Anderson v. Territory.

• Citation: 4 N.M. 213,13 P. 21
• Parties: ANDERSONv.TERRITORY.
• Decision Date: 28 January 1887
• Court: New Mexico Supreme Court

4 N.M. 213

13 P. 21

ANDERSON

v.TERRITORY.

Supreme Court of the Territory of New Mexico.

January 28, 1887.

Appeal from district court, Socorro county.

Indictment for murder.

An instruction that, if defendant killed deceased in the heat of passion, the offense would not be murder in the first degree, is properly refused, where there is no evidence of such facts in the case.

Wm. Breeden, Atty. Gen., for the Territory.

John S. Sniffen, for appellant

LONG, C. J.

The defendant in the court below, who is appellant here, was indicted for murder in the first degree and upon that charge tried, found guilty, and sentenced to death. After indictment and before trial, to-wit, March 22, A. D. 1886, at the regular March term of the district court, sitting in the said county of Socorro, the defendant was furnished with a list of all the regular jurors and of the talesmen for said term of court, and was placed on his trial on the twenty-fourth day of said month. The evidence is in the record, and conclusively proves a case of willful, deliberate, and premeditated murder, without a shadow even of excuse or justification. It is established that t000he defendant and the deceased, Alfonso Williams, were part of a lot of hands working at a rock quarry in Socorro county; that about 11 o'clock, or between that hour and 12, on the day of the shooting, the defendant repeatedly tried to get a pistol, offering $25 for one, with the avowed purpose to kill the deceased, and that he made repeated threats to that effect. The disceased was indisposed, and lying on a bunk in the room of the house where he slept, with several of the work-hands present. The defendant came to the window of the room where deceased was at the time, about 1 o'clock in the afternoon, and thrust his arm through an open window, and began firing upon deceased as he was lying upon the bunk. The firing was continued with a revolver until five shots were discharged, and the deceased mortally wounded. One shot penetrated the walls of the abdomen, perforated the intestines, and thereby caused the death of the deceased some days after the shooting. Nothing occurred as any just legal provocation to the act, or to cause hot blood. It was a cold-blooded murder, in open day, in the presence of witnesses.

