Vigil v. People, 18926

• Decision Date: 13 June 1960
• Docket Number: No. 18926,18926
• Citation: 353 P.2d 82,143 Colo. 328
• Parties: Juan De Dios VIGIL, also known as John D. D. Vigil, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 82

353 P.2d 82

143 Colo. 328

Juan De Dios VIGIL, also known as John D. D. Vigil, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error.

No. 18926.

Supreme Court of Colorado, En Banc.

June 13, 1960.

Henry Blickhahn, Alamosa, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., John E. Bush, Asst. Atty. Gen., for defendant in error.

DAY, Justice.

Juan De Dios Vigil was convicted of murder in the second degree by a jury in Conejos County. From the judgment and sentence entered by the court, he brings this writ of error.

The defendant alleges several grounds upon which he relies for reversal of the conviction. One, relating to the admission of the exhibits, has no merit and deserves no comment. The other grounds are: 1. That the verdict is not sustained by the evidence and that his motion for directed verdict should have been sustained; or, in the alternative, that neither a case in first nor of second degree murder was made out and the verdicts covering those degrees should not have been submitted to the jury; 2. That the court erred in refusing to instruct the jury on involuntary manslaughter and to submit a verdict on that issue; 3. that the instruction on self-defense is not in the language of the statute and does not properly state the law.

The circumstances surrounding the death which resulted in the trial and conviction of Vigil were related by several witnesses for the state and by the defendant himself when he was called upon to testify on his own behalf. The day in question was a local election day. A group of men were gathered on a road outside Capulin, Colorado, talking, singing and imbibing intoxicants. Among those in the group was Ralph Valdez, the decedent, who was a well-developed young man twenty-seven years of age. The defendant, a seventy year old man, traveling along the same road on the way to visit his daughter, encountered the group and stopped to join in the drinking. Although the various members of the group who were called upon to testify could not give in detail exactly what happened, the gist of their story was that someone heard a shot; at that time they looked, and the defendant and Valdez were about ten feet apart; that they heard no words passed between the decedent and the defendant; that it was not apparent at first that any one was hurt; that someone heard the defendant say in Spanish, 'I killed someone.' The defendant's version of the affair was that several weeks before the homicide the decedent and his brothers had stayed with defendant; that they had robbed him of $40; that he was afraid of them, and that they might hurt him. He put the gun, 'an ancient model,' in his pocket before going to town, but that he had not used it for a long time, and didn't even think it was loaded. He testified that during the drinking and singing decedent came up to him and struck him and cursed him and threatened to beat him, and that he pulled the gun out and waved it only to scare Valdez away; that the gun accidently discharged; that he did not intend to harm or kill anyone.

First Question To Be Determined

Should the court have directed a verdict of not guilty, or if a denial of the motion was proper, should the verdicts of first and second degree murder be withheld from consideration by the jury?

This question is answered in the negative.

There was sufficient evidence to support the contention of the prosecution that the offense of murder in the first degree had been committed. Under the theory advanced in argument by the state, a jury could find from the evidence that because Vigil had been the victim of a robbery at the hands of decedent he was seeking revenge. Thus the motive and opportunity for deliberation was in the record for whatever weight the jury might give it. Although the evidence is of a negative character, it was within the province of the jury to determine whether it established beyond a reasonable doubt that there was no justification or considerable provocation in the circumstances of the homicide. Hence an instruction and form of verdict on second degree murder was proper.

Second Question To Be Determined

Was the defendant entitled to instructions on involuntary manslaughter and excusable homicide and to have submitted to the jury a verdict on involuntary manslaughter?

This question is answered in the affirmative.

The court had this identical question before it in Baker v. People, 114 Colo. 50, 160 P.2d 983, 986. In elaborating on the answer to the question posed, we can do no better than to cite a few excerpts from the Baker case where an instruction on excusable homicide was declared proper and was given, but an instruction on manslaughter was refused. The court said:

'The information here charged murder in the first degree and consequently included all the lower grades of criminal homicide. It follows that if there was evidence relative to manslaughter offered by either the people or the defendant, its credibility and weight was for the jury to consider in determining the facts, and proper instructions upon manslaughter should have been given. We have repeatedly held that if there is evidence tending to establish a statutory grade of homicide, the court's refusal to instruct thereon is error. (citing cases)'

In the case at bar, Vigil testified that he didn't think the gun was loaded and that he was merely waving it around to scare the decedent away and it went off accidently. The statute (C.R.S. '53, 40-2-7) defining involuntary manslaughter is:

'Involuntary manslaughter shall consist in the killing of a human being without any intent so to do; in the commission of an unlawful act or a lawful act which probably might produce such a consequence, in an...