State v. Carabajal.

• Decision Date: 05 October 1920
• Docket Number: No. 2428.,2428.
• Citation: State v. Carabajal, 17 A. L. R. 1098, 26 N.M. 384, 193 P. 406, 1920 NMSC 86 (N.M. 1920)
• Court: New Mexico Supreme Court
• Parties: STATEv.CARABAJAL.

26 N.M. 384

193 P. 406

STATE

v.CARABAJAL.

No. 2428.

Supreme Court of New Mexico.

Oct. 5, 1920.

Syllabus by the Court.

The error of the district court in sustaining an objection to a question asked for the purpose of laying the foundation for impeachment is not available to the appellant, when as a matter of fact he is permitted to prove that the witness did make the contradictory statement called for in the question.

The statement by the district court that he fails to see the materiality of a question asked of the witness is not a comment upon the weight of the evidence, but is a mere statement of a legal objection to the testimony, and is unobjectionable.

The trial judge has the power in his sound judicial discretion to vary the order of proof, and his action is not reviewable, except for gross abuse of discretion.

Where the appellant was convicted of involuntary manslaughter, he cannot make complaint of error in the instructions of the court in regard to murder.

An exception to an instruction, to the effect that the same is not a full and complete statement of the law, is indefinite, and presents no question for review in this court.

An instruction upon manslaughter which omits to express to the jury that the killing must be without malice is not harmful, but, on the other hand, beneficial to the defendant, and he has no complaint thereon in this court.

InstructionsNos. 10 and 14 examined, and held not to be in conflict with or repugnant to each other.

The district court is not bound to give instructions which, even if correct, are merely cumulative, and state in another form a proposition of law already given to the jury.

An instruction which merely lacks scientific form, while in substance it covers the matter fully, is not objectionable; and, even if the same is not directly applicable to the facts in the case, where by no possibility it could mislead the jury, the giving of the same is harmless and not available as error.

The jury returned a verdict of involuntary manslaughter, and voluntary and without any instruction from the court upon the subject appended thereto the following: “We respectfully beg the mercy of the court.”It is held that section 4447,Code 1915, which authorizes such a recommendation, has the effect merely of allowing the jury to give the trial judge the benefit of their opinion as to whether clemency should be extended, and is not intended to in any manner control the ultimate discretion of the trial judge in fixing the sentence.

Appeal from District Court, Otero County; Edwin Mechem, Judge.

Marcelino Carabajal was convicted of involuntary manslaughter, and he appeals.Affirmed.

Where the appellant was convicted of involuntary manslaughter, he cannot make complaint of error in the instructions of the court in regard to murder.

Holt & Sutherland, of Las Cruces, for appellant.

O. O. Askren, Atty. Gen., and N. D. Meyer, Asst. Atty. Gen., for the State.

PARKER, C. J.

The appellant was tried upon an indictment charging murder, and was convicted of involuntary manslaughter.He was sentenced to imprisonment for a period of not less than 9 nor more than 10 years, from which judgment this appeal is prosecuted.

The theory of the state was that the appellant shot and killed his wife just as she was entering a house in which her alleged paramour was staying.The claim of the defense was that she entered the house, and that appellant upon entering the house found his wife on a bed with a man, and in an attempt to kill the man he accidentally killed his wife by shooting her.The circumstances were such that the appellant might have invoked the statute(section 1468,Code 1915), which declares that a man may justifiably kill another who is in the act of having carnal knowledge of his wife, with whom he is then living as husband and wife.The jury necessarily refused to follow the theory of the prosecution to the effect that the woman was shot before she entered the house, else they could not have found the appellant guilty of involuntary manslaughter.If she was shot outside of the house, the act must have been intentional.On the other hand, the jury must have followed the theory of the defense, to the effect that she had entered the house and was unintentionally killed, but not under circumstances which entirely justified the appellant.In reaching this conclusion some physical facts which tended to show that she was shot before she ever entered the house were disregarded by the jury.However, it was the province of the jury to determine the facts and they have found otherwise.

