Express Malice
The line between deliberate, premeditated killing and self defense

by Jess Brovsky-Eaker
Colorado Supreme Court building

In Colorado, several provisions exist to protect anyone acting in self defense, but the state’s laws around first-degree murder are often debated as they usually inform each other in sequence, according to Hinton v. People. / LAW WEEK FILE

First-degree murder is “the deliberate and premed-itated killing of a human being with express malice,” according to determinations made in Watkins v. People in 1965, but at what point can a jury determine the act was not in self-defense? The popular question has been debated for decades both in and out of court, but few have approached the topic with as much gusto as James Hinton, who in 1969 was convicted of the stabbing death of 16-year-old Tommie Hughes.

According to court records, Hughes on Dec. 11, 1965, attended a high school play with a friend and then went to a local drive-in restaurant with another friend. At the restaurant, Hughes spotted her boyfriend on a date with another girl and became ill-tempered and belligerent for the remainder of the evening, forcing the group to leave and then go to a different restaurant.

In the parking lot of the next restaurant, Hughes’s friends began interacting with Hinton and another young man who got into the car with the rest of the group. Hinton then asked Hughes for a cigarette and she responded with a string of profanity and put out her lit cigarette on Hinton’s hand. A skirmish broke out at that time that culminated in the fatal stabbing of Hughes, who got out of the car to ask a nearby person for a weapon and then rushed toward Hinton screaming obscenities.

Because Hinton left the car with an opened knife while Hughes was still some distance away and speaking with someone else, the jury convicted him of first-degree murder. Additionally, eyewitnesses reported hearing Hinton yell, “I’ll kill you,” before stabbing Hughes.

Because Hughes did not die at the scene and was transported to a nearby hospital for emergency surgery that proved ineffective, the photos of her fatal stab wounds also included various surgical incisions and associated bruising. Hinton, among other objections, said the photo admit-ted as evidence for his trial was inflammatory. Additionally, he pursued a self-defense plea, stating Hughes rushed toward him and fought with him for some minutes while screaming she would kill him. Hinton also argued a jury instruction noting his interest in the case may have impacted his testimony after he testified at trial in his own defense.

The events according to Hinton were not sufficient to sway the Colorado Supreme Court in his 1969 appeal. The court found no prejudicial error existed and rejected Hinton’s other claims, but the case’s novel approach to express malice and other qualifying elements of first-degree murder charges swayed more than 30 other cases to cite the findings in their own court filings. Hinton v. People established that if a killing was proven to be premeditated or deliberate, the court need not also prove express malice.

This article appeared in the Dec. 7 issue of Law Week Colorado. To read other articles from that issue, order a copy online. Subscribers can request a digital PDF of the issue.