State v. Archuleta

• Decision Date: 01 May 1923
• Docket Number: No. 2705.,2705.
• Citation: 217 P. 619,29 N.M. 25
• Parties: STATEv.ARCHULETA ET AL.
• Court: New Mexico Supreme Court

29 N.M. 25

217 P. 619

STATE

v.ARCHULETA ET AL.

No. 2705.

Supreme Court of New Mexico.

May 1, 1923.Rehearing Denied Aug. 29, 1923.

Syllabus by the Court.

In a prosecution for perjury, a reporter who took the evidence in the former trial, where the perjury was committed, may be allowed to read such portions of the evidence as may be necessary to support the assignments of perjury. The defendant may not require the state to put in all of the evidence given on the former trial, nor may he, on cross–examination of the reporter, require him to read all of the testimony, if objected to as not proper cross–examination. He may, of course, introduce the remainder of the testimony as a part of his case.

In a prosecution for perjury, a variance between the allegation and the proof, in that the allegation is that the perjury was committed in the former prosecution against the defendants, while the proof shows that the former prosecution was against the defendants and one other person, is an immaterial variance, and may be disregarded.

A communication between an attorney and two or more clients, who have a common interest, is privileged as to all of the clients, in subsequent litigations between third persons and any one of the clients.

The cross–examination of the witnesses is properly limited to the scope of his direct examination.

It is not necessary that warning be given an accused under arrest that his extrajudicial confession may be used against him, in order to render the same admissible.

The general rule is that an acquittal of the defendant on a criminal prosecution is not a bar to a subsequent prosecution for perjury, committed in his testimony in the former prosecution.

Appeal from District Court, Mora County; Lehy, Judge.

Avelino Archuleta and others were convicted of perjury, and they appeal. Affirmed.

The right to cross-examine is limited to matters stated by the witness in his direct examination.

E. P. Davies and C. J. Roberts, both of Santa Fé, for appellants.

M. J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.

PARKER, C. J.

The appellants had been tried for murder and were acquitted. They were sworn and testified in their own behalf, and all told practically the same story. After the acquittal they were separately indicted for perjury committed in the murder case, and were convicted and sentenced, and have appealed from the judgment.

[1] 1. Upon the trial in this case the court reporter, who took the testimony in the murder case, was put upon the stand and testified as to the evidence given by the defendants on that trial. He read from a transcript of his stenographic notes, by consent of all parties, portions of the testimony given by each of the defendants in support of the assignments of perjury charged in the indictments in this case. Upon cross–examination of the court reporter, counsel for appellants sought to compel the state to put in all of the testimony of the appellants given on the murder trial, or, in the alternative, to allow the appellants to put in such evidence by way of cross–examination of the witness for the state. The application to compel the state to put in all of the testimony of the appellants was denied by the court, and the counsel for the state objected to such statements being shown on cross–examination, for the reason that the state had introduced only that portion of the testimony relevant to the assignments of perjury in the indictments, and that the evidence proposed to be introduced would not be proper cross–examination. This objection was sustained by the court. When the appellants came to put in their case in defense, however, they failed to renew their offer to put in all of the testimony of the appellants in the murder case.

