State v. Burrus., 3952.

• Decision Date: 24 April 1934
• Docket Number: No. 3952.,3952.
• Citation: 35 P.2d 285,38 N.M. 462
• Parties: STATEv.BURRUS.
• Court: New Mexico Supreme Court

38 N.M. 462

35 P.2d 285

STATE

v.BURRUS.

No. 3952.

Supreme Court of New Mexico.

April 24, 1934.Rehearing Denied Aug. 13, 1934.

Appeal from District Court, Santa Fé County; Otero, Judge.

Robert E. Burrus was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Cross-examination relating to matter brought out by defense in murder prosecution, held proper.

C. C. Catron, John J. Kenney and Earl D. Kenney, all of Santa Fé, for appellant.

E. K. Neumann, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

HUDSPETH, Justice.

Appellant was convicted of voluntary manslaughter for the shooting of Apolonio Pino, and sentenced to a term in the penitentiary of not less than nine, nor more than ten, years. From his conviction and sentence he prosecutes this appeal.

On Sunday afternoon, March 12, 1933, defendant, Robert Burrus, a member of the police force of the city of Santa Fé, went to the “Esquibal Place,” a so-called “bootleg joint” on Read street in Santa Fé, for a glass of beer. He had been sitting in the kitchen of the house, drinking beer with a group of people for an hour or so, when the deceased, city marshal, followed by George Romero of the police force, entered the house, went into the kitchen and over to where defendant was sitting, and demanded of defendant that he give up his policeman's badge. Burrus said something to the effect that, “I never saw any Mexican son of a bitch that could take the badge away from me,” and deceased attempted to grab the badge from defendant's coat. With this, Burrus jumped up from his chair, and both he and deceased drew guns. Romero grabbed hold of Burrus, and deceased then backed out of the kitchen and disappeared. A few moments later Romero released Burrus, and the latter left the room, went out into the patio, re-entered the house in search of Pino, and, passing the toilet, where Pino had hidden, stopped, kicked on the toilet door, and demanded of Pino that he come out. At this point the shooting commenced. The evidence is conflicting as to who fired the first shot. Six shots were fired through the toilet door by Pino and three by Burrus before Pino was struck by the bullet from defendant's gun from which he died three days later.

Appellant, arrested for the shooting that evening, was released on bail after a preliminary hearing held on March 21st. An amended criminal information, charging murder in the first degree, was filed on April 3d, and on the same day defendant moved for a continuance. Defendant's motion for a continuance was overruled, and the case was set for trial for April 10th.

[1] The first point relied upon by appellant for reversal is that the trial court erred in overruling his motion for a continuance of the case until the September term of the court. The grounds upon which the motion was based were that there was not sufficient time for counsel to prepare defendant's case for trial on April 10th, and that, because of certain newspaper accounts and editorials relating to the recent shooting, public sentiment in Santa Fé county, where defendant had for years resided, and where he desired to be tried, was then hostile towards him. We have carefully examined the record and the exhibits relating to the motion, and are unable to agree with counsel that the record shows anything which would justify us in holding that the trial court abused its discretion in denying defendant's motion. As to the first ground upon which the motion was based, see Territory v. Price, 14 N. M. 262, 91 P. 733; State v. Renner, 34 N. M. 154, 279 P. 66; State v. Romero, 34 N. M. 494, 285 P. 497. As to the second ground, if prejudice did, in fact, exist against the defendant in Santa Fé county, a change of venue might have been obtained. No such application was made, however. What the state of public sentiment might be the following September was a matter of pure speculation which the trial court was not bound to indulge in.

