Robinson v. People
Decision Date | 05 January 1925 |
Docket Number | 11130. |
Citation | 232 P. 672,76 Colo. 416 |
Parties | ROBINSON v. PEOPLE. |
Court | Colorado Supreme Court |
Department 3.
Error to District Court, Pueblo County; James A. Park, Judge.
Henry Robinson was convicted of first degree murder, and he brings error and applies for supersedeas.
Application denied, and judgment affirmed.
John B. Barnard and George Penney, both of Pueblo for plaintiff in error.
Wayne C. Williams, Atty. Gen., and Joseph P. O'Connell, Asst Atty. Gen., for the People.
ALLEN J. (sitting for TELLER, C.J.).
The plaintiff in error, hereinafter referred to as defendant, was convicted of murder in the first degree. The jury fixed the penalty at life imprisonment, and defendant was accordingly sentenced to the state penitentiary for life. He has sued out this writ of error, and applies for a supersedeas.
The information charged the defendant jointly with one Pearl Horton with the murder of William Wright. Each defendant moved for a separate trial. The motions were overruled and the accused were tried jointly. At the close of the evidence there was a dismissal as to the defendant Horton.
The instructions to the jury comprised ones dealing with the crime of murder in the first degree. These were objected to upon the ground that the evidence is insufficient to prove murder in the first degree. An assignment of error concerning this instruction, and other assignments, raise the question whether there is sufficient evidence to support a verdict of guilty of murder in the first degree. The contention is that the element of premeditation was not proven.
So far as the facts of this case are concerned, murder in the first degree is defined as 'all murder which shall be perpetrated * * * by any kind of willful, deliberate and premeditated killing.' Section 6665, C. L. 1921. The homicide occurred at the home of the mother of deceased. There was there a disturbance created by some heated conversation carried on by Pearl Horton and the wife of William Wright. Wright requested Pearl Horton and some other visitors, including the defendant who is plaintiff in error here, to leave the house. As such visitors were leaving, the defendant drew a pistol from his pocket. The weapon was discharged, the bullet striking William Wright. There was introduced in evidence the dying declaration of William Wright. It is stated therein that there 'were words' between Mrs. Wright and Pearl Horton; that Wright the declarant, tried to push all of the visitors out of the house, and then defendant shot him. Wright heard the defendant say, 'Don't hit that woman.' Wright was unarmed, and was taking peaceable means to eject the visitors. There was no provocation for the killing. Such are the circumstances cited by plaintiff in error in support of his contention that no premeditation was shown.
In Wharton on Homicide (2d Ed.) § 180, the author says:
"Premeditated' does not require positive proof of an intent prior to the commission of the act, as such prior intent may be inferred from the act.'
In Van Houton v. People, 22 Colo. 53, 43 P. 137, it is said:
The defendant's being armed, and his use of a deadly weapon, was evidence of intent. 30 C.J. 290. The act of killing, and the fact that some time elapsed after Wright sought to eject Pearl Horton, a friend of plaintiff in error, before the shot was fired, are circumstances from which premeditation may be inferred. We cannot say as a matter of law that premeditation was not shown, or that the verdict is not warranted by the evidence.
Error is assigned to the court's refusal to take from the consideration of the jury certain evidence in so far as it affects the defendant Robinson. The evidence in question related to conversations between the wife of deceased and the defendant Horton, not in the presence of defendant Robinson, and to animus existing between defendant Horton and the wife of the deceased. We do not think this evidence was prejudicial to plaintiff in error. The court's failure to instruct the jury to limit this evidence as applicable to defendant Horton only was not reversible error as to the plaintiff in error.
Before the trial the plaintiff in error. filed his motion for a separate trial. Error is assigned to the court's overruling the motion.
The motion was based on section 7097, C. L. 1921, which reads as follows:
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