State v. Anderson.

• Decision Date: 31 March 1918
• Docket Number: No. 2067.,2067.
• Parties: STATEv.ANDERSON.
• Court: New Mexico Supreme Court

24 N.M. 360

174 P. 215

STATE

v.ANDERSON.

No. 2067.

Supreme Court of New Mexico.

March 31, 1918.

Syllabus by the Court.

Propositions of law assigned, but not argued, are abandoned.

Juror, who has opinion as to guilt or innocence of party on trial, is competent, where such opinion was formed from rumor, newspaper reports, or street talk, and he swears that he will lay it aside and determine case upon the law and the evidence.

It is for the trial court, in the exercise of sound discretion, to determine whether a juror possesses sufficient intelligence and understanding to properly discharge his duties, and its decision thereon will be reviewed only to determine whether it has abused such discretion.

Law with reference to confessions, as stated in State v. Ascarate, 21 N. M. 191, 153 Pac. 1036, followed.

As a general rule, in order to reserve an available objection to exclusion of evidence, proper question must be asked, and, on sustaining objection thereto, an offer must be made, showing what evidence will be given if witness is permitted to answer, the purpose and object of testimony sought to be introduced, and facts necessary to establish its admissibility.

Instructions examined, and held that court did not invade the province of the jury by commenting on weight of evidence.

Appeal from District Court, Quay County; Leib, Judge.

Robert Lee Anderson was convicted of voluntary manslaughter, and he appeals. Affirmed.

Juror, who has opinion as to guilt or innocence of party on trial, is competent, where such opinion was formed from rumor, newspaper reports, or street talk, and he swears that he will lay it aside and determine case upon the law and the evidence.

W. L. Morris, of Albany, Tex., and H. H. McElroy, of Tucumcari, for appellant.

C. A. Hatch, Asst. Atty. Gen., for the State.

HANNA, C. J.

The appellant, Robert Lee Anderson, was convicted of voluntary manslaughter in the district court of Quay county, and sentenced to ten years' imprisonment in the penitentiary. From such conviction and sentence, appellant has perfected this appeal.

As no statement of the facts of the case appears in the brief of appellant, the following statement, appearing in brief of the state, will be taken as true:

“The deceased, George A. Zant, together with his family, consisting of his wife, Bertie Zant and seven children, moved from Stephens county, Tex., to about three miles southeast of Tucumcari, N. M., in June, 1916. Robert Lee Anderson, the appellant, a brother of Mrs. Zant, widow of deceased, also came to New Mexico some time after the Zant family had moved, and made his home with the Zants. The evidence discloses that on the night of August 29, 1916, the Zant household all retired as usual. Mrs. Zant states that she occupied one bed, the baby sleeping with her; the deceased occupied another bed in the same room, and the little boy, Clifford Zant, slept with him. The defendant occupied a bed on the back porch. About 4:30 a. m. the following morning, Mrs. Zant was awakened by a gunshot. She states she jumped right up, saw her husband was dead, and the bedclothes were on fire; they evidently having ignited from the gun shot. She immediately ran out of the room screaming and calling her brother, the defendant. She had to call him some two or three times before he would get up. Finally he arose and went in and put out the fire. It developed the deceased had been shot in the back of the head, evidently with his own gun, which had been standing in the corner of another room the night before. At the coroner's inquest it was determined that the deceased had met his death by his own hand. About the 8th or 9th of September, the witness, Harry Herron, was sent by the brother of the deceased, to Quay county, for the purpose of investigating the death of the deceased. In a conversation had with appellant, the latter admitted or confessed that he killed George A. Zant. Upon this confession being made, Herron telephoned the sheriff of Quay county, who came out to the farm. The defendant again admitted his guilt, and was thereupon taken to Tucumcari by the sheriff. At Tucumcari, a written statement was prepared and signed by the appellant, wherein he again confessed that he killed the deceased, giving as his reason a quarrel that had occurred between deceased and appellant some two or three years before.”

[1] 1. Propositions Nos. 23 and 24, in brief of appellant, are not argued, and consequently are abandoned and waived. This rule has so often been announced by us that citation of authority therein is unnecessary.

[2] 2. The first and fourth propositions urged by appellant go to the action of the trial court in refusing to sustain his challenge for cause in two instances. One juror stated on his voir dire that he had heard and read about the case and formed an opinion thereon, but that he would lay the same aside and try the appellant solely on the law and the evidence. The other stated that he had formed an opinion from “street talk” which he had heard, but that he would lay aside that opinion and try the case solely on the law and evidence, giving to appellant the full benefit of the law of reasonable doubt. In Territory v. Emilio, 14 N. M. 147, 89 Pac. 239, it was held that, where juror had an opinion as to defendant's guilt, formed from public rumor as to what facts in case purported to be, but that he could lay aside that opinion and try defendant on the law and evidence of the case, he was a competent juror. In State v. Rodriguez, 23 N. M. ___, 167 Pac. 426, L. R. A. 1918A, 1016, we held that a juror was competent to sit in case, where he had formed opinion from reading newspaper articles, he having stated that he would lay such opinion aside and try appellant solely on the law and evidence. The rule announced in those cases is decisive of the question presented here.

[3] 3. Appellant contends that the trial court erred in refusing to sustain his challenge for cause to the juror Felipe Cordova, because he did not possess sufficient intelligence to properly sit in the case, and because he stated he would not give the appellant the benefit of the presumption of innocence. Three simple questions were first asked this juror, and he made proper and intelligent answers thereto. He was then asked if he would return a verdict on the court's instructions and the evidence, and he answered “No.” An improper answer having been given to another question propounded to him, he was then asked:

“Q. If you are taken as a juror, and the court tells you that the law is so and so, and tells you that you must follow those instructions, will you do it? A. Yes.”

Appellant's counsel then propounded the following questions, and the juror made the following answers:

“Q. Now, Mr. Cordova, if after you have heard the facts in this case you should have a reasonable doubt as to whether the defendant is guilty, you would acquit him, would you not? A. No. Q. Do you understand my question? A. Yes.”

Counsel for appellant elected not to examine the juror further, although the court advised them to proceed. Appellant's exception was based upon the ground that the juror was unable to understand simple questions. In the first place the record does not indicate that the juror lacked intelligence sufficient to enable him to properly perform his duties as a juror. That juror would not acquit appellant, although he entertained a reasonable doubt of his guilt is not conclusive of his lack of intelligence, because it is not shown that the juror knew that the law entitles a defendant in a criminal case to an acquittal under such circumstances. Under the circumstances it was the duty of counsel for appellant to further examine the juror and to develop, if he could, the fact that the juror would not acquit appellant under such circumstances, knowing the law on the subject. The proposition, however, is decided upon the rule that it is for the trial court, in the...