Roper v. Territory.

• Decision Date: 25 August 1893
• Citation: 33 P. 1014,7 N.M. 255
• Parties: ROPERv.TERRITORY.
• Court: New Mexico Supreme Court

7 N.M. 255

33 P. 1014

ROPER

v.TERRITORY.

Supreme Court of the Territory of New Mexico.

Aug. 25, 1893.

Appeal from district court, Dona Ana county: Edward P. Seeds, Judge.

John A. Roper was convicted of murder, and appeals. Reversed.

A new trial should not be granted in a murder case on account of the separation of the jury, where such separation was necessary, and defendant was not prejudiced thereby.

Warren, Fergusson & Bruner and R. L. Young, for appellant.

Edward L. Barlett, Sol. Gen., for the Territory.

FALL, J.

This cause comes here by appeal from Dona Ana county. The facts, as disclosed by the record, are as follows: The district court for that county was held at Las Cruces, commencing on the 6th day of March, 1893. On the 9th day of March, Samuel, Steel, a young man of 17 years, a relative of the presiding judge, John R. McFie, was found unconscious at a point on a road or street a short distance from the town, with a bullet entering the eye, penetrating the head, and coming out towards the back part thereof, at a point above the place of entry. The defendant, John A. Roper, was arrested on the next morning, the 10th, promptly indicted for the murder, arraigned and placed upon trial upon the 15th instant. The evidence was entirely circumstantial. Fifteen witnesses were examined for the territory. Samuel Steel, father of deceased, testified as to being called by Rodriguez, and finding his son's body, at 7 or half past 7 P. M., on the evening of the 9th and that deceased died within about two hours. Dr. B. E. Lane examined deceased, and found a wound in the eye, ranging down, and then up, and out at back of head; but only made an examination with fingers. Wound small. Llewellyn Gans, druggist, corroborated Dr. Lane's testimony, and thought wound made by pistol of about 38 caliber. Dr. Petin testified that deceased delivered milk to him at his home, beyond where deceased was found, about sundown, on evening of 9th. Saw no one else pass. Pedro Gonzales testified that he knew defendant, saw him in Las Cruces on afternoon of 9th, in Lapoint's saloon, gambling, and that defendant had a pistol, identified as a 38 caliber. Jacobo Chavez identified pistol secured by officers in arresting defendant as the same which defendant had in Lapoint's saloon. Albert Ellis, that defendant was riding a dark horse, and left town about 6 o'clock or thereabouts; also identified pistol. Adolph Saens, had known defendant. Saw him in Las Cruces, and went with him from Lapoint's saloon to Ellis' corral. On the street met a negro, and defendant asked negro for money, and made him turn his pockets out. Witness told defendant that negro had no money, to “let him alone,” and defendant did so. Witness also identified pistol 38 caliber. Jesus Maria Rivera was coming from Dr. Petin's house about 6 or half past 6 in the evening. Met deceased going to Dr. Petin's, going towards town, at a distance (as shown by witness Baker) of 410 paces from where deceased was found dying. Met a man on a dark horse, who, presenting a pistol, demanded money of witness, who offered a pocket knife,—all he had. Assailant rode off with a yell. Identified defendant as party who held him up. Had never seen defendant before the attempted robbery. It was after sundown, but not dark. After leaving defendant, witness walked (as shown by witness Baker) 210 steps, and heard a shot. “Came on to town.” Defendant rode off from witness in a walk. Philipine Durier saw deceased pass his house towards that of Dr. Petin, about half past 6. Afterwards heard a shot. Heard nor saw any one else except witness Baker. Ramona Rodriguez de Valencia heard a shot about half past 6 or 7, and heard a wagon running. Deceased was brought into her house. Domingo Rodriguez, husband of last witness, returned from Mesilla, and his wife told him she had heard a shot, and a wagon running. He heard some one groaning in the street, near his house, went out, recognized deceased, and went for Samuel Steel, Sr., and the deceased was carried into his (witness') house, (where he died.) W. E. Baker had been on road past Dr. Petin's house. Coming back, at some distance beyond Petin's, saw a man on dark horse, about 150 to 175 feet distant from the road, riding out of the road. Saw deceased's body on side of the road, opposite witness Rodriguez's house, but thought it was a drunken man. Afterwards (during trial) measured distances as shown in note of Rivera's testimony, and also trailed horse track of rider he had seen from a point on the road, in a half circle, back to the road. Thomas A. J. Fountain, helped to arrest defendant at the camp five miles from Las Cruces, west of Mesilla, and across the river. Arrest made early on morning of 10th. Defendant feeding his horses. Defendant denied having pistol, and witness found the 38-caliber pistol in the “mess chest,” etc. Robert P. Boone, foreman of the men who were “rounding up” cattle on west of river near Mesilla, and for whom defendant was working, testified that defendant left camp about noon for Las Cruces, riding a bay horse, and returned between 8 and 9 o'clock in the evening. Nothing unusual or excited in his manner. Talked with the boys for a few minutes, and went to bed. I. J. Hall, C. M. Foraker, Al. Hardin and Perry Williams, for defense, had known defendant in Grant county, each for a term of two to nine years. Was of good character. Perry Williams knew that defendant could not speak Spanish language, and defense offered to prove by witness that witness Rivera told him that the man who “held him up” carried on the full conversation in the Spanish language. Phoebus Campus, deputy sheriff, contradicts witness Fountain in unimportant details, and says that Anselmo Melendez, another deputy, found the 38-caliber pistol in a pigeon hole in the top of mess chest, and not hidden. Defendant testifies that he was in Las Cruces, gambling. Was with witness Saens. Spoke to negro Frank, whom he knew, and asked for money, but it was a joke; and nothing thought of it. Left Las Cruces about 6 o'clock. Went towards railroad, and to Mesilla. Saw one or two persons on or near road. Did not see nor “hold up” witness Rivera. Did not see deceased. Did not know him. Was a stranger in Las Cruces. Did not speak Spanish language. Did not fire off pistol at all on the 9th. Arrived in camp about 8 or 9 o'clock. Went to bed after “talking with the boys,” and was arrested while feeding the horses on morning of 10th. Witness Williams was not allowed to testify as to what Rivera told him.

