State v. Bailey.

• Decision Date: 14 January 1921
• Docket Number: No. 2424.,2424.
• Parties: STATEv.BAILEY.
• Court: New Mexico Supreme Court

27 N.M. 145

198 P. 529

STATE

v.BAILEY.

No. 2424.

Supreme Court of New Mexico.

Jan. 14, 1921.Rehearing Denied June 20, 1921.

Syllabus by the Court.

Appellant cannot predicate error upon the action of the trial court in improperly overruling his challenge to a juryman, when at the final impaneling of the jury he had not exhausted his peremptory challenges and the objectionable juryman was not forced upon him.

Evidence of threats is admissible in a case of homicide, although no one is definitely designated.

The reputation of the deceased as a man of peaceable character is competent evidence on behalf of the prosecution after such character has been attacked and put in evidence by the defense.

Proof of a witness' particular overt acts of wrongdoing is ordinarily relevant as impeaching evidence. The extent of such examination rests largely in the discretion of the trial court.

Where instructions given are correct and cover the same ground as those requested, or where those requested incorrectly state the law as applicable to the case, the instructions requested are properly refused.

Syllabus by Editorial Staff.

In a prosecution for murder, an instruction held fully to cover the defense of accidental discharge of the gun in defendant's hands thereby killing deceased.

In a prosecution for murder, where the defense of accidental killing was interposed, an instruction that if the jury believed that deceased was accidentally killed, or if they entertained a reasonable doubt thereon, they should acquit, held correctly refused, as not including all necessary elements.

In a prosecution for murder, where the defense of accidental killing was interposed, an instruction in the exact language of Code 1915, § 1472, held properly refused, as being inapplicable and as being abstract.

In a prosecution for murder, an instruction held not prejudicially erroneous, although confusing the doctrine of self–defense and the doctrine of defense of habitation.

An instruction not excepted to need not be considered on appeal.

Appeal from District Court, Grant County; R. R. Ryan, Judge.

Sylvester E. Bailey was convicted of murder in the first degree, and he appeals. Affirmed.

Proof of a witness' particular overt acts of wrongdoing is ordinarily relevant as impeaching evidence. The extent of such examination rests largely in the discretion of the trial court.

K. K. Scott, of Breckenridge, Tex., and Alvan N. White, of Silver City, for appellant.

O. O. Askren, Atty. Gen., and H. S. Bowman, Asst. Atty. Gen., for the State.

RAYNOLDS, J.

The appellant, Sylvester E. Bailey, was indicted at the March, 1919, term of the district court for Grant county, N. M., for the killing of one James N. Bedore, and a verdict of murder in the first degree was returned by the jury. Appellant filed a motion for a new trial, which was overruled and the appellant sentenced to be executed Friday, April 25, 1919. From the verdict and sentence appeal is taken to this court.

At the time of the homicide in question, the appellant was a prospector and miner living on his mining claim at a place called Vanadium, situated near Silver City in Grant county. On the mining claim were a store building, a small adobe residence, and an automobile garage. Appellant had rented his store to one L. E. Freeland. Freeland had rented the dwelling at the direction of appellant during his absence to the deceased, Bedore, for a period of three months ending September, 1918. Upon appellant's return to his claim he occupied a part of a box car which had been used by the railroad as a temporary depot. While appellant was waiting for the possession of his property, the deceased, Bedore, had turned over his dwelling to one Rose Freeland, who was then occupying it. Appellant notified the deceased and Rose Freeland that he desired possession of his dwelling on September 1, 1918. Deceased, Bedore, shortly after September 1st had tendered to the appellant another month's rent and appellant had refused to accept it. There was testimony to show that on the morning of the killing the deceased had stated that he was about to move from the premises of the appellant on that day, and that he had made arrangements with one of the witnesses to secure a team to move his belongings from said premises.

