from the evidence that while the appellant and the deceased were engaged in an angry altercation in the wagon, attended with personal violence, when remonstrated with by the witness Tiberty, the appellant said "Let's quit," and that the struggle then ceased. That thereupon the appellant got the bundle in which the pistol was, and jumped out of the wagon upon the ground, and saying, "You will abuse me," or "You will choke, you s--n of a b--ch," took his pistol out of the bundle, and cursing the deceased, "I don't give a damn if you are Matt Cullen's brother; you cannot abuse me," he said, and fired the deadly shot while Cullen was sitting upon the seat; and when Tiberty halloed to him to quit, he said, "Oh, he is dead; the first shot killed him, and I might as well give him the rest;" and when told that Cullen was not dead, kept on firing in spite of the remonstrance of Tiberty; and...