[2][3] Appellant's next contention is that the trial court erred in overruling his challenge for cause of the juror Frank Tapia. After the overruling of defendant's challenge, made upon the ground that Tapia was biased and prejudiced in favor of the deceased, defendant exercised a peremptory challenge upon him. After eleven jurors had been chosen and defendant had used up his twelve peremptory challenges, the juror Romero was called. Defendant requested the court's permission to exercise an additional peremptory challenge upon Romero, but such additional challenge was refused. Appellant argues that the alleged error of the trial court thus prejudiced him in depriving him of one of the peremptory challenges to which, under section 78-132 of the 1929 Comp. St., he was entitled. The Attorney General urges that defendant cannot here avail himself of the alleged deprivation of one of his peremptory challenges, since it is not shown that the juror Romero, who was not challenged for cause after the refusal to allow the exercise of a peremptory challenge upon him, was legally disqualified, or that he was not fair and impartial. This point we are not called upon to decide, since we are of the opinion that the court's overruling of defendant's challenge for cause of the juror Tapia was not erroneous. There is nothing in the record of the voir dire examination of Tapia which indicates that Tapia, who was a friend and neighbor of the deceased, and who, upon questioning by counsel for the defense, admitted to a natural feeling of sympathy toward the deceased and his family, was in any way prejudiced against the defendant, or that he was not of a mind to render a verdict according to the evidence. True, under skillful questioning by counsel, he at one point in his examination admitted to bias, but subsequent questioning by the court brought out the fact that he had not understood the meaning of the word “bias.” When the meaning of the word was fully explained to him, he denied having such feeling. The trial court is necessarily invested with a wide discretion in the superintendence of the process of impaneling the jury. Territory v. Lynch, 18 N. M. 15, 133 P. 405. See, also, State v. Anderson, 24 N. M. 360, 174 P. 215. A careful reading of the searching voir dire to which Tapia was subjected fails to convince us of an abuse of discretion on the part of the trial court in overruling defendant's challenge for cause.

[4] The third point relied upon by appellant for reversal is that the trial court erred in refusing to grant a new trial because of the alleged attempt by one of the bailiffs to intimidate the juror Taribio Rodriguez.

In his motion for a new trial, defendant alleged that the bailiff Seferino Alarid had followed the juror Rodriguez into the toilet before the verdict was rendered and had told him to “go for Pino.” There was a sharp conflict in the testimony of the witnesses who testified at the hearing ordered by the court for the investigation of the allegations of the motion, and, at the conclusion thereof, the trial court found that the alleged statement was never in fact made, and that “the alleged charge of tampering or attempting to influence the said juror Taribio Rodriguez by the said bailiff Seferino Alarid is without foundation in fact.” The trial court's finding, being supported by substantial evidence, cannot be disturbed by this court. Appellant's third point is therefore overruled.

[5] Appellant's fourth point is directed to the alleged error of the trial court in limiting the cross-examination of the state's witness, Charles Fahy. The state had brought out on direct examination that the city marshal was invested with the power, under section 86 of the code of ordinances of the city of Santa Fé, 1930, to suspend a policeman temporarily. On cross-examination appellant sought to question the witness as to whether he knew of any ordinance which gave the marshal the right to make an assault upon a police officer or to “take the star off an officer by tearing it out of his coat.” Whether or not the refusal of the court to permit these questions was correct we need not pass upon, being of the opinion that the error, if error there was, was not prejudicial to the defendant, and was cured when the trial court instructed the jury: “*** That the deceased, Apolonio Pino, had no right by virtue of his office to remove from the person of the defendant by force the defendant's insignia of office, his police badge, and, if you find from the evidence that the deceased Apolonio Pino attempted by force to remove from the person of defendant the defendant's insignia of office, his police badge, then the deceased committed an unlawful assault upon the defendant by so doing.”

[6][7] In his sixth point appellant contends that the trial court permitted the state too great a latitude in its cross-examination of him. The extent to which cross-examination will be permitted is a matter resting largely in the discretion of the trial court. State v. Carter, 21 N. M. 166, 153 P. 271; State v. Cruz, 34 N. M. 507, 285 P. 500; State v. Roybal, 33 N. M. 540, 273 P. 919; State v. Martinez, 34 N. M. 112, 278 P. 210; State v. Stewart, 34 N. M. 65, 277 P. 22. The record indicates that the questions objected to were germane to matter which had been brought up by the defense itself and in rebuttal of inferences which might be drawn therefrom. Reversible error cannot therefore be predicated upon their allowance.

[8] Appellant's last point alleges prejudicial error in the refusal of the court to give defendant's requested instruction No. 3. The contention is that the requested instruction was necessary to clarify a question raised by the trial court's charge as to whether the defendant had the burden of proving beyond a reasonable doubt the issue of self-defense. A careful perusal of the instructions given, and to which appellant interposed no objections, convinces us that this contention is without merit. The court charged the jury that the...