State v. Carter.
| Decision Date | 16 November 1915 |
| Docket Number | No. 1781.,1781. |
| Citation | 153 P. 271,21 N.M. 166 |
| Parties | STATEv.CARTER. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The general rule upon the subject of cross-examination of witnesses is that such examination can only relate to facts and circumstances connected with the matter stated in the direct examination of the witness.
It is recognized that from the necessity of the case the method and extent of the cross-examination must depend very largely upon the discretion of the trial judge; and this is especially true where the object is to test the accuracy and credibility of the witness.
For the purpose of testing the credibility of a witness, it is permissible to investigate the situation of the witness with respect to the parties and to the subject of litigation, his interest, his motives, inclinations, and prejudices, his means of obtaining a correct and certain knowledge of the facts to which he bears testimony, the manner in which he has used those means, his powers of discernment, memory, and description.
Questions propounded to a witness on cross-examination as to what another witness had testified at a preliminary hearing in the cause was not proper cross-examination, and cannot be justified upon the theory of testing the accuracy and credibility of a witness.
Appeal from District Court, Curry County; Richardson, Judge.
Wilkie Carter was convicted of unlawfully playing a game of chance, and appeals. Reversed and remanded for new trial.
The right to cross-examine is limited to matters stated by the witness in his direct examination.
W. A. Gillenwater, of Clovis, and James A. Hall, of Portales, for appellant.
H. S. Bowman, Asst. Atty. Gen., for the State.
Wilkie Carter was indicted at the September, 1914, term of the district court of Curry county, charged with a violation of the New Mexico anti-gambling act. He was convicted upon the first count of the indictment, which charged the unlawful playing of a game of chance, viz., shaking dice for money, from which conviction he prayed, and was granted an appeal to this court.
The only assignment of error which we find it necessary to consider is the first, which was based upon the action of the trial court in permitting the district attorney, over the objection of the defendant, to propound to one of the witnesses for the defense, Ed Joiner, while on cross-examination, certain questions which related to testimony which it is alleged had been given by a state witness, one A. C. Burke, at a preliminary hearing of this cause. We do not deem it necessary to set out all the questions which were propounded to this witness under cross-examination. Several of them had reference to the preliminary examination, without calling for an answer as to what the state's witness had testified, but only referring to what had occurred at that time and place, as, for example, whether or not, in the course of the witness' examination, he had pointed out the witness Joiner as one of the men that had shaken dice with him. Most of the questions, however, were directed to the testimony given by the witness Burke at the preliminary hearing, as, for example, when the witness was asked:
“State whether or not he [referring to Burke] was asked this question, ‘State whether or not Mr. Carter and Mr. Joiner threw dice then for money,’ and if he didn't give this answer, ‘Yes.’ ”
Witness was also asked to state whether or not this question was asked him (again referring to Burke):
Again, this question was propounded to the witness Joiner:
“Did he testify against Wilkie Carter?” and “Did he testify as I have read you here?” were further questions addressed to the witness under cross-examination.
In connection with this assignment of error, appellant directs our attention to the fact, which is borne out by the record, that a purported transcript of the testimony of the witness A. C. Burke at the preliminary hearing in this cause was offered in evidence by the state as a part of its case in chief, and upon objection of the defendant was excluded. It is contended by the appellant that this reference to the alleged testimony of an absent witness was highly prejudicial to the cause of the defendant, which cannot be justified upon any theory as to the limits of cross-examination, which prejudice was not corrected by the attempted limitation of the effect of the evidence to the laying of a predicate for impeachment; the court having attempted to so limit the evidence in question by his instruction No. 16.
It is too clear for argument that the reference to the testimony of the absent witness, Burke, cannot be justified upon any theory of laying a predicate for impeachment of the witness Joiner. The only theory upon which the admission of the evidence in question could be justified is that adopted by the Attorney General, who...
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State v. Dickens
... ... "Q ... That is probably known as a running iron, an instrument used ... like that -- is that right? A. Well, from my understanding of ... a running iron, why, that is what it would be called." ... [191 P.2d 367] ... In the ... case of State v. Carter, 21 N.M. 166, 153 P. 271, ... 272, a case in which the state examined the witness as to ... what an absent witness had testified at the preliminary ... examination, and in which, among other things, it is said: ... "Applying ... the foregoing rules to the facts of this case, can it ... ...
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State v. Rodriguez.
...are generally limited to subjects upon which the witness has been interrogated on direct examination.” See, also, State v. Carter, 21 N. M. 166, 153 Pac. 271. This author, in the same section, further says: “While counsel may cross-examine on relevant facts gone into on direct examination, ......
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State v. Starr
...there is manifest abuse of such discretion, an appellate court will not reverse the ruling of the trial court.” See, also, State v. Carter, 21 N. M. 166, 153 Pac. 271. [9] It is contended that the defendants' requested instruction No. 1 was improperly refused by the trial court. Little impo......
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State v. Starr
...there is manifest abuse of such discretion, an appellate court will not reverse the ruling of the trial court." See, also, State v. Carter, 21 N.M. 166, 153 P. 271. It contended that the defendants' requested instruction No. 1 was improperly refused by the trial court. Little importance is ......