State v. Costales.

• Decision Date: 09 January 1933
• Docket Number: No. 3818.,3818.
• Citation: 19 P.2d 189,37 N.M. 115
• Parties: STATEv.COSTALES.
• Court: New Mexico Supreme Court

37 N.M. 115

19 P.2d 189

STATE

v.COSTALES.

No. 3818.

Supreme Court of New Mexico.

Jan. 9, 1933.Rehearing Denied Feb. 27, 1933.

Appeal from District Court, Bernalillo County; Helmick, Judge.

Albino Costales was convicted of assault with intent to kill, and he appeals.

Affirmed.

Size of juror's vocabulary or extent of his ability to understand English are not proper subjects of inquiry after verdict.

Robert H. La Follette and Kenneth G. Speir, both of Albuquerque, for appellant.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

HUDSPETH, J.

The appellant, Albino Costales, hereinafter referred to as defendant, was convicted in the district court of Bernalillo county of the crime of assault with intent to kill, and, from the judgment and sentence to a term in the penitentiary, he appeals.

The following statement of the facts appears in appellant's brief:

“On the 19th day of November, 1931, Charlie N. Burgin was working as a stationary fireman in the powerhouse at the Santa Fé Shops in Albuquerque, New Mexico, and had been working at said shops for more than nine years, and was acquainted with the defendant, Albino Costales, who on said date was working at said shops at the planing mill as a fireman and out of each week said Albino Costales spent one day as an oiler in the main power plant. ***

“About six-thirty in the evening, Charlie N. Burgin went around behind the boilers, got a box to sit on and ate his lunch. Shortly afterwards while sitting on the box and about fourteen inches from the window and preparing to smoke, he was shot in the shoulder, by a twenty-two calibre bullet, which came through a window of the power house, making a little round hole. At that time about half of Burgin's body was exposed to the outside.”

A flash-light was found near the point from which the bullet was fired. The police force of Albuquerque rendered efficient service in detecting and preserving evidence of the crime, and arrested defendant. He at first denied that he had been near the scene of the crime, and stated that his rifle and flash-light were at his home, and made other false statements, but, after his rifle and flash-light were exhibited to him at the police station, he signed a statement, which follows:

“Albuquerque, N. M. Nov. 20th, 1931.

“The following statements are true to the best of my knowledge & belief & are made without duress & without being promised anything in return.

“I Albino Costales, age 43 of 503 E. Manuel, work at the planing mill at the Santa Fé Shop. On 11-19-31 I went to work at 4 P. M. & took my rifle with me in car. It had one cartridge in it. It is a 22 calibre Winchester pump rifle. About 7:00 P. M. I took my rifle & proceeded as described in attached diagram to the power house & while passing the East side of the power house I stumbled & the gun went off. I heard some one yell inside the power house & I got scared & went back. I hid the rifle on east side of the planing mill.

“This is the first time I have brought my rifle to the shops.

“I also lost my flashlight on east side of the power house.

“I was shown the flashlight at the Police Station.

“Albino D. Costales.”

The seniority rule prevailed in the shops; that is, the oldest man in point of service had the right to the job. A steam line was being built from the main plant, where Burgin worked, to the planing mill, where defendant was employed as fireman, with the purpose of eliminating the steam plant in the planing mill. Defendant talked with various parties shortly before the crime was committed about his prospect of being laid off upon the completion of the steam line. Burgin was defendant's senior in point of service. It was the state's theory that defendant committed the crime in an effort to make a vacancy in order that he might retain a job in the shops. Defendant had been convicted of theft of a car about ten years previously.

[1] The first point urged by defendant is that the court erred in overruling his motion to have Jesus Candelaria, an employee of the engineering department of the city of Albuquerque, excused from the jury for cause “on the grounds of pecuniary interest, real or imaginary, and of business relationship with one who had participated actively in the prosecution of said defendant, it appearing that the Police Department of said city had been active in the prosecution.”

