Jabich v. People

Citations

• 58 Colo. 175

Syllabus

<p>1. Criminal Law — Change of Tenue. Information for. wilful murder. More than 90 percent of the population of the county subject to jury duty resided in, and in the vicinity of, the mining town in which the homicide was committed. There was a strong prejudice in that community against men of the nativity of the accused. Immediately after the homicide a mob pursued the accused, threatening to lynch him, and the sheriff had thought it necessary to remove him to another county for safe keeping. Newspapers had published untruthful and inflammatory accounts, highly prejudicial to the accused Held that a change of the venue should, in the exercise of a sound discretion, have been allowed. (178)</p> <p>2. -Renewal of Motion, after Conviction Reversed, must be upon a new showing, of the conditions then existing. (178)-</p> <p>3. -Homicide by Mis-adventure — Elements. .To establish this defense it must appear (1) That the accused was engaged in a lawful act. (2) That he was not guilty of any want of due care in the act causing the death. (3) That the homicide was accidental and not intentional. (179)</p> <p>4. '-Instructions. No matter how unreasonable or improbable the defense asserted, the accused is entitled to an appropriate instruction upon the hypothesis that it may be true. (179)</p> <p>Where, upon the trial of an information for murder the defense is that the accused was lawfully defending himself against an assault, and during the encounter the deceased was accidentally killed, the court should instruct upon the law of self-defense in connection with the law defining death by misadventure, because the question whether the accused was lawfully exercising the right of self-defense is involved in the defense of homicide by accident. Hilan v. People 27 Colo. 206 explained. (179, 181)</p> <p>5. -Forms of Terdict — Duty of Counsel. By custom and usage in this jurisdiction, it is the practice of the court of its own motion to have prepared and sent out to the jury, forms