Faulkner v. Territory.

• Decision Date: 09 August 1892
• Citation: 6 N.M. 464,30 P. 905
• Parties: FAULKNERv.TERRITORY.
• Court: New Mexico Supreme Court

6 N.M. 464

30 P. 905

FAULKNER

v.TERRITORY.

Supreme Court of the Territory of New Mexico.

Aug. 9, 1892.

Error to district court, San Miguel county; JAMES O'BRIEN, Judge.

Frederick Faulkner was convicted of murder in the first degree, and brings error. Affirmed.

Where defendant was a witness in his own behalf, the court properly instructed the jury that they might take into consideration defendant's special interest in the case, in deciding what weight should be given to his testimony.

Miguel Salazar and J. Leahy, for plaintiff in error.

E. L. Bartlett, Sol. Gen., and L. C. Fort, Dist. Atty., for defendant in error.

SEEDS, J.

The plaintiff in error was tried at the last April term of the San Miguel district court upon an indictment, found by the grand jury of Colfax county, charging him with murder in the first degree. The jury found him guilty, and, in accordance with the law, the court adjudged him to suffer death by hanging. From the judgment of that court he has appealed to this court and it now becomes our duty to pass upon the errors which he has assigned and urged upon us as a reason for the reversal of that judgment. It will be necessary to state somewhat fully the facts as shown by the record and the bill of exceptions, in order to appreciate the assignment of errors which he has made. He was indicted by a grand jury of Colfax county upon the 25th of March, 1892, for the murder of one James Lannon in that county upon August 9, 1891. Upon the following day, to wit, March 26, 1892, he was arraigned in open court, and, stating that he was too poor to procure counsel, the court appointed M. Salazar, Esq., and J. Leahy, Esq., to defend him. He then admitted that his true name was “Frederick Faulkner,” instead of “Frank Woods” or “Frank Decker.” On the 28th of March he came into court, attended by his counsel, and pleaded not guilty. At the same time he asked for a change of venue because of the local prejudice, which was granted, and his case was sent to San Miguel county for the April term of the district court, and set for trial on the third Monday of that term, which was the 18th day of April. Upon that day, it being the 13th day of the term, and the day set for his trial, he came into court, attended by his counsel, and made application for a continuance upon various grounds. The court took the application under immediate consideration, and denied it. The jury was impaneled, the evidence submitted, and on the 19th day of April the jury returned their verdict of guilty, as charged. On the 20th of April the defendant filed his motion for a new trial, assigning six classes of errors as reasons for granting the same. The motion was denied. A motion in arrest of judgment was then made and overruled, whereupon the court passed sentence of death.