It is to be seen, therefore, that the question involved is a very narrow one, and is not one of the admissibility of the evidence in question, but is a question of the proper order of proof. The appellants were not denied the right to put in the proof when they came to make out their defense; they were simply denied the right to put in the proof as a part of the cross–examination of the official reporter. The rule in this jurisdiction is in accordance with the general trend of American authority, which is to the effect that the proper cross–examination of the witness shall be limited to the subject–matter and scope of his direct examination. State v. Rodriguez, 23 N. M. 156, 167 Pac. 426, L. R. A. 1918A, 1016. See, also, 28 R. C. L. “Witnesses,” § 194. When an examiner goes beyond the scope of the direct examination, he makes the witness his own. Whether the court will allow the examiner to thus make the witness his own during the progress of the development of the proof by the opposite party is a procedural question, resting, ordinarily, in the discretion of the trial judge, who has under all ordinary circumstances complete control over the order of proof. The rule to the effect that, when a part of a conversation, letter, or document is introduced by one party, the opposite party is entitled to have the whole conversation, letter, or document introduced, has, under the circumstances of this case, no application. In cases where such a question arises, the witness ordinarily undertakes to relate the whole conversation, or to produce a letter or a document. In such instances the witness is vouching for the whole matter as a single fact, and in such cases cross–examination would be proper under ordinary circumstances. In this instance, however, the witness did not purport to be giving all of the testimony of the appellants, but only such portions thereof as were necessary to furnish the foundation for the assignments of perjury. He merely read from a written transcript portions of the testimony. If other portions of the testimony explained or did away with the testimony which was related by the court reporter, the document was before the court for the use of defendants, and it was a matter to be brought forward when the case for the defendants was being put in. It follows that there is nothing in the contention of appellants upon this point. See 3 Wigmore, Ev. § 2103.

[2] 2. Counsel for appellants argue that there is a variance between the allegations of the indictment and the proof. It appears from the indictment in the murder case that the appellants and one additional defendant were charged with the murder, while in the indictment in this case the cause is described as being an indictment against the four appellants, not naming the fifth defendant. This is plainly a variance, but in our view of the matter it is an immaterial variance. The object of the indictment is to advise the defendant of the nature and character of the charge against him, and to provide him immunity from a second prosecution arising out of the same state of facts. If this is accomplished, and the elements of the crime are substantially charged, it is all the defendant is entitled to. Here the allegation is that the appellants were charged with the murder of one Trujillo. This is literally true, and furnished the appellants with the information which they required to prepare and present their full defense. The fact that the fifth party was also charged with appellants is immaterial, and in no way affects the rights or impairs the ability of the appellants to make their defense. The judgment in this case is likewise a bar to any further prosecution, because the identity of the proceeding can be shown by parol, if necessary. We recently examined this question in State v. Lucero, 20 N. M. 55, 146 Pac. 407, and again in State v. Herrera, 28 N. M. 155, 207 Pac. 1085. While these cases are not exactly like this one upon the facts, the principles announced, especially in the former case, are controlling here.

[3] 3. A witness, Martinez, who had been jointly indicted with the appellants for the murder, and who had pleaded guilty, and who had thereafter testified for the state in the murder trial, testified in the present case to the alleged facts surrounding the killing, contradicting the evidence of the appellants in the murder trial, thereby laying the foundation for the assignments of perjury in this case. On cross–examination by counsel for appellants he was asked the following question:

“Q. I will ask you to state if it is not a fact that down there at the jail, the night that Mr. J. Leahy and Mr. Blas Sanchez were there, when these boys in your presence told you that they were going to tell the truth, that you fell into a rage, and tried to attack one of these defendants. Is not that true? A. No, sir.”

The appellants sought to impeach this witness by the following question propounded to Mr. J. Leahy:

“Q. I will ask you to state whether at that time, the defendants in this case made the statement, or some of them, that they were going to tell the truth about this case, and whether or not the witness, Leandro Martinez, thereupon flew into a rage and sought to attack one of these defendants?”

Objection was interposed by counsel for the state to the effect that the question called for impeaching evidence upon an immaterial matter, and upon the ground that the incident occurred, if it did occur, while the witness and the appellants were preparing for the defense in the murder case, and that the evidence, therefore, was within the privilege of confidential communications between attorney and client. The evidence was proposed by the appellants for the purpose of showing bias and feeling of the witness towards the appellants. Bias and prejudice of a witness towards one or more of the parties to a lawsuit are never collateral or immaterial issues. Bias and prejudice always reflect upon the credibility of a witness, and are susceptible of proof by a great variety of circumstances. In this case the evidence, if it...