Piel v. People

• Decision Date: 04 December 1911
• Citation: 119 P. 687,52 Colo. 1
• Parties: PIEL v. PEOPLE.
• Court: Colorado Supreme Court

119 P. 687

52 Colo. 1

PIEL v. PEOPLE.

Supreme Court of Colorado, En Banc

December 4, 1911

Error to District Court, Weld County; James E. Garrigues, Judge.

Fred Piel was convicted of murder, and he brings error. Reversed.

F. W. Sanborn and G. Q. Richmond, for plaintiff in error.

John T Barnett, Atty. Gen., James M. Brinson, Deputy Atty. Gen Benjamin Griffith, Atty. Gen., and Theo. M. Stuart, Asst Atty. Gen., for the People.

WHITE J.

Fred Piel, a native of Russia, unable to speak or understand the English language, was tried for, and convicted of, the murder of George Kerber, and, upon the verdict of the jury sentenced to death. He brings the case here for review.

The difficulty, resulting in the death, occurred at the home of Henry Frank, the father-in-law of the defendant, about dusk of the evening of October 24, 1909. Mr. Frank, who is also a Russian, had invited the members of his family, and a few friends, to celebrate the Sunday in a way common among the Russians in that section. He provided for the occasion a keg of beer and a bottle of whisky. In the forenoon of the day defendant at his own home drank several glasses of whisky, becoming somewhat intoxicated, and in the afternoon, still under the influence of the liquor, he, as an invited guest, went to Henry Frank's house, taking with him a quart bottle of whisky. Thereafter the defendant, with other members of the Frank family, and three or four neighbors, drank the greater portion of the keg of beer; the defendant imbibing from 15 to 20 glasses. About 4 o'clock the deceased, with two friends, none of whom had been invited, but who all appeared to be welcome, stopped at the Frank house and participated in the festivities. They, in company with the defendant and others, drank a few glasses of whisky, and, in an apparently friendly manner, remained in the house about half an hour talking. Defendant and deceased thereupon became involved in a quarrel over the ownership or value of a beer keg, which had been used at some previous like party or picnic. Thereupon Lizzie Frank, the defendant's sister-in-law, requested them to be quiet and to leave the house. The parties, except defendant and the Frank family, presently retired to the yard congregating at, or near, the southwest corner of a house belonging to one Weigant, a neighbor residing about 100 feet south of the Frank house. There they engaged in general conversation relative to their crops and the harvesting thereof. About 15 minutes thereafter, defendant came out of his father-in-law's house and went to the barn to answer a call of nature. Emerging from the barn, he saw the group at the corner of the Weigant house and joined them. Upon approaching and seeing the deceased, defendant asked him why he had struck him in the house, to which deceased replied: 'Stand back, I don't want to talk to you.' Thereupon the defendant and deceased almost simultaneously began fighting, striking each other with their fists, across or over the shoulders of one Wray; the latter placing his hands on each of the combatants and endeavoring to keep them apart. They pushed Wray aside, and the deceased stepped back a few feet and picked up a board, an inch or so thick, three or four inches wide, and three or four feet long. As the deceased was raising up to strike defendant with the board, or simultaneously with the stroke therefrom, the defendant drew from his pocket an ordinary pocket knife, having a blade about two inches long, and in a dazed condition stabbed the deceased with the knife, penetrating the abdominal wall, inflicting the wound from which the deceased died. When the board struck or fell upon the head of defendant, the latter stumbled to the ground, while the deceased turned, walked to the barn, and presently returned exhibiting the wound, and announcing his belief that he would die therefrom. The defendant, without comment or giving utterance to any words, made his way into his father-in-law's house, wiped the blood from his face, caused by the blows, and lay down upon a bed. He thereafter, the same night, with his wife and child, drove to his own home, at which place he was later arrested.

John Weigant, Jr., a boy not quite 15 years old, testified that he was standing at the door of his father's house--the house 100 feet south of the Frank house--when Piel came out of the latter house; that Kerber and the other men had stepped to the corner of the Weigant house, a few feet away; that, when Piel came out of the Frank house, he had his hand in his coat pocket and held a knife therein with a blade five inches long; that he came down talking, and when he got near to Kerber the latter said, 'Stand back, I don't want to speak to you'; that, as Kerber said, 'Stand back,' Piel 'struck at George Kerber, and George Kerber struck. He had turned Jim Wray out between the two. Then when Jim Wray was out Piel went around, and Kerber picked up a board, and, when he was about to strike, he stabbed him, and then he dropped the board and hit him a little bit with the board, and then he ran around the barn and when he came back he was stabbed.'

Other evidence shows that deceased and defendant lived upon the same farm within 200 feet of each other; that they were employed by the same man; that deceased visited at defendant's home, and the two were good friends.

No exceptions were taken at the trial to the decisions of the court in admitting or rejecting evidence, or to the instructions given to the jury in behalf of the people. The defendant made no request for instructions. The only exceptions taken were to the decision of the court in overruling the motion for a new trial, the refusal of the court to allow the filing of a motion in arrest of judgment, and to permit counsel, at the time of sentence, to interpose objections and exceptions to the instructions given. It is proper to say that counsel representing defendant here did not represent him at the trial below, and here urge many matters which they conceive to be erroneous.

Under the authority vested in us, and the forms of law prescribed, we have no power to decide matters which in no legal manner have been submitted for our consideration. Smith v. People, 1 Colo. 121; Noble v. People, 23 Colo. 9, 45 P. 376; Chipman v. People, 24 Colo. 520, 523, 52 P. 677; Keady v. People, 32 Colo. 57, 64, 74 P. 892, 66 L.R.A. 353; Weaver v. People, 47 Colo. 617, 618, 108 P. 331.

Were we to assume that defendant had a right to file a motion in arrest of judgment, the denial of such right in no wise prejudiced him. No alleged error exists in support of such motion, which cannot, without the motion, be properly presented for determination. Defendant's counsel practically concede this. They admit that a motion in arrest of judgment, that does not affect the real merits of the offense charged, should be denied, and that they are not in a position to advance any special grounds why the motion, if filed, should have been sustained.

Under the condition of the record, the only matter which we can consider is whether the evidence is sufficient to support the verdict and sentence.

We are not impressed with young Weigant's testimony. He is in no wise corroborated. Other witnesses having better opportunity than he saw no knife until after the fistic encounter. It is very clear that, while the blows with the fists were being struck, defendant had no knife in his hand. If young Weigant saw a knife with a blade five inches long, inclosed in defendant's hand, protruding from his coat pocket, as he passed from the house towards the barn, it was not the knife the other witnesses saw, including those for the state, and with which the fatal blow was struck. Moreover, the altercation...