The appellant in his testimony, and by the testimony of other witnesses, attempted to show that the gun from which the fatal shot was fired was discharged by accident in a struggle between him and the deceased, after the appellant had taken the gun from under his pillow and used it as a club to drive off the deceased who was about to attack him in his room. Upon examination of the body of the deceased, it was found he was shot in the abdomen, about two inches below the breastbone and a half inch to the right of the median line, and there was no point of exit. The shirt and underclothes had holes in them and were powder burned. There were no eyewitnesses to the homicide, and the deceased made no statement, living only a few minutes after he fell.

Appellant assigns errors as follows:

1. The court erred in sustaining the two challenges made by the state to certain jurymen in overruling the challenges made by the appellant to two others in regard to their qualifications. Upon this assignment the law is well settled in this state.

“We are of the opinion that Mr. Thompson correctly states the general rule regarding the discretion of the court in respect to impaneling the jury as follows: ‘In the superintendence of the process of impaneling the jury, a large discretion is necessarily confided to the judge, which discretion will not be revised on error or appeal, unless it appears to have been grossly abused or exercised contrary to law.’ 1 Thompson, Trials, § 88.” Territory v. Lynch, 18 N. M. 15, at page 28, 133 Pac. 405, at page 407.

“Assuming that the trial court excused this juror without cause, nevertheless we do not consider that appellant has ground for complaint. In 1 Thompson on Trials, § 43, the author, after pointing to the fact that the right of peremptory challenge is a right to reject, and not a right to select, says:

‘Therefore, a party cannot, in general, complain that the court has excused jurors without cause, or sustained untenable challenges of the other party, thus driving the objecting party to exhaust his peremptory challenges upon other members of the panel, or upon special veniremen or talesmen.’ See, also, 24 Cyc. 315; 16 R. C. L. 291.

Mr. Thompson, at section 120, more completely states the rule in the following language:

‘No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the court upon insufficient grounds, unless through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created.’

We adopt this statement of the law, which is undoubtedly conclusive upon the assignment under consideration, in which, therefore, we find no merit.”

State v. Rodriguez, 23 N. M. 156, at pages 164, 165, 167 Pac. 426, at page 428 (L. R. A. 1918A, 1016).

[1] In the present case it also appears that the defense had not exhausted its peremptory challenges when the jury was finally impaneled, and the action of the court is not error, for this as well as the foregoing reasons:

“The weight of authority is to the effect that, when a challenge for cause to a juror is improperly overruled, the error will be regarded as immaterial and without prejudice, if the objecting party did not challenge the juror peremptorily and his peremptory challenges were not exhausted; this upon the theory that a party must use all available means to exclude all objectionable jurors, and that a failure to do so constituted a waiver of his objection. 24 Cyc. 323, 324. We agree with the majority rule. This being true, it is our duty to assume that appellant was not harmed by the failure to sustain his challenge for cause.” State v. Smith, 24 N. M. 405, at page 408, 174 Pac. 740, at page 741.

“It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges. [Citing cases.]” Colbert v. Journal Pub. Co., 19 N. M. 156, at page 160, 142 Pac. 146, at page 147.

“Finally it is a rule of paramount importance that errors committed in the overruling of challenges for cause are not grounds for reversal, unless it be shown an objectionable juror was forced upon the challenging party after he had exhausted his peremptory challenges. If his peremptory challenges remain unexhausted so that he might exclude the objectionable juror by that means, he has no ground for complaint.” 1 Thompson on Trials, § 68, p. 147.

See, also, People v. Duerant, 116 Cal. 179, 48 Pac. 75, at page 78.

[2] (2) The court erred in admitting evidence of the alleged statement not amounting to a threat, highly prejudicial to appellant. The statement or threat was as follows:

“He said he would protect his ground if he couldn't by law, he would with his gun. He had done it and he could do it again.”

Standing alone such an indefinite statement might be objectionable as a threat, but with other evidence of the relationship between the parties and the circumstances of the case, it is clearly a threat and properly admitted.

“One of the errors assigned by the defendant is that the evidence of a threat made by him to shoot a person whom he did not name, was admitted. There was, besides the language of the threat itself, evidence that the defendant had...