State v. Beal.

• Decision Date: 14 February 1944
• Docket Number: No. 4790.,4790.
• Citation: 48 N.M. 84,146 P.2d 175
• Parties: STATEv.BEAL.
• Court: New Mexico Supreme Court

48 N.M. 84

146 P.2d 175

STATE

v.BEAL.

No. 4790.

Supreme Court of New Mexico.

Feb. 14, 1944.

Appeal from District Court, Chaves County; James B. McGhee, Judge.

Charlie Beal was convicted of murder, and he appeals.

Reversed with instructions.

In determining whether exhibits were sent to jury room after jury retired to deliberate on verdict, without knowledge of accused's counsel, Supreme Court must consider the case upon the record made, and not upon the memory of those present at the trial. 1941 Comp. § 19-823.

G. L. Reese, Sr., of Roswell, for appellant.

Edward P. Chase, Atty. Gen., and C. C. McCulloh, Asst. Atty. Gen., for appellee.

THREET, Justice.

Appellant was tried and convicted upon an information charging him with the murder of Stanley Brown. As a result of the verdict, he was sentenced to death. An appeal is prosecuted to this court, assigning numerous errors. They will be considered here, so far as is necessary, in the order presented in appellant's brief.

The first assignment of error is as follows:

The district court erred in overruling appellant's motion to set aside the verdict of the jury and grant a new trial in the cause upon the following grounds:

a. Because the trial judge, after the jury had retired to deliberate upon its verdict, and without the knowledge or consent of the appellant or his counsel, sent to the jury room the following state's exhibits in evidence in the cause, to wit:

b. The map or plat of the scene of the homicide, identified as state's exhibit 1.

c. The piece of pipe, identified as state's exhibit 2.

d. The pistol with which the deceased was shot, and the holster for same, identified as state's exhibit 3.

e. Five cartridges and shells in an envelope, identified as state's exhibit 4. All exhibits were received in evidence.

f. Articles of clothing consisting of bib overalls and jumper, worn by defendant at the time of his arrest, and a pair of gloves in defendant's possession at that time, and identified as state's exhibit 5. The last named exhibit was never offered or received in evidence.

Appellant's argument, as to his first assignment of error, may be divided, for convenience, into three points, as follows:

1. The district court erred in sending to the jury room, after the jury had retired, the map or plat of the scene of the homicide, identified as state's exhibit 1; the piece of pipe, identified as state's exhibit 2; the pistol, with which the deceased was shot, and the holster for same, identified as state's exhibit 3, and the cartridges, identified as state's exhibit No. 4.

2. That the sending of the exhibits to the jury room by the court, after the jury had retired to deliberate on its verdict, without the knowledge or consent of appellant, or his counsel, was a communication between the court and the jury prohibited by law.

3. It was error for the jury to receive into the jury room during its deliberation the articles of clothing not in evidence, worn by appellant at the time of the homicide.

Under point one of the first assignment of error, appellant contends that it was prejudicial error for the court to permit the jury to receive, in the jury room, while it was deliberating upon its verdict, state's exhibits one to four inclusive and cites as authority on this proposition 1941 Comp., Sec. 19-823; Territory v. Eagle, 15 N.M. 609, 110 P. 862, 30 L.R.A.,N.S., 391, Ann. Cas.1912C, 81; State v. Babcock, 22 N.M. 678, 167 P. 275, and State v. Lord, 42 N.M. 638, 84 P.2d 80. Appellant states that the decision in State v. Lord, supra, did not operate to extend the rule as announced by this court in Territory v. Eagle, supra, and State v. Babcock, supra, relative to the right of either litigant to have exhibits introduced in evidence, other than those mentioned in 1941 Comp., Sec. 19-823, to be taken and considered by the jury during its deliberation upon its verdict. That the extent of the rule in State v. Lord, supra, is that, while it was error to permit the confessions to be taken into the jury room, and be considered by the jury in its deliberation upon the verdict, the error was harmless and not prejudicial. That the rule there announced was applicable only to the facts in that case and did not extend or overrule the rule announced by this court in Territory v. Eagle, supra, and State v. Babcock, supra.

