State v. Burkett.
| Decision Date | 17 March 1925 |
| Docket Number | No. 2865.,2865. |
| Citation | 234 P. 681,30 N.M. 382 |
| Parties | STATEv.BURKETT. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The jury commission having been ordered to place 150 names in the box, the minimum under section 8, chapter 93, Laws of 1917, included 4 persons disqualified under section 19, having served as jurors within 12 months. On challenge to the array, it was shown that the commission, in selecting the names, had a list of male voters as required by section 1, chapter 3, Laws of 1921, and also a list of those who had served within 12 months, including the 4 in question, and that the names, as called from the former list, were checked on the latter. Held, that the challenge was properly overruled, the evidence not showing that the 4 in question were known to the jury commission to be disqualified.
An opinion, not clearly shown to be based on more than mere rumor, does not disqualify a juror if he unequivocally states that he can lay it aside and commence the trial with his mind unprejudiced.
It is within the discretion of the trial court to impose a reasonable limit on the number of witnesses to the good reputation of the accused. Where the accused sought to establish a good reputation, both in New Mexico and in Texas, it was not an abuse of discretion to limit the number of witnesses to 7; the court having announced the limit after the third of such witnesses had testified.
If the jury is otherwise correctly instructed as to the effect of evidence of the good character of the accused, it is not error to refuse to instruct that such evidence is sometimes sufficient to create a reasonable doubt as to the guilt of the defendant, when otherwise none would exist.
The jury as a whole having been correctly instructed as to reasonable doubt, instructions properly refused which were calculated to impress on each juror his duty in this respect without regard to the conclusions reached by the others. State v. Corral, 27 N. M. 535, 203 P. 533, followed.
The jury having been correctly instructed on unlawful homicide and on self-defense, it is not error to refuse to instruct that, if the elements of self-defense are found present, a design to kill, entertained prior to firing the fatal shot, would not be unlawful, nor to refuse to instruct that, even though one have express malice, he is not guilty if he acts in self-defense.
No error in refusal of instructions sufficiently covered by general charge.
A tendered instruction properly refused, to the effect that one whose life has been threatened, or against whom threats of serious bodily harm have been made, may lawfully arm himself for defensive purposes; the tendered instruction omitting the essential element of reasonable apprehension aroused by such threats.
Where by the instructions given the right of self-defense is limited by submission of the issue of provocation of difficulty, there being evidence of communicated threats and that the accused armed himself because of such threats, in anticipation of attack, and solely for self-defense, it is error to refuse to instruct that one having reasonable grounds to anticipate an unlawful attack endangering life or limb has a right to arm himself for the purpose of resisting such attack.
Appeal from District Court, De Baca County; Bratton, Judge.
Harvey Burkett was convicted of murder in the second degree, and he appeals. Reversed and remanded for new trial.
An opinion, not clearly shown to be based on more than mere rumor, does not disqualify a juror if he unequivocally states that he can lay it aside and commence the trial with his mind unprejudiced.
Keith W. Edwards, of Ft. Sumner, and Hall & McGhee, of Clovis, for appellant.
Milton J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.
For the killing of Ora Hall on February 6, 1922, appellant was convicted of murder in the second degree and received a sentence of from 40 to 50 years in the penitentiary.
The homicide occurred at a point some four or five miles west of Ricardo in De Baca county where the highway crosses the railroad right of way. The first news of the homicide was furnished by the appellant, who reported at Ricardo that he had had trouble with the deceased and had killed him. The body was found on the railroad right of way, lying on its face, almost parallel with the right of way fence, with the feet near the gatepost. Near the body was found a two-bladed pocketknife with the smaller blade open. On both hands were leather mittens with latchets fastened. The fatal wound was from a bullet entering in the center of the breast, about two inches below the collar bone. Its course was downward about 30 degrees, it severed the ascending aorta, and found exit on the right shoulder blade. Another bullet wound was found entering the outside of the left arm near the elbow and passing out lower down on the other side. If the left arm of the deceased had been held across his breast, both wounds might have resulted from the same shot.
Appellant and deceased had met in Ricardo on the day in question, appellant leaving first. Deceased was seen to overtake him a little west of Ricardo, and they then rode along together; both being on horseback. They were later seen riding together in apparent amity.
There was evidence showing the deceased had made threats against appellant, some of which were communicated, from which, if believed, appellant might reasonably have apprehended danger to his life or great bodily harm. He testified that because of these threats, and fearing that the deceased might attempt to carry them out, and just for his protection, he armed himself with the pistol with which he killed the deceased, and that he went to Ricardo not knowing that he would meet the deceased.
