Ritchey v. People

• Decision Date: 07 December 1896
• Parties: RITCHEY v. PEOPLE [1]).
• Court: Colorado Supreme Court

47 P. 272

23 Colo. 314

RITCHEY v. PEOPLE ^[1]).

Supreme Court of Colorado

December 7, 1896

Error to district court, Boulder county.

J. J Ritchey was convicted of murder in the second degree, and he brings error. Reversed.

Patterson, Richardson & Hawkins, for plaintiff in error.

Byron L. Carr, Atty. Gen., and Calvin E. Reed, Asst. Atty. Gen for the People.

CAMPBELL J.

At the October, 1895, term of the district court of Boulder county the defendant, J. J. Ritchey, was informed against for the murder of B. E. Rhodes, in said county, on the 11th day of May, 1895. He was tried at the same term convicted of murder in the second degree, and sentenced to confinement in the penitentiary for a period of 20 years. To reverse the judgment upon this writ of error, his counsel rely upon three alleged errors of the district court. The defendant admitted the killing, and justified under a plea of self-defense. He was the owner of a tunnel and a mine in Boulder county, which were under lease by him to the deceased, Rhodes, and McClelland Brown. A forfeiture of the lease was claimed by the defendant for a failure by the lessees to comply with certain covenants, for the breach of which the lessor, by the terms of the lease, might declare a forefeiture, and re-enter and take possession. The lessees denied this forfeiture. On the morning of the 11th of May, 1895, during the temporary absence of the lessees, and at an early hour in the day before they began work, the defendant, in company with three or four of his employés, peaceably entered upon the premises, and took possession. When Rhodes arrived a short time thereafter, it appears that he learned of what the defendant had done; and upon his endeavor to go into possession himself, and oust defendant and his assistants, and while deceased and defendant were alone in the tunnel, and out of sight of the witnesses, the altercation arose in which Rhodes lost his life, at the hands of Ritchey. So far as the record discloses, there is no living witness to the shooting except the defendant himself; and his testimony is that in the endeavor to oust the defendant, and regain possession for himself, during the controversy the deceased violently assaulted the defendant with a rock and a knife, and in order to repel the assault, and save his own life, which he then believed to be in peril, he (the defendant) fired the shot that killed Rhodes. While, upon one hand, under the hypothesis that the jury might believe the evidence introduced in behalf of the people tending to show that defendant sought out and provoked the difficulty, that he might have a pretext for the killing, an instruction would have been proper the effect of which was to deprive the defendant of his plea of self-defense, nevertheless there was evidence before the jury, produced in defendant's behalf, which made pertinent instructions by the court defining the law pertaining to the right of self-defense; especially where, at the time in question, the defendant was in a place where he had a right to be, and while he was engaged in a lawful business, and in defending his person and property. It was necessary, therefore, for the jury to be correctly instructed upon the law of the case, upon the supposition that they might believe the evidence introduced in behalf of the defendant.

The first contention of plaintiff in error is that the evidence was insufficient to justify the verdict. In view of the fact that there must be a retrial of this case, we decline to enter upon a discussion of the evidence further than to say that, after a careful examination of the record, we find no reason for disturbing the judgment upon this ground.

Another of the errors assigned is that the court improperly received the testimony of Patrick Casey, a deaf mute, and also, after its admission, erred in not granting the defendant's motion to withdraw it from the jury. The method of examining this witness was by submitting to him written questions, to which he replied in writing, and the questions and answers were then read to the jury. His testimony in part related to alleged conversations had between him and the defendant, in which Casey swore that the defendant, some time prior to the homicide, threatened to shoot the deceased. No objection was made to this testimony as it was given, and not until the district attorney had practically closed his examination in chief. Then counsel for the defendant moved the court to withdraw all the evidence given by the witness, and based their application upon three grounds: First, that no exact time was fixed when the threats were made; second, because of the difficulty of examining the witness; third, because it appeared that the conversation between Casey and the defendant during which these threats were made, was through and by the medium of written questions and answers; and, before a witness is permitted to testify as to the contents, it should first be shown that the written questions and answers are not to be had in court. The court overruled the motion. That difficulty attends the examination of a deaf-mute is no reason why his testimony should be excluded. Contrary to the assertion of counsel, the time of the conversation at which the threats were said to have been made, the record shows, was specifically stated. Assuming, but not so deciding, that such portions of the testimony of Casey as purported to recount the conversation which he had with the defendant concerning the threats were reduced to writing, and hence were inadmissible until proof of loss of the original writing was made, it does not necessarily follow that the court erred in refusing to grant defendant's motion to strike out the testimony. Casey had given important testimony as to other matters. In his testimony, defendant claimed that, in the previous November, his trunk had been broken open, and from it, among other things, was stolen a knife. This knife was found in the tunnel near where Rhodes was killed, a few minutes after the homicide; and the defendant testified that it was with this knife that Rhodes made the felonious attack upon him, and that with it Rhodes had in several places cut the defendant's shirt, in the attempt to inflict upon him bodily injury, just before the defendant resisted the assault by firing the fatal shot. When Casey was upon the stand, he testified that defendant had this knife in his possession, and at his house, and on his person, long after November, and until shortly before the homicide, and that during this period of time he (Casey) had often used this knife to sharpen pencils and to trim his nails. It must be borne in mind that this motion went to the entire evidence. If any portion of it was admissible, the motion ought not to have been granted. That the evidence relating to the knife was properly admitted is beyond controversy. The court, therefore, was not obliged to subdivide the defendant's motion, and its ruling rejecting the same was right. Upon the foregoing the court is unanimous.

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