Under the rule prevailing in most jurisdictions, Candelaria was a qualified juror. Thompson v. Commonwealth, 88 Va. 45, 13 S. E. 304; State v. Lewis, 50 Nev. 212, 255 P. 1002; 35 C. J. 313. However, it is sufficient to say that it is not shown that an objectionable juror was forced upon the defendant by the ruling of the court. The juror was excused upon a peremptory challenge exercised by the defendant. Three jurors were selected after defendant had exhausted his challenges, but it is not shown that any one of them was objectionable. The rule is stated in State v. Bailey, 27 N. M. 145, 198 P. 529, 530, where the following quotation from Colbert v. Journal Pub. Co., 19 N. M. 156, 142 P. 146, appears: “It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges.”

The defendant maintains that the court erred in overruling the motion for a new trial because Gregorio Lopez served on the jury and was not able to understand or speak the English language except in its most elementary form, which facts were only discovered by defendant after the trial had been held without the aid of an interpreter and the verdict rendered. The learned counsel of the defendant does not maintain that ignorance of the English language is ground for the disqualification of a juror, but states that the juror deceived court and counsel on voir dire by representing that he understood English. He cites cases listed in annotation following State v. Pratt (114 Kan. 660, 220 P. 505) in 34 A. L. R. 189.

[2] The juror is of the same blood as defendant; Spanish being the mother tongue of both. Nearly half of those possessing the qualifications of a juror in this state are of like origin. Provision is made by law for a Spanish-English interpreter for the district courts, and it is the uniform practice to use an interpreter whenever any member of the jury requests it, or states that he does not understand English sufficiently well to fully comprehend the proceedings. Defendant had a right to examine the juror. State v. Douthitt, 26 N. M. 532, 194 P. 879; Territory v. Lynch, 18 N. M. 15, 133 P. 405. It has been held, in cases involving statutory qualifications, that the defendant, by accepting the juror, waived his right to object after the verdict was rendered. Territory v. Baker, 4 N. M. (Gild.) 236, 13 P. 30; U. S. v. Folsom, 7 N. M. 532, 38 P. 70; U. S. v. Gomez, 7 N. M. 554, 37 P. 1101. The trial court, which has large discretion in the matter (People v. Loper, 159 Cal. 6, 112 P. 720, Ann. Cas. 1912B, 1193; annotation, 34 A. L. R. 194), was satisfied as to the qualifications of the juror.

[3] In view of the frequency with which this question is raised and of the fact that the members of the bar fully realize that it is their duty to satisfy themselves as to the ability of the jurors to comprehend English before the services of an interpreter are dispensed with, we hold that the size of a juror's vocabulary, or the extent of his ability to understand English, are not proper subjects of inquiry after the verdict is rendered.

[4][5] The next point urged by defendant is stated as follows: “It is reversible error for the trial court to refuse to admit in evidence a revolver of a defendant charged with assault with intent to kill, (by the use of a 22 calibre rifle), where the defendant had testified to the ownership of such a revolver, the same being offered as evidence of his choice of weapons, and for the purpose of proving the absence of an intent to kill.”

The defendant had testified, without objection, that the pistol was of “forty-five or thirty-eight” caliber, and that he had had the weapon in his house for three or four years. A defendant has a right to fortify his own testimony on a point in issue in any way that he can. D'Ambra v. Rhinelander, 234 N. Y. 289, 137 N. E. 333. But this pistol was tendered in evidence to corroborate the defendant on a collateral issue, and in such cases it is largely within the discretion of the trial court to say what proof of collateral facts is or is not too remote. Fitch v. Martin, 84 Neb. 745, 122 N. W. 50; State v. Leeper, 199 Iowa, 432, 200 N. W. 732; Lock v. Chicago, B. & Q. R. Co., 281 Mo. 532, 219 S. W. 919; 22 C. J. 168; 10 R. C. L. p. 927.

“Evidence may be relevant, and yet its relevancy may be so slight and inconsequential that to receive it would be to distract attention that ought to be concentrated on what bears directly on vital points, and to confuse rather than to illuminate the case.” State v. Wade, 96 Conn. 238, 113 A. 458, 462.

The proffered...