[1] 1.Previous to the trial most of the witnesses for the prosecution had given testimony in a habeas corpus proceeding brought by appellant to obtain bail.Upon that hearing a witness Bernabe Torres, the supposed paramour, testified.Upon the hearing the witness made statements as to his whereabouts on the Sunday preceding the homicide, and as to appellant visiting his room on said date.The subject-matter of the proof was collateral to the main issue, and in no way reflected upon the merits of the case.Upon the trial the witness was cross-examined in great detail as to his former testimony, and four questions were propounded to him, which were read from the stenographic report of the habeas corpus proceeding, and objection was interposed to each of these questions and sustained by the court.The proof called for was immaterial, except as it may have reflected upon the fairness or accuracy of the memory of the witness.But the subject-matter of the cross-examination was immaterial.It was not material, under the circumstances, whether the witness was at his room on the Sunday preceding the homicide, or whether the deceased came there and looked in and talked with appellant on that occasion, as no claim was made that the subject of the attentions of the witness to the wife of appellant was mentioned or discussed.

Appellant was allowed to, and did, prove by the reporter who reported the case upon the habeas corpus proceedings, that the witness did give the testimony in question upon that hearing, except as to that mentioned in the last question referred to in the briefs, and in that case the objection was properly sustained, for the reason that the testimony called for did not contradict any testimony given by the witness in the present trial.

We have then a case where the court has erroneously, we may assume, but without so deciding, excluding a question, asked for the purpose of laying a foundation for impeachment, but where the appellant has subsequently shown that the witness did previously testify as shown by the question which was excluded.

A casual view of the reason underlying the rule upon this subject will be sufficient to show that there is no error here of which appellant can complain.The rule is that before proof of previous statements, contrary to the present testimony of the witness, may be shown, the previous statement and the circumstances under which the statement was made, sufficient to identify the occasion, must be called to the attention of the witness.This rule is statutory in this jurisdiction.Section 2178,Code 1915.The object of the requirement is to afford the witness an opportunity to deny the statement, if he did not make it, or to admit it if he did make it, and to make such explanation of the apparent contradiction as he may have.Section 5, Chamb.Mod. LawEv. §§ 3756, 3757;2 Wig. Ev. §§ 1025, 1035;5 Jones, Ev. § 846.

The protection furnished by the rule is for the benefit of the witness, not for the parties.And when, as in this case, the appellant was permitted to show by the reporter of the habeas corpus proceedings the former statement by the witness, without foundation having been laid, it was the witness, if anybody, and not the appellant, who suffered injury.

[2] 2.In connection with the exclusion of the testimony which is referred to, objection is made by appellant to a remark of the court.After one of the questions referred to had been asked by counsel for the appellant, the court said, “I fail to see the materiality as to that, asking whether Narciso was there.”Thereupon counsel for appellant stated, “Goes to the credibility of the witness.”The question was then repeated and answered by the witness.There is no merit in the contention of counsel that the court undertook to comment upon the weight of the evidence.If the statement by the court was anything, it was a statement of a legal objection to the evidence.This lack of materiality upon explanation by counsel of the object of the question the witness was allowed to answer.Under such circumstances there is nothing before the court of which the appellant can complain.

[3] 3.Upon rebuttal the state called five witnesses, all of whom were permitted to testify relative to the condition of the deceased in regard to menstruation.These witnesses had all testified in chief, but they did not testify that the woman was menstruating.The witness, Ed Kelly, the undertaker, did testify, upon the case in chief for the state, that he took the body to his undertaking parlors, and there removed all of her clothing, among which was a menstrual pad, which was much soiled from the menstrual flow.

In this connection, it is to be recalled that the theory of the prosecution was that the woman was shot by the husband before she ever entered the room.The theory of the defense, however, was, as before stated, that she had entered the room, and was upon the bed with a man whom the appellant tried to kill by shooting.He justified his act under the statute heretofore mentioned, and claimed accidental killing of his wife.The state justified the introduction of evidence that the woman was menstruating at the time upon the theory that it tends to contradict the appellant and to render improbable his claim that the woman was on the bed with the man in the act of having sexual intercourse with him.In view...