People v. Tidwell

• Decision Date: 16 July 1886
• Citation: 4 Utah 506,12 P. 61
• Court: Utah Supreme Court
• Parties: THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. THOMAS TIDWELL and JOSEPH ANDERSON, APPELLANTS

12 P. 61

4 Utah 506

THE PEOPLE OF THE TERRITORY OF UTAH, RESPONDENT, v. THOMAS TIDWELL and JOSEPH ANDERSON, APPELLANTS

Supreme Court of Utah

July 16, 1886

APPEAL from convictions, one defendant for murder in the second degree, the other defendant for voluntary manslaughter in the district court of the first district. The opinion states the facts, except the following:

The instructions given by the court upon the subject of the burden of proof, are as follows:

The statute of this territory provides that "Upon a trial for murder, the commission of the homicide by the defendant being proved, the burden of proving circumstances of mitigation, or that justify or excuse it devolves upon him unless the proof on the part of the prosecution tends to show that the crime committed only amounts to manslaughter, or that the defendant was justifiable or excusable."

I understand this statute to mean, that if the homicide is proved beyond a reasonable doubt, and if in making this proof the prosecution have not shown circumstances in mitigation or that excuse or justify it, then the legal inference is that the homicide was murder, but, if the defense be, as an independent exculpatory fact, that the killing was not done in malice, but was the result of sudden passion, or in necessary self-defense, in order to make these pleas available as a matter of defense they must be sustained by affirmative proof, proof so preponderating over the proof of the prosecution, in denial of these independent exculpatory facts, as to create in the minds of the jury a reasonable doubt of the guilt of the defendant. The burden of what should be proved beyond a reasonable doubt, never shifts to the defendants, but the prosecution having proven beyond a reasonable doubt the fact of the killing, unless the circumstances of mitigation, or that justify or excuse it arise out of the evidence against them, the prisoners must take upon themselves the burden of satisfying the jury by a preponderance of evidence that such circumstances existed at the time of the killing, to the extent of raising in their minds a reasonable doubt of the guilt of the defendants.

If you believe from the evidence that the deceased, August Sorenson had in fact stolen and drove away an animal belonging to the defendants, or either of them, and that he had in fact killed another animal of defendants, or either of them, and converted the carcass or a portion thereof, to his own use; and if you further believe from the evidence, that both facts, or that one of them, was known to the defendants, or that they had prior to the homicide reasonable cause for believing that Sorenson had so killed and stolen animals of defendants, and that they had followed Sorenson with purpose of arresting him, or of recovering any of the property of them, or of either of them from the possession of Sorenson; and if you further believe from the evidence that the defendants on the 7th day of November, A. D. 1884, at Emery county, in this territory, came upon deceased and his herd of cattle and discovered an animal belonging to one of the defendants, in said herd, and in the possession of the deceased; and if you further believe from the evidence, that the defendants, or one of them, in the presence of the others charged the deceased with having killed one animal not his own, and with having others in his herd, and that deceased then and there drew a loaded pistol and leveled it on one of the defendants in a threatening manner, and afterward upon the request of said defendants lowered his weapon and indicated his intention to proceed no further towards combat; and that afterwards the defendants, or one of them, in the presence of the others threatened to arrest deceased, and then and there shots were interchanged between two of the defendants and deceased, and the deceased was then and there shot to death by defendants, or either of them, with the consent and in the presence of the others, I instruct you that the burden of proving the necessity or excuse or justification for the killing is upon the defendants, and they must establish the same by a preponderance of evidence, unless the evidence on the part of the prosecution tends to show such necessity, excuse, or justification.

Judgments rendered.

Mr. Arthur Brown, Messrs. Sutherland & Son, Mr. Jacob Johnson and Mr. David Evans, for appellants.

Mr. W. H. Dickson and Mr. Charles S. Varian, for respondent.

ZANE C. J. BOREMAN, J. concurring. POWERS, J. dissenting.

OPINION

ZANE, C. J.:

The defendants were tried in the first district court on an indictment charging them with the murder of one Augustus Sorenson, and the defendants Frank and Thomas Tidwell were found guilty of murder in the second degree, and the defendant Anderson guilty of voluntary manslaughter. They were all sentenced to terms of imprisonment in the penitentiary Frank for six years and six months, Thomas for five years and six months, and Anderson for one year and six months. From this judgment the defendants Thomas Tidwell and Joseph Anderson appealed to this court.

It appears form the evidence that the deceased had purchased a drove of cattle, which he was driving in Utah assisted by one Toedt, to his home in Colorado, when the defendants overtook him, and charged him with stealing two heifers, which they alleged were Thomas Tidwell's. The evidence also tends to prove that they threatened to arrest deceased; that angry words followed, shots were exchanged, and Sorenson was killed. In justification of the killing, defendants, on the trial, offered evidence to prove that at the time of the killing they were endeavoring to arrest the deceased for the larceny of the two heifers claimed to be the property of the defendant Thomas Tidwell. They had no warrant authorizing his arrest, and neither of them was an officer. In order to make out the crime of larceny it was necessary for them to prove property, either general or special, in some one. They relied on evidence of general property in Thomas Tidwell. This the prosecution contested, as well as the good faith of that defense, and for that purpose offered in rebuttal proof that a third party was the owner of the animals in dispute, which the court permitted to go to the jury. The ruling of the court in so doing the defendants assign as error. In view of the nature of the defense, and the evidence relating thereto, we are of the opinion that...