## Facts

- An irrigation ditch constructed by Baer ran through Mark Power’s ranch land.
- A dispute arose over control and operation of the ditch and claimed water rights connected to it.
- Power’s sister demanded certain water rights in the ditch, but Baer refused to recognize any such rights.
- Baer asserted his own right to occupy, use, and maintain the ditch where it crossed the Power property.
- The conflict escalated into a confrontation during which Power shot Baer with a firearm and Baer died from the gunshot wounds.
- Power was indicted for murder in the District Court of Montrose County, tried to a jury, and convicted of first-degree murder.
- At trial, the court instructed the jury that even if Baer’s operation of the ditch was unlawful or a trespass, that fact did not justify killing him.
- Power sought review by writ of error, challenging the conviction based on the sufficiency of the evidence and claimed instructional and evidentiary errors.

## Issues

1. Whether the evidence, including Power’s intentional use of a deadly weapon in the circumstances shown, permitted the jury to find the elements of first-degree murder (malice, deliberation, and premeditation).
2. Whether the trial court erred by instructing that Baer’s alleged unlawful operation of the ditch on Power’s (or his sister’s) land did not justify the homicide.
3. Whether the challenged jury instructions and trial rulings, viewed as a whole, amounted to reversible error.

## Decision

- The Colorado Supreme Court affirmed the judgment of conviction for first-degree murder.
- The court held that the jury could infer malice, deliberation, and premeditation from the intentional use of a deadly weapon, together with the surrounding circumstances.
- The court approved the instruction that a property or ditch-rights dispute, even if involving trespass or unlawful ditch operation, did not make the killing lawful.
- The court found no reversible error in the complained-of instructions or other trial rulings when considered in the context of the entire charge and record.

## Legal Principles

- A jury may infer malice aforethought from an intentional killing with a deadly weapon when the manner of use and surrounding circumstances support that inference.
- Deliberation and premeditation, like malice, may be inferred from the intentional use of a deadly weapon under appropriate circumstances; the inference is for the jury and is not conclusive.
- A dispute over real property, water rights, or ditch operation does not justify homicide; deadly force is not lawful merely to prevent or respond to a trespass.
- Instructions must allow the jury to consider all the evidence on the defendant’s state of mind and any lawful justification, but the court may correctly tell the jury that property interference alone is not a legal excuse for killing.

## Conclusion

In *Power v. People*, the Colorado Supreme Court upheld Power’s first-degree murder conviction for fatally shooting Baer during a ditch and water-rights dispute, ruling that the jury could infer malice, deliberation, and premeditation from Power’s intentional use of a deadly weapon and that the trial court properly instructed that even unlawful ditch operation or trespass did not justify the homicide.


Power v. People, 17 Colo. 178, 28 P. 1121 (1892)