State v. Calhoun

• Decision Date: 26 December 1917
• Docket Number: 1991.
• Parties: STATE v. CALHOUN.
• Court: New Mexico Supreme Court

170 P. 750

23 N.M. 681, 1917 -NMSC- 090

STATE v. CALHOUN.

No. 1991.

Supreme Court of New Mexico

December 26, 1917

Rehearing Denied Feb. 23, 1918.

Syllabus by the Court.

Applications for continuance may be amended but once, with the consent of the court. The action of the court in refusing to permit the application to be amended will be set aside for abuse of discretion only.

The granting of a motion for continuance is within the exercise of sound discretion of the trial court, and will not be reviewed in the absence of a gross abuse thereof.

A requested instruction incorrectly stating the law is properly refused.

Where an illegal arrest is made by an officer, the person arrested may resist the same, or the continuation of custody thereunder, but not to the extent of excessive violence.

Appeal from District Court, Colfax County; Leib, Judge.

Stonewall Jackson Calhoun was convicted of involuntary manslaughter and he appeals. Affirmed.

J Leahy, of Raton, for appellant.

H. S Bowman, Asst. Atty. Gen., for the State.

HANNA C.J.

The appellant, Stonewall Jackson Calhoun, was charged by indictment in the district court for Colfax county with the commission of the crime of murder. He was found guilty of involuntary manslaughter, and has perfected this appeal.

As no statement of facts is contained in the brief of appellant the following statement, appearing in the brief of the state, will be considered as the facts of the case:

"On the morning of the 18th of February, 1915, the appellant, who was a deputy sheriff of the county of Colfax and a watchman employed by the St. Louis, Rocky Mountain & Pacific Railroad, at the coal camp of Koehler, Colfax county, N. M., had a dispute with Katie Rose, the wife of one of the employés at the coal camp. That evening upon the return home of her husband, Albert Rose, from his work, she informed him of the trouble she had had with the appellant, and urged him to go down to the place where the appellant resided and straighten the matter out. Albert Rose complied, and walked over to the home of the appellant and called him out of the house. A wordy altercation was indulged in between the two, whereupon appellant told Rose that he was under arrest and started with him towards the jail. About this time, Katie Rose, together with Mrs. Mary Elizabeth Buege, appeared on the scene and attempted to persuade appellant to release his prisoner. The four persons named walked on towards the jail, and on the way came to the house of the Roses, where the prisoner made an attempt to pull away from the officer and to enter his house. He stepped upon a platform in front of the door leading into his home and was pulled back by appellant. During the entire transaction both the prisoner, Rose, and the two women repeatedly urged the appellant that he had no right to arrest Rose and take him to jail. The witnesses for the state testified that at this time the appellant and Rose were scuffling around, and that the appellant had drawn his gun when he first made the arrest of Rose and still had it in his hand, began to fire, and did fire three or four shots, one of which struck Mrs. Buege, from the result of which she afterwards died. The appellant testified that about the time that he reached for Rose to pull him back off the platform or steps which he had ascended some one struck him a violent blow upon the head which knocked him to his knees; that he attempted to arise, and received a second blow upon the head which felled him to the ground and knocked him insensible; that he had no distinct recollection of any event that followed, except that he made several attempts to arise, each of which was frustrated by additional blows being showered upon his head from behind; that he finally saw Albert Rose approaching him with a pick, and that he then succeeded in struggling to his feet and started to run away from the place where the foregoing events took place; that Albert Rose followed him with a pick, striking at him, and that he turned and fired one last shot, which stopped Rose, but did not hit him. Mrs. Buege was taken from Koehler to Raton and placed in the hospital, and was prepared for an operation to remove the bullet, which entered just below her right breast, and came out just to the left of the middle of her back. The following morning, before the operation could

be performed, she died."

1. Appellant contends that the trial court erred in overruling his motion for continuance. The facts are that appellant filed an application for continuance on May 8, 1916. This motion was denied, evidently on the ground that no proper showing of diligence on the part of appellant had been made to entitle him to the continuance. He then filed an amended motion in which he attempted to show good cause for failure to have his witnesses present. He asked the court to rule on the motion as thus amended, but this the court declined to do. Appellant insists that the action of the court in this respect was tantamount to a denial of the motion. He also insists that he had the right, as a matter of course, to once amend his motion or application for continuance. Section 4463, Code 1915, provides:

"The application for continuance shall be amended but once, except to supply a clerical error, by permission. ***"

The statute is too plain to require construction. It clearly provides in effect that the application or motion may be once amended with the consent of the court. The consent of the court is a condition precedent to the right to amend. The refusal of the court to pass upon the motion as amended was equivalent to a refusal to permit the amendment. The facts are insufficient to justify holding that the court thereby abused its discretion.

2. Appellant also contends that the court was in error in denying his first motion for a continuance. It was apparently denied on the ground that it failed to show the exercise of the proper degree of diligence in attempting to obtain the attendance of a certain witness. Appellant filed a motion for a continuance on December 10, 1915. This motion was granted. No diligence whatever is shown in his motion of May 8, 1916, excepting the fact that he had two subpoenas issued to require the attendance of the absent witnesses, and that appellant learned on May 7, 1916, for...