Taylor v. People

• Decision Date: 30 September 1895
• Parties: TAYLOR v. PEOPLE.
• Court: Colorado Supreme Court

42 P. 652

21 Colo. 426

TAYLOR v. PEOPLE.

Supreme Court of Colorado

September 30, 1895

Error to district court, Conejos county.

Abe Taylor was convicted of murder, and brings error. Affirmed.

An information was filed in the district court of Conejos county charging the plaintiff in error, Abe Taylor, and William Thompson, with the murder of Charles Emerson; Taylor as principal, and Thompson as accessory. This information was verified by the district attorney, following which verification was an affidavit by Robert C. Cooper to the effect that the facts stated in the foregoing information were true, and the offense therein charged was committed of his (Cooper's) own personal knowledge. A plea of not guilty was entered, trial had upon the issue thus joined, and a verdict of guilty of murder of the first degree was returned against Taylor. Upon this verdict the plaintiff in error was sentenced by the court to be hanged, and from this judgment he has brought his case here upon writ of error.

Charles A. Johnson and V. A. Elliott, for plaintiff in error.

B. L Carr, Atty. Gen., and F. P. Secor, Asst. Atty. Gen., for the People.

CAMPBELL J. (after stating the facts).

Of the numerous errors assigned there are but three which we deem necessary to consider. The first relates to the right and authority of the district attorney to file the information the second, to erroneous rulings of the court upon the evidence; the third, to errors in the instructions given by the court.

1. The general objection is urged by counsel for plaintiff in error that their client was tried and convicted without due process of law. The specific error assigned thereunder is that the defendant was given no preliminary examination, and did not waive the same. This being so, they contend that, before the district court had any authority to allow an information to be filed, an ffidavit, as provided for in section 8 of the information act of 1893, must first be filed, and that this was not done. Neither a motion to quash nor other pleading attacking the information upon any ground was filed by the defendant; but, on the contrary, he entered his plea of not guilty, and went to trial upon the merits. If there was no preliminary examination (as to which we are not advised by anything in the record), it was the duty of the defendant, at the proper time, and in the proper proceeding, to show that fact to the district court, and the record should disclose the existence of the alleged defect in jurisdiction; and if as a matter of fact, there was no preliminary examination, and the affidavit required by section 8 had not been filed in the district court, it was likewise the duty of the defendant in an appropriate way to call the attention of the district court to the absence of the necessary affidavit. But, as the defendant entirely neglected to avail himself of his proper remedy at the appropriate time, it is too late for him to be heard with respect thereto in this court, even if there be merit in his contention. Brown v. People (Colo. Sup.) 36 P. 1040, and cases cited.

2. A brief summary of the facts will elucidate the discussion of the errors assigned to the rulings of the trial court in sustaining objections to questions propounded by defendant's counsel. The evidence generally tended strongly to show that Taylor and his codefendant, Thompson had stolen a wagon load of oats, which they had brought from near the town of La Jara to the town of Alamosa for the purpose of disposing of the same. The owner of the oats, having discovered the theft, gave notice thereof to a deputy sheriff at La Jara, who sent a telegram to Emerson, the town marshal and constable at Alamosa, requesting him to detain the supposed thieves. Upon receipt of this message Emerson went to the store of one Gerteisen, in the town of Alamosa, where Taylor at the time was trying to sell the oats, and, after ascertaining that Taylor claimed to own the oats, and to have them in his possession, Emerson, as an officer, placed Taylor under arrest, and informed him that he would have to remain in his custody until the subject of the larceny could be further investigated. Taylor asserted his innocence, and declared that there must be some mistake, but at that time made no resistance to the arrest, and submitted to the direction of Emerson to go with him to an elevator, a short distance from the store, where the wagon containing the oats had been left by Taylor in charge of his codefendant, Thompson. On the way to the elevator, and after they reached the wagon, some conversation was had between Emerson and Taylor, in which Emerson explained to Taylor that his purpose was to take the wagon to a livery stable, where it would be protected, and then take the defendants to jail. In pursuance of this intention, Emerson requested Taylor to get upon the wagon to drive the two teams of horses attached thereto; but Taylor, in turn, asked Emerson to drive the teams, stating that they were balky, and that he (Taylor) would make the leaders pull. Emerson complied with this request, and got into the wagon, while Taylor stood at the head of one of the led horses, and Thompson at the head of the other. The effort to start the horses was unsuccessful, and Emerson then called to Taylor to get into the wagon, and drive the teams, as they would not pull for him. Apparently Taylor gave his consent to this, and started from the place where he was standing to get into the wagon, from which Emerson was preparing to alight. Taylor had upon his person, as he himself states, a revolver, but as he started towards the wagon he either took from Thompson's person, or Thompson gave to him, a larger revolver, which he held in his hand as he advanced. Before Emerson alighted, Taylor says that he drew or threw his revolver upon Emerson, calling, 'Hold up!' Almost immediately following this exclamation, Taylor fired one or more shots at Emerson, who returned the fire, and several shots were then exchanged by them, when Emerson fell, mortally wounded, and Taylor fled from the scene of the killing. In this connection Taylor was asked by his counsel 'what he thought Emerson was going to do as he jumped from the wagon.' The court sustained the objection of the district attorney to this question, but no exception was saved by the defendant's counsel, and, strictly, he is not now entitled to press the error assigned. But we do not place our decision as to this ruling upon a technical ground. Unquestionably, in a criminal case, where the intention is material, the defendant may testify as to the intent with which he did the act charged. So, also, and for the same reason, he may testify as to what he thought the deceased intended to do when the act in question was committed by the defendant. The court might well have allowed the question to be asked, but in a preceding part of his testimony Taylor had already testified that he saw that Emerson 'aimed to jerk his gun and shoot' as he was about to jump from the wagon; and, in effect, assigned that fact as a reason for his own conduct. Therefore there was no reason for repeating an answer which had already been given. Then, too, subsequently, in his cross-examination, the defendant testified that during all the time that he was under arrest he had upon his person a revolver; that when he started from the head of the led team to get upon the wagon he...