State v. Chavez
| Decision Date | 17 August 1914 |
| Docket Number | No. 1654.,1654. |
| Citation | 19 N.M. 325,142 P. 922 |
| Court | New Mexico Supreme Court |
| Parties | STATEv.CHAVEZ ET AL. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Sections 2986 and 2987, Comp. Laws 1897, requires a continuance of a cause for absence of a witness only in case the applicant has “no other witness by whom such facts can be fully proved.” Where, after the overruling of a motion for continuance, the desired fact is fully proved by other witnesses, the ruling of the court in denying the continuance, even if technically erroneous when made, is rendered harmless.
Assignments of error held not available upon well-established rules of practice.
An instruction that: -- held erroneous, as violative of section 2994, Comp. Laws 1897, which forbids comment by the court upon the weight of the evidence.
Appeal from District Court, Sierra County; M. C. Mechem, Judge.
Eduardo Chavez and others were convicted of assault with a deadly weapon, and appeal. Reversed and remanded.
An assignment of error, complaining that the court did not compel the state to admit the truth of the proposed testimony of an absent witness on account of whose absence a continuance was sought but instead only required it to admit that the witness would testify if present, could not be considered on appeal where an entirely different question was argued in accused's brief.
Isaac Barth, of Albuquerque, for appellants.
Ira L. Grimshaw, Asst. Atty. Gen., for the State.
Appellants were convicted of the crime of assault with a deadly weapon.
[1] 1. They assign error upon the refusal of the court to grant a continuance. The same was sought on the ground of the absence of three witnesses. As to the testimony of one of them, the court required the state to admit that the absent witness, if present, would testify as outlined in the affidavit in support of the motion; but, as to the other two witnesses, he did not so require. Three other witnesses were produced by defendants, who testified to the identical facts in substance which it was alleged the absent witnesses would testify to. The sole defense of defendants was that of alibi, and all of the witnesses, both those who testified and those who were absent, were relatives of the defendants and lived at the same place, and some of them in the same houses, with the two absent witnesses. The witnesses who testified fully covered the whereabouts of the defendants during the whole of the time of the occurrence of the alleged crime, and some of them covered all or nearly all of the identical facts set up in the affidavit for continuance as the proposed evidence of the two absent witnesses. Our statute requires an affidavit in support of a motion for continuance that the defendant “knows of no other witness by whom such facts can be fully proved.” Section 2986, C. L. 1897. This was done in this case. But the essential fact to be proved was the absence of defendants from the scene of the alleged crime at the time it was committed. This was fully shown by the evidence of the defendants' witnesses and the admission by the state as to the evidence of the one witness. Under such circumstances, it is clear that the affidavit of defendants was not true in substance, although it may have been technically so, owing to allegations of some more minute details therein as to the proposed testimony of the absent witnesses, and which details may not all have been shown by the other evidence. Under such circumstances, the overruling of the motion for continuance, even if technically erroneous at the time it was done, became harmless at the later stage of the trial.
[2] 2. Counsel for defendants assign error because the court did not compel the state to admit the truth of the proposed testimony of the one absent witness as outlined in the affidavit for continuance, but instead only required it to admit that the witness would testify if present. In other words, counsel attacks the constitutionality of our statute, which was literally followed by the court. Section 2987, C. L. 1897. The answer to this assignment is twofold. First no such question was presented to the trial court at the time the requirement was made. Second, counsel argues an entirely different question in the brief, viz., that it is a violation of defendants' rights to compel them to go to trial without a witness, notwithstanding the admission by the state that the witness, if present, would testify as outlined in the affidavit. Both...
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State v. Ochoa
...July 1, 1934. Prior to that date the action here complained of would have been considered improper. Comp.St.1929, § 70-104; State v. Chavez, 19 N.M. 325, 142 P. 922, Ann. Cas.1917B, 127. [25] This privilege long has obtained in favor of trial judges in the federal courts. The comment should......
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State v. Diaz.
...an entirely incorrect definition of the crime would not constitute reversible error unless timely objection were made. In State v. Chaves, 19 N. M. 325, 142 P. 922, Ann. Cas. 1917B, 127, we held that under indictment for assault with a deadly weapon, failure to submit the included offense o......
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State v. Hashimoto
...which do not appear from the evidence cannot be supplied by presenting the same for the first time in the appellate court. State v. Chavez, 19 N.M. 325, 142 P. 922; 3 Am.Jur., Appeal and Error, § 697, p. 290. See Holstein v. Benedict, 22 Haw. As to the ground urged anent the admission by ei......
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State v. Klantchnek, 5893
...not raised below. Taylor v. Shaw, 1944, 48 N.M. 395, 400, 151 P.2d 743; Miera v. State, 1942, 46 N.M. 369, 129 P.2d 334; State v. Chavez, 1914, 19 N.M. 325, 142 P. 922, Ann.Cas.1917B, It is strongly urged that the statute involved here violates the Fourteenth Amendment to the Constitution o......