Warford v. People , 41 Colo. 203 ( 1907 )

Mr. Justice Goddard

delivered the opinión of the court:

1. Did the court err in rejecting the testimony offered to prove the instructions in pursuance of which the plaintiff in error approached the deceased and requested him and Miller to remove outside the 100-foot limit? The attorney general contends that the evidence was inadmissible for the reason that the agreement entered into by the county officials and the committees of the respective political parties was an absolute nullity because it was an attempt to deprive the judges of election of the power to appoint constables, conferred upon them by the statute (Mills’ Ann. Stats., § 1618), and that Mr. Allen exceeded his authority as deputy sheriff in attempting to carry out the agreement in ordering the plaintiff in' error to remove Leabo and Miller from the 100-foot limit, and therefore such orders afforded no justification for any attempted interference with Leabo and Miller by the plaintiff in error.

It may be conceded that the action taken by the county officials and the committees, notwithstanding it was a wise and prudent precaution in the circumstances, was without authority of law, and did not confer upon the sheriff or the plaintiff in error authority to carry out such arrangement.

The controlling question, however, is not whether he had the right or legal authority to remove Leabo without the 100-foot limit, but did he believe he had the authority to do so ?

Since malice is an essential ingredient of the crime of murder, he was entitled to show, not only his official capacity, but also the instructions under which he was acting, for the purpose of throwing light upon his motive at the time he approached the deceased, and it was for'the jury to determine from all the circumstances in which he acted, the capacity in which, and the instructions, if any, under which he was acting, whether he was actuated by malice or whether in good faith he approached the deceased in obedience to the instructions of his superior. This testimony, therefore, was clearly admissible, and it-is manifest that the court committed an error prejudicial to the rights of the plaintiff in error in rejecting it.

2. The admissibility of proof of threats communicated or uncommunicated, where there is any evidence tending to show self-defense, is too well settled to admit of discussion. While counsel for the people concede that this is the general rule, they attempt to justify the exclusion of the testimony of Inman that threats were made by deceased and communicated by him to the plaintiff in error shortly before the homicide, upon the assumption that plaintiff in error was the aggressor in that he acted without authority and approached deceased in a hostile manner.

The claim of the defense is that the plaintiff in error, acting under the belief that he had the right and that it was his duty to do so, approached Leabo and Miller and in a gentlemanly manner requested them to retire from the 100-foot limit, and thereupon, without any justification for so doing, Leabo started to draw his gun, and that the plaintiff in error believed that his life was in imminent and immediate danger, and that in necessary self-defense he had the right to do what he did. Testimony had been introduced tending to support these claims of the defendant.

Under' this state of the evidence, the offered proof of communicated threats recently made by the deceased against the plaintiff in error should have been admitted. As expressed in the case of Davidson v. The People, 4 Colo. 145, “It is the province of the jury to judge of the credibility of witnesses; to judge of the character of the acts on the part of the deceased testified to, as hostile or not, and it is the right of a prisoner to have the jury consider the acts of deceased in the light of recent threats made by him. ’ ’

Numerous errors are assigned upon the giving and refusing certain instructions, but it is unnecessary to consider them, since the foregoing errors necessitate a reversal of the judgment.

For the reasons given, the judgment is reversed.

Reversed.

Mr. Justice Gabbert and Mr. Justice Bailey concur.