If the evidence introduced upon the part of the territory, as exhibited by the bill of exceptions, was all legally before the jury, then it proved the following state of facts: That on or about the 1st of August, 1891, the defendant and a man by the name of James Lannon were in Trinidad, Colo.; that the man (James Lannon) was possessed of two fair-sized sorrel horses, a wagon, and some camping utensils, and also some money; that the defendant was in search of work; that about the 7th of August the defendant left Trinidad in the company of a man answering to the description of James Lannon, in a wagon, with a camping outfit, and drawn by two sorrel or gray horses; that on or about the night of the 7th of August two persons were seen camping upon the Trinchera, a small river in Colfax county, N. M., and that they had with them two gray horses, but the size was not positively stated; that upon the next day, near this place, but a few paces away in the bushes, where the two persons were seen camping with the gray horses, was found a dead man wrapped up in a blanket, and bound with wire; that the back part of his head was mashed in, as if with a blunt instrument, while there were two gashes upon either side of his face, as though made by the blade of an axe. A few feet away was found an axe with blood upon the handle, and upon a trial it was found that the axe blade fitted perfectly into the gashes upon the face. The description of the dead man, as far as it went, though not very minute, answered to that of the man Lannon. Upon the day the dead man was found, and early in the morning, the defendant was seen in Folsom, Colfax county, N. M., some 12 or 13 miles from the place where the dead man was found, and he had in his possession a team of sorrel or gray horses, with a lumber wagon and a camping outfit. Upon the night of the following day the defendant was arrested in Colorado, about 150 miles from the place where the man was found dead. He was camping, and had with him the team of sorrel horses, the wagon, and the camping outfit. There were also found in the wagon two valises, from one of which were taken a postal card and letters. The postal card was addressed to James Lannon. The defendant claimed to the officers who arrested him that he had bought the team and wagon, and the owner had given him a bill of sale for the same, but that he had sent it to his mother, and had forgotten the name of the vendor. He told the officer further that he had left Trinidad with an old gentleman, and that they had camped together “there” that night, and that he had slept on the one side of the wagon and the old gentleman upon the other, and that two Mexicans came there, and camped with them, and that the next morning they presented a Winchester at him, and told him to hitch up the team and pull out, and that he supposed the old gentleman was killed. On the 13th of August the defendant was brought before a justice at Folsom, and there waived examination, but, in answer to questions which were propounded to him by the justice, said that he did not know the man's name; that he did know it, but had forgotten it. He said that “he was present when the man was killed; that a lot of Mexicans came there in the morning when he was hitching up, putting the harnesses on the horses, and the first thing he knew the old man was dead, and they throwed down their guns on him, and told him to leave the country just as fast as he could.” Some time after this there was an examination before another justice at Springer, in Colfax county, of one Bob Carr, accused of the murder of the man Lannon. The defendant herein was the prosecuting witness for the territory, and there testified substantially as follows, as testified to by a witness who heard him in that case: He said that his name was Woods. “He said that he and this old man, Lannon, went into camp that evening on the Trinchera, New Mexico, and about nine o'clock in the evening Robert Carr rode up on horseback. He was at that time in bed. The old man was still around the fire, and he said Carr came over to him and said, ‘Get up out of here, and take off my saddle.’ He said he got up, and took it off, and went right back to bed, and he heard Carr and the old man, Lannon, talking, and he turned over in bed, and looked down in the direction of where they were, and the next thing he knew anything about was early in the morning, -I believe he stated about four o'clock, -when Carr came to him, and says, ‘Get up out of there, and get into this wagon and start.’ He said the team was hitched up, ready to go. All he did was to get up, load his bed up, throw it into the wagon, and, just about the time he was ready to go, he said Carr picked up a watch, and pitched it over in the wagon bed, and Carr said, ‘Go on; don't stop;’ and he said he started at that. Then there was a whole lot of talk about his stopping at the grocery store,” etc. The man Carr was a witness in this case, and corroborated the above testimony as to what the defendant testified to before the justice in Springer. He also testified that he did not know the man, Lannon; that he had never seen him; that he was not on the Trinchera upon the night of the killing, and had never seen the defendant with Lannon. The testimony also shows that the defendant, after his arrest, had been searched a number of times; that upon the first search there was found upon him some pass books and some money; that upon the search made about two months after his arrest there was found upon him a watch.

This was the testimony of the territory. The defendant testified in his own behalf substantially as follows: That his right name was Fred Faulkner, but that his mother had been married a second time to a man by the name of Woods, and that he went by that name; that he was in the insane asylum at Pueblo, Colo., during the latter part of July, 1891, but had escaped, and come to Trinidad in search of work; that there he met and became acquainted with Bob Carr, and agreed with him to go out as a cook for a surveying party; that upon the same day, but later, he, the defendant, went down the street, “and I seen him talking to the old man, and” afterwards “he gave me an introduction to him, but not by the name he is here called;” that he remained a day or two longer in Trinidad, visiting the Salvation Army, of which he was a member, when Carr started him and the old man off, telling him he would come later, but, as he owed his hotel bill, that he didn't wish to give the appearance of leaving just then; that about 8 or 9 o'clock at night he overtook them at their camp; that Carr ordered him to get up and feed his horse, which he did; that, being very tired, he immediately returned to his bed, and fell into a sound sleep; that the next morning Carr woke him up, told him to put the things into the wagon, and that they would start; that he asked Carr where the driver was, and that he replied, “Drive on; he is all right;” that he was going to ask him some other questions, but that he pulled out his gun, and told him to “go on;” that he drove ahead to Folsom, where he obtained something to eat by...