People v. Morant, 24797

• Decision Date: 14 August 1972
• Docket Number: No. 24797,24797
• Citation: 179 Colo. 287,499 P.2d 1173
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bessie Pelzer MORANT, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1173

499 P.2d 1173

179 Colo. 287

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Bessie Pelzer MORANT, Defendant-Appellant.

No. 24797.

Supreme Court of Colorado, En Banc.

Aug. 14, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., David A. Sorenson, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colorado State Public Defender, J. D. MacFarlane, Chief Deputy State Public Defender, Kenneth J. Russell, Deputy State Public Defender, Denver, for defendant-appellant.

DAY, Justice.

Bessie Morant, defendant herein, was convicted by a jury of first-degree murder. From this judgment, she appeals.

The salient portions of the record reflect the following: One Harvey--the murder victim--was defendant's paramour. Just preceding the homicide, defendant and her niece, Vivian, were at Harvey's residence. Defendant fell asleep. Harvey apparently attempted to, and possibly succeeded in, seducing Vivian. Defendant awoke and began beating and arguing with Harvey about the affair with Vivian. As the fight ensued, defendant's husband, Thomas, arrived. Harvey departed the premises with Thomas in pursuit and defendant and Vivian following. After a brief chase on foot, Thomas caught and attacked Harvey. Defendant and Vivian arrived as Thomas was beating Harvey. The evidence is in conflict as to whether defendant or Thomas administered the numerous stab wounds which resulted in Harvey's demise.

When the police arrived, defendant and Thomas were found standing in the street near a parked car about a block from the scene, where they were arrested, offering no resistance.

Errors assertedly committed by the trial court, particularly in the matter of the instructions given, were not preserved for appeal as no objections were made to the instructions, and the defects urged in this court for the first time were not included in the motion for a new trial. However,

'* * * 'when we feel that a seriously prejudicial error was made and that justice requires such consideration,' we may of our own motion examine and determine the point. (Cases omitted) Considering the gravity of the offense charged, and the sentence which necessarily attended the verdict returned, we have thought it compatible with reviewing judicial discretion to disregard what may be said to have been oversight of trial counsel, and examine notwithstanding. * * *' McRae v. People, 101 Colo. 155, 71 P.2d 1042.

I.

Defendant's first contention is that the instruction given to the jury on voluntary manslaughter was erroneous. We agree. The instruction reads:

'You are instructed that manslaughter is the unlawful killing of a human being without malice, either express or implied, and without any mixture of deliberation whatever.

'In cases of voluntary manslaughter there must be a serious and highly provoking injury inflicited upon the person killing, or an attempt by the person Killed to commit a serious personal injury on the person killing. The killing must be the result of that sudden violent impulse of passion supposed to be irresistible; for if there should appear to have been an interval between the assault or provocation given and the killing sufficient for the voice of reason and humanity to be heard, the killing shall be attributed to deliberate revenge and punished as murder.

'Where the killing occurs in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense shall be deemed and adjudged to be murder.

'The jury is further instructed that the word 'injury' as used in this instruction need not be a physical injury but can be a mental or emotion (sic) injury.'

Embodied in the first two paragraphs is the recital of the provisions of C.R.S. 1963, 40--2--4, 40--2--5, and 40--2--6, concerning the degree of manslaughter, voluntary manslaughter, and manslaughter under passion respectively. If the instruction had stopped there, it would have correctly instructed the jury concerning the lesser offense. However, the court erred in adding the third paragraph which makes the instruction contradictory and confusing, and could have had the effect of completely nullifying the consideration by the jury of the voluntary manslaughter verdict. The third paragraph, which we find highly prejudicial, was a garbled portion of C.R.S.1963, 40--2--7, relating to involuntary manslaughter, which statute we said in Sawyer v. People, 173 Colo. 351, 478 P.2d 672, was intended

'* * * to demonstrate what is Not involuntary manslaughter. The effect of the proviso language is to point out that when an Involuntary killing happens in the commission of an unlawful act which in its consequences naturally tends to destroy the life of a human being, or is committed in the prosecution of a felonious intent, the offense is not involuntary manslaughter but may be murder as that crime is defined in C.R.S.1963, 40--2--1, 40--2--2 and 40--2--3. * * *'

There was evidence which, if believed by the jury, would have warranted a verdict of voluntary manslaughter as defined in the first two paragraphs of the instructions. By expanding the instruction, the jury was told that the very conduct which would be voluntary manslaughter, I.e., an unlawful act which would in its natural consequences result in death, must be adjudged to be murder.

II.

Another plain error perceived in reading the instructions is the one given the jury regarding specific...