No objections or exceptions are shown to testimony for prosecution, but this is waived here by solicitor general for the territory. After prosecution had closed, defendant arose in open court, and asked that additional counsel be assigned him. This was promptly done; R. L. Young being assigned to assist William Breeden, defendant's counsel. The jury returned a verdict of guilty, and a motion for a new trial was at once made, assigning usual grounds, and also separation of jury during trial, prejudice and ill feeling of citizens, rendering fair trial impossible; that defendant did not have a fair trial, and was prevented from asking change of venue because of fear of violence at hands of citizens; newly-discovered evidence; refusal to admit testimony to rebut witness Rivera's evidence; error in allowing defendant to be brought into court manacled, and to be surrounded at all times by a large body of armed men during trial, etc. Motion was overruled, and defendant sentenced to hang. Exception to overruling motion for new trial was taken, and case appealed.

Errors assigned and relied on here are practically embraced in that setting up the refusal of the court to grant a new trial. In support of this motion the defense and prosecution offered counter affidavits as to separation of jury, and we think it was affirmatively shown that defendant was not prejudiced by such separation, which appears to have been necessary. Defendant also offered to prove by Daniel M. Reade, upon new trial, that he, Reade, on evening of killing, at about 6 o'clock, saw a Mexican boy with a rifle, about 100 yards from where deceased was found; and, coming back to Las Cruces at about 7 o'clock, heard a shot at or near said place. Defendant also offered affidavit of W. R. Fall, showing that feeling against defendant was so intense in Las Cruces that it was impossible, in opinion of affiant, for defendant to have had a fair trial by an impartial jury. William Breeden, counsel for defendant, made affidavit that he was called before a citizens' meeting, and told that they “would see that defendant had a fair trial, but that no continuance or change of venue must be had;” that he did not ask for a continuance or change of venue because of fear of violence to his client at the hands of the citizens; and the court, in passing on the motion and affidavits. says: “That feeling, that excitement [of the citizens] was unquestionably sufficient at the time this person went to trial to grant a change of venue under our law, and I don't believe that there is a judge upon the bench, not even the judge of this court, who is interested because of relationship, [with deceased,] who would for a moment have hesitated to have given that change *** In my judgment, that opinion [as expressed within affidavit of W. R. Fall] was well taken and given.”

It now becomes our duty, upon a full examination of the case and the law applicable thereto, to say whether the court, in the exercise of its discretion, erred in refusing a new trial. U. S. v. Lewis, 2 N. M. 463. And let us remember that “the full protection and privileges of the law should be given to all men, and certainly should not be withheld from the weak, the poor, and the humble. The most hardened criminal, although we may believe him to be most guilty, has the same rights and privileges with us as the most innocent. If the defendant is guilty, he should be...