Walker v. People
| Decision Date | 21 June 1971 |
| Docket Number | No. 23479,23479 |
| Citation | 489 P.2d 584,175 Colo. 173 |
| Parties | Floyd Edward WALKER, Plaintiff in Error, v. The PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Ben Klein, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Hoecher, Asst. Atty. Gen., Denver, for defendant in error.
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Floyd Edward Walker was charged by an information with murder in the first and second degree of Albert Fondal, to which he pled not guilty. He was found guilty of voluntary manslaughter by a jury. By writ of error Walker, hereinafter called defendant, seeks reversal of the judgment or in the alternative a new trial on the charge of manslaughter and dismissal of the charges of murder in the first and second degree.
We find no substantial errors on the part of the trial court requiring a reversal of the judgment or a new trial.
Defendant and victim, Fondal, engaged in an argument. Fondal Pulled out a gun and defendant took the gun away. Victim Fondal stated, 'I'll go home and get my shotgun and come take the pistol,' whereupon he left. Upon his return an argument ensued. Fondal struck the defendant about the face several times. Fondal reached for his back pocket. The defendant then drew a gun and shot Fondal four times, killing him.
Defendant objects to the submission to the jury of the charges of murder in the first and second degree and the instructions pertaining thereto since both charges require a showing of malice and such showing was not made by the Prople.
Murder consists of the unlawful killing of a human being with malice aforethought. Murder in the first degree is the deliberate and premeditated killing of a human being with malice aforethought. Murder in the second degree consists of an unlawful killing with implied malice aforethought, but without premeditation and deliberation. Smith v. People, 142 Colo. 523, 351 P.2d 457, and Tate v. People, 125 Colo. 527, 247 P.2d 665.
Implied malice must of necessity be established by all the facts and circumstances surrounding the crime. It cannot be established as readily as a date on the calendar, or the color of the clothing worn by the victim at the time of the crime. The perpetrator may testify as to his state of mand at the time of the homicide, but the jury is not bound by this statement and may consider the attendant circumstances in resolving the matter. Washington v. People, 158 Colo. 115, 405 P.2d 735, and Lutz v. People, 133 Colo. 229, 293 P.2d 646.
Express malice is that deliberate intention, unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.
Malice shall be implied when no considerable provocation appears, or when all circumstances of the killing show an abandoned and malignant heart. Washington v. People, Supra.
The evidence here indicates that prior to the shooting the defendant and the victim had engaged in a heated argument. The defendant took a pistol from the victim and told him that he would not give the gun to him but would make it available to its owner. The victim stated he would go home, get a shotgun, and return to take back the pistol. The victim returned to the scene where he and the defendant again argued. The victim hit the defendant about the face several times. The defendant drew a gun and shot the victim not once but four times, killing him.
Malice is not implied as a matter of law, but is a questions of fact and whether or not it is to be implied under the circumstances of the case is a question for the jury. Tate v. People, Supra. It was not error here for the court to submit the instructions to the jury because there was sufficient evidence to support a finding of implied malice.
The defendant objects to the conviction of voluntary manslaughter as not being supported by the evidence.
'In cases of voluntary manslaughter there must be a serious and highly provoking injury inflicted upon the person killing, sufficient to excite irresistible passion in a reasonable person, or an attempt by the person killed to commit a serious personal injury on the person killing.' C.R.S.1963, 40--2--5.
At the time of the shooting, Fondal was striking the defendant about the face. There was confliciting testimony as to whether Fondal had threatened to kill the defendant. If from the evidence the jury found considerable provocation, then they were justified in finding the defendant guilty of voluntary manslaughter. Further, where the jury has reached a verdict based upon competent evidence, the jury's verdict will not be disturbed. Johnson v. People, Colo., 468 P.2d 745; Armstead v. People, 168 Colo. 485, 452 P.2d 8; Godfrey v. People, 168 Colo. 299, 451 P.2d 291; and Davis v. People, 112 Colo. 452, 150 P.2d 67.
The defendant claims the trial court erred in denying defendant's motion for mistrial based upon (a) the admission of the testimony of the police officer that the defendant stated that he shot Fondal and (b) the prejudice created by the district attorney's question to the defendant as to whether he carried a gun on June 6, 1964, 18 months prior to the date of the killing.
(a) On direct examination the police officer testified as follows:
'Q What happened when you arrived at the scene?
'A I asked the gentleman which came to the door, I said 'Who was shot?' And he pointed in the other room which was about one step in the doorway, and there was a party lying on the floor. At the same time I saked who did the shooting and he said, 'I did."
The defendant claims the court erred in allowing the officer to testify as to the defendant's admission because the defendant had not been advised of his rights under the Miranda decision, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The Miranda rule applies only to custodial interrogation.
'By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any...
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...circumstances in resolving the true character of his act, including the degree of criminality involved therein. See Walker v. People, 175 Colo. 173, 489 P.2d 584, 586 (1971). The jury was not required to accept Anderson's testimony that he merely intended to wound Lalumiere by shooting him ......
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...we find the error harmless. A correct result reached upon an erroneous analysis is not a basis for reversal. Cf. Walker v. People, 175 Colo. 173, 489 P.2d 584 (1971). We find the defendant's other contentions to be without Accordingly, we affirm. PRINGLE, C.J., concurs in the result. GROVES......
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