State v. Cabodi.

• Decision Date: 10 January 1914
• Citation: 138 P. 262,18 N.M. 513
• Parties: STATEv.CABODI.
• Court: New Mexico Supreme Court

18 N.M. 513

138 P. 262

STATE

v.CABODI.

Supreme Court of New Mexico.

Jan. 10, 1914.

Syllabus by the Court.

Assuming the meaning to be plain, false grammar or wrong spelling will not render an indictment insufficient.

A question not jurisdictional cannot be raised the first time on appeal.

Where the name “Dewey Dimon” appears upon the roll of jurors impaneled to try a cause, and the verdict is signed “De Witt Dimon, Foreman,” and no objection to the variance is made in the trial court, the Supreme Court, on appeal, where the question is first raised, is warranted in assuming that no substitution in the personnel of the jury was made, and that Dewey Dimon named on the jury roll signed the verdict as De Witt Dimon.

Where a complaining party is aware at the time that the interpretation of the evidence by an interpreter is not correct, it is incumbent upon him to call the court's attention to such erroneous translation, and ask to have it corrected; and, where he has not such knowledge at the time, but afterwards becomes aware of the fact, he must set out all the facts in his motion for a new trial, pointing out therein specifically the evidence erroneously translated, and support such contention by affidavit or proof, so that the trial court can pass intelligently upon the question.

Under the provisions of section 14, art. 2, of the state Constitution, the defendant is entitled to have the testimony interpreted to him in a language which he understands. While such right cannot be denied a defendant, it is incumbent upon him to, in some appropriate manner, call the attention of the trial court to the fact that he does not understand the language in which the testimony is given.

The word “charge,” used in section 14, art. 2, of the state Constitution, in the clause “to have the charge and testimony interpreted to him in a language that he understands,” refers to the indictment or information, and not the instructions given to the jury by the court.

Appeal from District Court, McKinley County; Raynolds, Judge.

John Cabodi was convicted of murder in the first degree, and appeals. Affirmed.

Assuming the meaning to be plain, false grammar or wrong spelling will not render an indictment insufficient.

D. J. Thomas, of Gallup, for appellant.

Ira L. Grimshaw, Asst. Atty. Gen., for the State.

ROBERTS, C. J.

Appellant, John Cabodi, was convicted in the district court of McKinley county of murder in the first degree, and was sentenced to death. From the judgment, he appeals to this court, and presents five propositions upon which he relies for a reversal of the cause. The errors relied upon will be considered in the order presented.

[1] 1. The Session Laws of 1907 (Laws 1907, c. 36), as compiled and printed by the Secretary of the Territory, defines murder in the first degree as follows: “All murder which shall be perpetrated by means of poison or lying in wait, torture, or by any kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate any felony, or perpetrated from a deliberate and premeditated design unlawfully and maliciously to affect the death of any human being, or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life, shall be deemed murder in the first degree.”

In preparing the indictment in this case, the pleader used the word “effect” instead of the word “affect” found in the printed volume of the Session Laws. Because of this, appellant moved in arrest of judgment, which motion was overruled by the court. This ruling is presented as the first ground of error.

The enrolled copy of the act in the office of the Secretary of State uses the word “effect,” and this word also appears in the original bill. The word “effect,” was therefore properly used in the indictment. However, had the correct word been “affect,” the motion was not well taken, for, as stated in Bishop N. C. P. § 354: “Assuming the meaning to be plain, false grammar (or) wrong spelling * * * will severally not render the indictment insufficient.”

In the case of Smith v. Territory, 14 Okl. 162, 77 Pac. 187, the identical question arose. There the statute used the word “effect” and the indictment “affect” in charging murder in the first degree. The court say: “This was clearly a mistake of the pleader, a clerical error; and where a defect in an indictment is merely technical, and the indictment being sufficient in all other respects, we are unable to see how the substantial rights of the defendant are affected by such mistake.”

The motion in arrest of judgment was therefore properly overruled.

[2][3] 2. It is next contended that the verdict was returned by a person as foreman named De Witt Dimon, who was not a member of the panel jury trying the cause. The record shows that a man named Dewey Dimon was one of the jurors accepted to try the cause. The verdict of the jury was signed “De Witt Dimon, Foreman.” This question, however, was not raised in any manner in the court below. It does not go to the jurisdiction either of the person of the defendant or the subject of the prosecution. It has been uniformly held by the territorial Supreme Court that a question not jurisdictional cannot be raised the first time on appeal. U. S. v. Cook, 15 N. M. 127, 103 Pac. 305.

Had this question been called to the attention of the trial court, the signature of the foreman to the verdict could and would probably have been corrected. Appellant does not undertake to show that some unauthorized person was present and participated in the deliberations of the jury. Had such a showing been made, of course the verdict would be set aside by the trial court, or by this court on appeal. The only objection urged is that one of the jurors did not use the same Christian name as appeared upon the jury roll, when he signed the verdict as foreman. In the case of State v. Duffield, 49 W. Va. 274, 38 S. E. 577, a similar question arose. The record there showed that “Henry Hunt” was one of the jurors impaneled and sworn to try the cause. The verdict was signed “W. H. Hunt,” and the court held that the variance did...