Smith v. People
| Decision Date | 02 May 1960 |
| Docket Number | No. 19070,19070 |
| Parties | Jerry Clyde SMITH, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
H. Ted Rubin, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John F. Brauer, Asst. Atty. Gen., for defendant in error.
We shall refer to plaintiff in error as defendant, the position he occupied in the trial court where with one Keenan he was jointly charged with the murder of Clifford Gurley. A severance was granted and upon trial a verdict of guilty of second degree murder was returned against defendant. He was sentenced to a term in the state penitentiary and seeks review here by writ of error. Defendant assigns as error the denial of his motion for a directed verdict on the ground that the evidence was insufficient to make out a case against him.
Briefly stated the facts are as follows: On the way home from an evening of beer drinking, Smith and the deceased, Gurley, became involved in argument while riding in the back seat of one Brunick's car. Smith asked Brunick to stop the car, he alighted and then with Gurley went to the back of the car where he hit Gurley a few times and knocked him down once. Smith and Gurley then returned to the car; shortly thereafter Gurley was let off at his home, and Smith at his home. There Smith met Keenan and accompanied the latter in Keenan's car to the home of one Charles Swartz, with whom Keenan planned to straighten out a problem. On the way to the Swartz home when the Keenan car stopped for a stop sign, Gurley entered Keenan's car and Smith slapped him two or three times. When Swartz later entered the front seat of the car, Smith held his neck from behind. Smith, who was sitting in the back seat with Gurley, subsequently told Keenan that Gurley was choking him. Keenan stopped the car, opened the left rear door and Gurley kicked at him. Keenan grabbed Gurley's feet, pulled him out and then proceeded to beat him. Throughout this attack on Gurley by Keenan, Smith remained in the car holding on to Swartz. Keenan laid Gurley in the ditch, returned to the car and drove away. A short time later they returned and Smith put Gurley in the car and they drove to the night Marshal's office. Gurley was subsequently declared dead.
Medical evidence indicated that Gurley had been beaten beyond recognition; that he had died of a basal skull fracture; that the thyroid cartilage of the neck had been broken; that the middle of one eye was level across with his other eyebrow. Other evidence of a severe beating was noted.
Defendant was seventeen years of age when this occurred, and on the fatal night had engaged in a drinking bout with others including Gurley in Wray, Colorado. They there drank a considerable quantity of liquor, then drove to Haigler, Nebraska where more intoxicants were consumed and it was on the return trip from Haigler to Wray the events above recited took place.
It is manifest from the record that after defendant had the first altercation with Gurley at the rear of Brunick's automobile, both Gurley and defendant reentered the car without difficulty and that no further trouble ensued between them, except that thereafter while in...
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