The defendant assigns and presents to this court, as grounds for reversing the judgment of the court below, 10 reasons, as follows: First, the refusal of the court to grant defendant a continuance; second, alleged error in forcing the defendant to trial without the witnesses for whose evidence a continuance was asked; third, the refusal of the court to give certain instructions asked by the defendant; fourth, giving by the court of certain instructions; fifth, in omitting to instruct the jury that, if defendant took deceased's life in the heat of passion, it would not be murder in the first degree; sixth, in permitting T. H. Yerger to act as a juror, while being of defective hearing; seventh, because the verdict is against the weight of the evidence; eighth, because there is no evidence to support the verdict; ninth, because of the rejection of relevant evidence offered by defendant; tenth, because of alleged error, “in not granting defendant a new trial on the ground that two of the jurors who sat on said trial were not citizens of the United States and qualified jurors.” The defendant presented to the court before trial an affidavit for continuance, and thereon moved to continue the cause, which motion was overruled; and this action of the court constitutes the alleged error, included within the first and second assignments. So much of the affidavit for continuance as is material to the contention is as follows: “ Third. That subpœnas were duly issued in said cause by this court, on the ___ day of March, 1886, and placed in the hands of Charles T. Russell, sheriff of Socorro county, for service on the said witnesses. Fourth. That the said subpœnas required the said witnesses to be present in court at this March term, to testify for the defendant in said cause; but the said witnesses were not served, on account that the residence or whereabouts of the said witnesses could not be found; that affiant has made diligent search and inquiry, and has written several letters to Topeka, Kansas, and to Valley Falls, Kansas, where the said witnesses were reported to be; but said witnesses were not there; and not until within the last ten days has this affiant learned that one of the said witnesses' (Ben Heine's) whereabouts has been ascertained, which is about forty miles from Valley Falls, Kansas. It was reported to this affiant, and he had reason to believe, that the said witnesses were in Socorro county, and therefore the affiant had aforesaid subpœnas issued for them.” This is the affidavit of Mr. Sniffen, while that of J. M. Anderson, a brother of the defendant, relating to the material question here involved is in these words: “That affiant has, within the past few days, ascertained the whereabouts of said Sam Steele and Ben Heines; that the said Sam Steele was then in the city of Topeka, Kansas, and the said Ben Heines was at Turner Station, Kansas.” The indictment was returned into court on the nineteenth day of November, 1885, and charges that the murder was committed on the twenty-first day of June of the same year. The defendant was arrested the day of the killing, the time charged in the indictment. The affidavit for continuance was filed in the court on the twenty-third day of March, 1886. The day when the subpœnas for the two witnesses, Steele and Heines, were issued by the clerk and placed in the hands of the sheriff is left blank, as appears above, the date not being filled in, so it is impossible to determine how long before the motion for continuance was made the subpœna was issued. A careful examination of the record and also of appellant's brief has been made for something to supply this omission, and to ascertain the time when such writ was issued; but that fact is nowhere disclosed. It is true that it is stated in the affidavit of John S. Sniffen that “it was reported to this affiant, and he had reason to believe, that said witnesses were in Socorro county;” but when it was so reported, whether the day or a month before, the affidavit does not disclose. It is also stated in the affidavit “that affiant has made diligent search and inquiry, and has written several letters to Topeka and Valley Falls, Kansas.” Of whom did he make inquiry,-of those likely to know the whereabouts of the witnesses, or of strangers, having no probable knowledge on that subject? When did he make inquiry,-the day before, or a week or month earlier? When and to whom were the letters written, and to whom directed,-the parties themselves, their friends, or to strangers? On all these points the affidavit is vague and indefinite. The affidavit of Sniffen further states: “Within the last ten days this affiant has learned that Ben Heines, one of said witnesses, is about forty miles from Valley Falls, Kansas.” So far as appears by this averment, the information was obtained only the day before the affidavit was made, as that was within 10 days. It is said in the affidavit that the witnesses were not served because they could not be found. Whether they could be found or not was a matter depending on the diligence exercised by the defendant, and the law imposed the duty upon him to show his acts done, if any, in trying to find the witnesses, so the court looking at them might determine whether they amounted to legal diligence. As applicable to this point, the following legislative enactments should be considered: “Sec. 2048. A continuance shall not be granted for any cause growing out of the fault or negligence of the party applying therefor.” “Sec. 2049, [second clause.] Efforts constituting due diligence, which have been used to obtain such witness or his testimony, shall be shown.” Under this statute, if the defendant was negligent in his effort to procure the witnesses, he could have no continuance on the ground of their absence. It is especially notable that the defendant filed no affidavit at all. His brother and Sniffen filed written statements under oath, and that constituted the whole of the showing. The prisoner, on such application, must establish diligence affirmatively. He may in this case at all times have known of the whereabouts of the witnesses, and neglected to either communicate such fact to his counsel, or to have a subpœna issue for them. Nothing to the contrary is shown. Twelve days before the trial the absent witnesses may have been in the very town of Socorro, within defendant's knowledge, and yet the showing may be true. The court was right in refusing to continue the cause, for the reason that no diligence was shown by the defendant to procure the attendance of his witnesses. This view of the question disposes of the first and second objections made by the prisoner.

Did the court commit error in refusing to read to the jury instructions asked by the defendant? The first and second of such instructions related to reasonable doubts, and were fully embraced within the third and fifth of those given by the court on its own motion. It is well-settled law that, when the court has fully instructed the jury on a point asked, no error is committed by refusing to give others, on request, differing only in phraseology, but not in substance, from instructions already given. “It is not error to refuse to give instructions asked for, even if correct, in point of law, provided those given cover the entire case.” Laber v. Cooper, 7 Wall. 566; Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291; Thomp. Char. Jur. § 92. In the last authority cited a large number of cases are collected fully sustaining the text. Indeed, the rule is familiar and well settled. The alleged error about which complaint is made, upon the instructions given by the court and in refusing...