[1] The contention of appellee is to the effect that, since State v. Lord, supra, the rule in this State is that it is within the sound discretion of the trial court as to whether exhibits, introduced in evidence, other than those mentioned in 1941 Comp. Sec. 19-823, supra, shall be permitted to go to the jury room and be considered by the jury in the course of its deliberation upon the verdict. That when, in the exercise of its discretion, the trial court permits such exhibits to go to the jury room and be considered by it while deliberating upon the verdict, there is no error, unless appellant is able to show that the trial court abused its discretion and prejudice resulted to appellant therefrom. Whatever may be said as to the merits of the contentions advanced by appellant and appellee relative to the holding of State v. Lord, supra, for reasons hereinafter stated, we find it unnecessary to decide. We might say, in passing, that the sending of exhibits, other than those mentioned in the Statute, 1941 Comp. Sec. 19-823, supra, to the jury room to be considered by the jury during its deliberation, is a dangerous practice and should not be done, if at all, until the interested parties have had an ample opportunity to be heard upon the question.

The most serious question is to be found in point two of appellant's first assignment of error. Appellant asserts, in substance, in his motion for a new trial that after the jury retired to consider its verdict, without the knowledge or consent of appellant or his counsel, the official court reporter gathered up all exhibits identified and introduced as evidence, consisting of a map, state's exhibit 1, a piece of pipe, state's exhibit 2, a pistol and holster, state's exhibit 3, and five cartridges and shells, state's exhibit 4, and delivered them to the sheriff, who took them to the jury room to be used and considered by the jury while deliberating upon its verdict. The district attorney, who tried the case, in answer to the motion, admitted that the exhibits mentioned in appellant's motion were taken to the jury room and remained there while the jury was deliberating on its verdict, but denied that the presence of the exhibits in the jury room was prejudicial to appellant.

Upon the hearing of appellant's motion to set aside the verdict and for a new trial, appellant's counsel offered himself as a witness and after being duly sworn, testified in support of motion, among other things, as follows: “I would like to further state that, as attorney for the defendant, I had no notice or knowledge that the exhibits reached the jury room until a day or two after the verdict of the jury was returned.”

During the hearing upon the motion for a new trial, a colloquy arose between the court and counsel for the appellant as to how these exhibits reached the jury room. The court, premising its statement on its recollection of what the record would show, stated: “As the jury was retiring, I instructed the reporter to deliver to the jury the exhibits which had been introduced in evidence and, if any exhibits were admitted to the jury that had not been introduced, it was through the inadvertence of the reporter. A complete stenographic record was kept of the proceedings of the trial, with the exception of the arguments, and any admissions in the trial and the remarks made to the court shall be hereafter set out. As to the instructions and any admissions or objections will appear in the court reporter's transcript.”

Appellant's counsel stated that he did not hear the court tell the reporter to get the exhibits or what instructions, if any, the court gave the court reporter but, if he had known anything about such a proceeding, he would have interposed an objection in behalf of his client.

[2] The veracity of neither court nor counsel is here involved. It is purely a matter of correctly recalling what transpired, yet so grave a case as this may not be decided upon the memory of those present at the trial. We are bound to consider the case, as presented here, upon the record made in the trial of the case.

The question of the court's communication with the jury, after it had retired to deliberate upon its verdict, was before this court in State v. Costales, 37 N.M. 115, 19 P.2d 189, 191, wherein it is said:

“*** ‘No record was made of the incident or any exception taken, and the Court considered it quite harmless at the time. ***’

“The high character of the trial judge is an adequate guaranty against any conscious act of unfairness, but his suggestion that the absence of a record would be a sufficient answer to the point is potent in its persuasiveness of the soundness of the doctrine that the place for the judge is on the bench when he communicates with the jury, in order that there may be a record, and for the other good reasons pointed out in State v. Hunt, 26 N.M. 160, 189 P. 1111, 1115.”

It will be noted that the trial judge, in commenting on what had taken place when the exhibits were sent to the jury room, intimated that the record would reveal that the exhibits were ordered delivered to the jury in open court and in the presence of appellant and his counsel, but upon an examination of the record, we find it silent upon this point. The fact that the trial judge instructed the court reporter to deliver the exhibits to the jury in open court, and in the presence of appellant and his counsel, and with their knowledge, is a matter in dispute between counsel for appellant and the trial judge. Since we are bound to consider this case upon the record as presented here, and in the absence of a showing to the...