Crawford v. People

12 Colo. 290

• Court: Supreme Court of Colorado
• Decided: December 15, 1888
• Status: Published

Opinion

Chief Justice Helm

delivered the opinion of the court.

There is some contrariety of judicial opinion with reference to the duty of a trial court in charging juries upon the different grades of felonious homicide. Certain authorities seem to hold that in such cases the law bearing upon all grades included in the indictment should be given, regardless of the evidence before the jury. But a careful examination of the subject leads us to the conclusion that the following rule is supported by a large preponderance of authority: When there is any evidence whatever tending to establish a certain statutory grade of criminal homicide, and the court refuses to charge the jury with reference thereto, error is committed; but if there be a total absence of evidence relating to the particular grade disregarded, the charge cannot be successfully challenged on the ground of such omission. Whart. Crim. Law, § 3163a; McNevins v. People, 61 Barb. 307; Lane v. Com. 59 Pa. St. 375; Reynolds v. State, 14 Tex. App. 432; Baker v. People, 40 Mich. 411; King v. State, 71 Ala. 1; Rutherford v. State, 16 Tex. App. 649; Moore v. State, 15 Tex. App. 1; Territory v. Gay, 2 Dak. 125; Territory v. Nichols, 3 N. M.-; Adams v. State, 29 Ohio St. 412.

At the trial of the case at bar an instruction was asked informing the jury that they might find the defendant guilty of either of the four grades into which murder and manslaughter are by our statute divided. The court, however, not only refused to give this instruction, but also failed to charge the jury in any manner concerning the two lesser grades of crime.

In cases where death ensues from poison, or where the defendant lies in wait for his victim, or where the deceased is a helpless infant, and the like, there may sometimes be hut little hazard in declining to instruct upon the grades of manslaughter. But where there is an affray, and where self-defense-is a defense relied on, the' court exercises an exceedingly dangerous prerogative in refusing to charge upon the minor' as well as the graver offenses covered by the indictment. He should be absolutely certain that there is'an entire absence of evidence bearing upon the particular grade or grades omitted.

The refusal of the court below to instruct in this case upon the subject of voluntary manslaughter was error. By statute the accused in criminal cases is permitted to become a witness, and when once upon the stand all the ordinary rules of evidence apply to him. He is subject to cross-examination, his testimony may be impeached, the circumstances under which he testifies may be considered, and perjury on his part can be as readily disclosed as in the case of other witnesses. The jury are to give his testimony such credit and such weight as in their judgment shall, under all the circumstances, be proper. They may accept it as true or they may reject it as false. But, however incredible or unreasonable such testimony shall seem, the accused is entitled to an instruction upon the hypothesis that it may be true. People v. Keefer, 65 Cal. 232; State v. Banks, 73 Mo. 592.

We shall not examine at length the testimony of defendant Crawford. The evidence shows without question that at the time of the homicide there was a quarrel between defendant and Gideon Pratt, followed by an affray, during which violent, profane and angry words were used by both parties, and in which they engaged in a physical rencounter of considerable duration, grappling and exchanging blows. The firing of the fatal shot grew out of this affray, and was directly connected with and a part of it. There were circumstances tending to excite a “ sudden heat of passion.” Whether such circumstances amounted to the statutory “provocation,” or caused the passion which the statute denominates “irresistible,” was not for the court to determine. «The testimony of defendant shows the existence of violent anger, and, if it were accepted as true, might have led to a verdict of voluntary manslaughter.

We do not say that such should have been the verdict, or that the jury would have found differently had they been properly instructed. What we do say is that there was not an entire absence of evidence tending to establish the crime of manslaughter, and that defendant was entitled to an instruction with reference thereto. It is obviously impossible for us to hold that the error thus committed was without prejudice.

We deem it unnecessary to discuss the remaining errors assigned and argued. The judgment will be reversed and the cause remanded.

Reversed.