The substance of appellant's testimony touching the facts immediately surrounding the homicide is as follows: After the deceased had joined him, they rode together for two or three miles, conversing generally, when deceased broached the subject of appellant's fences being torn down; admitted that it was he who had done it; that he was paid to do it, and was going to do it; that money was what he was after, and he was going to have it. Appellant asked him to lay off and not bother his fences any more. At this point in the conversation they arrived at the crossing where deceased dismounted and opened the gate, and appellant rode through ahead. Appellant then dismounted to urinate, his horse being between him and the deceased. The horse swung around somewhat, and appellant saw the deceased coming toward him with an open knife in his hand, exclaiming, “Here is where I get you.” Appellant called on deceased to stop. Deceased continued to advance, and appellant fired two shots, upon which deceased staggered a few steps and fell. Appellant fired the shots because he believed his life was in danger.
[1] 1. Appellant's first ground for reversal is the overruling of his challenge to the array of the petit jury.
It appears that the court ordered 150 names placed in the box, the minimum prescribed by section 8, chapter 93, Laws of 1917. The jury commissioners listed and placed in the box 150 names, but 2 of these names were shown to represent the same person, and 4 of the persons listed were shown to have served as jurors within the preceding 12 months. The list, therefore, represented but 149 actual and 145 qualified persons. At a hearing upon the challenge these facts were shown, and, further, that the jury commission in making up its list had before it a list of male voters of the county furnished by the clerk pursuant to section 1, chapter 3, Laws of 1921, and a list of persons who had served as jurors within the preceding 12 months, including the four in question, and that as the names of the voters were called from the first mentioned list they were checked with the latter.
By section 9, chapter 93, Laws of 1917, it is provided that the commission “shall not knowingly place upon the list selected by them, the name of any person who is not believed by them to be qualified and liable for jury service.” By section 19 of the same chapter, it is provided:
“The name of no person shall be placed on any of the lists provided to be selected by the jury commission as jurors whose name has been drawn from the jury box and who actually served as a juror on the regular panel, or in case of a talesman who actually served in the trial of a case, in the court during the preceding twelve months, nor shall the name of any such person be placed upon any venire, if drawn from the box.”
Appellant's contention is stated as follows:
“It is our belief that the statute we have is mandatory in that the jury commission shall not select the names of persons known to them to be disqualified, and that in the present case, with the list furnished them by the clerk as by law provided, their knowledge of the disqualification of Miller, Ragland, Boweton, and Harrington cannot be denied.”
The facts above stated, upon which appellant bases his conclusion that the names of the 4 disqualified persons were knowingly included in the list and placed in the box, are not, in our opinion, sufficient to overcome the well-established presumption of faithful performance of official duty. The challenge was therefore properly overruled.
[2] 2. Appellant complains of the overruling of his challenge for cause directed at a juror who, on his voir dire, stated that from what he had heard about the case he had formed and then had an opinion which it would take some sworn evidence to remove. It was not shown that the juror had ever expressed an opinion. On examination by the court, he stated, unequivocally, that he could and would set that opinion aside at the beginning of the trial and go into the trial with his mind unprejudiced as between the state and the defendant. Under former decisions of this court, an opinion based on rumor or newspaper accounts does not disqualify a...
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State v. Bristol
... ... defendant with the necessity of killing which arose after the ... deceased attacked the defendant ... It has ... been held that one may lawfully arm himself in reasonable ... anticipation of a dangerous attack. State v. Welch, ... 37 N.M. 549, 25 P.2d 211, 215; State v. Burkett, 30 ... N.M. 382, 234 P. 681 and authorities cited. To do so may, of ... course, have a tendency to show the state of mind of the ... defendant, although it has been held that the mere fact of ... arming does not justify the ... [84 P.2d 762] ... inference that this was done for the ... ...
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State v. Myers
...as a factor in determining proximate cause. (a) The defendant cites State v. McKnight, 21 N.M. 14, 153 P. 76 (1915), and State v. Burkett, 30 N.M. 382, 234 P. 681 (1925), for the proposition that he was entitled to instructions on the relevance of character evidence if there were evidence i......
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State v. Robinson
...It has apparently been a common practice to instruct the jury on the defendant's good character. See, e. g., State v. Burkett, 30 N.M. 382, 234 P. 681 (1925). See generally, Annot., 60 A.L.R. 1068 (1930). The committee, however, believed that this instruction invaded the province of the jur......
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