State v. Clements.

• Decision Date: 08 June 1926
• Docket Number: No. 2913.,2913.
• Citation: 249 P. 1003,31 N.M. 620
• Parties: STATEv.CLEMENTS.
• Court: New Mexico Supreme Court

31 N.M. 620

249 P. 1003

STATE

v.CLEMENTS.

No. 2913.

Supreme Court of New Mexico.

June 8, 1926.Rehearing Denied Oct. 5, 1926.

Syllabus by the Court.

In a capital case, failure of the accused to move for a directed verdict does not necessarily preclude review of the evidence on appeal.

The trial court having found that in fact there was no tampering with the jury, no question of law is presented.

A remark of the district attorney in address to jury, incomplete because interrupted by objection, which remark, if completed, might or might not have constituted comment on failure of the accused to testify, held no ground for new trial.

On Rehearing.

The rule that a verdict in a criminal case will not be set aside if supported by substantial evidence is not varied by the fact that the evidence was circumstantial.

The presumption of prejudice from an unauthorized and improper communication between a juror and an outsider may be rebutted, and if it satisfactorily appears that such communication was not prejudicial, a new trial should not be granted.

Appeal from District Court, Rio Arriba County; Holloman, Judge.

Price Clements was convicted of first degree murder, and he appeals. Affirmed.

The rule that a verdict in a criminal case will not be set aside if supported by substantial evidence is not varied by the fact that the evidence was circumstantial.

Renehan & Gilbert and E. P. Davies, all of Santa Fé, for appellant.

J. W. Armstrong, Atty. Gen., James N. Bujac, Asst. Atty. Gen., and J. J. Kenney, Asst. Dist. Atty., of Sante Fé, for the State.

WATSON, J.

Price Clements appeals from a capital sentence on conviction of murder in the first degree for the killing of Clay Carpenter in Rio Arriba county.

In January, 1922, the bodies of Frank Akin and Clay Carpenter were discovered in an arroyo back of an unoccupied cabin. Clay Carpenter's death was caused by a gunshot would in the head, a large caliber bullet striking him on the left side of the occipital protuberance. Akin's body showed that he had been struck on the left temple with a blunt instrument, fracturing the skull and inflicting a necessarily immediately fatal wound. He had also been shot on the right side of the head with a large caliber bullet. This would was fatal, but not necessarily immediately so. Tracks in the snow and conditions inside the cabin indicated that one of these men had been slain in the cabin and dragged out the door around the cabin to the arroyo, where he was found, and that the other had been killed in front of the cabin, near a place where an automobile had stood, and dragged to the place where found. In the arroyo, some distance from either of these bodies, was found a large bucket containing bloody snow, which, apparently, had been placed there by the person who had disposed of the bodies. There was some evidence about the scene of the homicides of an atempt to remove the traces thereof.

On the evening of the day of the homicides, appellant appeared at El Vado, some 12 miles distant. There he left with a state's witness a number of articles, selling some for a few dollars, and apparently simply leaving others. Among these articles were some identified at the trial as Carpenter's. He exchanged with this witness a rifle and a 45-caliber pistol for a 32-caliber pistol. The 45-caliber pistol exchanged contained two loaded and two empty cartridges. Among the articles left was a shovel with blood on the handle and blade. Appellant also left with the witness a Ford car, to be cared for until he should return in April or May.

After making these arrangements, defendant went to Lumberton, Pueblo, Colorado, Dodge City, Kansas, and finally to Matador, Tex., where he was apprehended. He waived extradition, and returned in custody of the sheriff of Rio Arriba county. On that trip from Matador, appellant related to the sheriff his version of the double homicide, which we quote from appellant's brief:

“Clements was standing in the doorway of the cabin after breakfast looking out at the time of the tragedy. Akin was sitting on the bench near the wall beside the breakfast table, while Carpenter was sitting on a stool near the stove. Carpenter and Akin commenced quarreling about a poker game in which they had lost heavily. They had been gambling at a nearby lumber camp. The quarrel became heated finally, and words led to blows, and ended by Carpenter grabbing a pickax which was in the cabin and striking Akin in the head. Akin fell forward on the table and then to the floor. At the sound of the blow Clements turned and cried, ‘My God, Clay; what have you done?’ Carpenter, with an oath, yelled, ‘I'll get you too!’ At this Clements grabbed a revolver from the table, and Carpenter reached back to the bunk and got the rifle which was lying on the top of the bedding (thus doubtless making the smear of blood found on the bedding). Clements ran out of the door and got behind the auto, while Carpenter followed with the rifle, swearing and saying that Clements could not get away from him. For a time Carpenter and Clements dodged back and forth around the auto, and then, being on opposite sides, Clements stooped and looked under just in time to see Carpenter looking under from the opposite side. Quick as a flash Clements jumped to the running board and kneeled there with the body of the car between them. After a moment he peeked over the side of the car and saw Carpenter's rifle barrel come up and then his head as Carpenter arose from a kneeling position. As Carpenter's head came in view, Clements fired, and Carpenter stumbled and fell. Clements, then a boy of about 22, overcome by fear, dragged the bodies of the two men to the arroyo behind the cabin, took such money as they had, between $150 and $175, jumped in the auto and fled. Clements only had $2 or $3 of his own, and took the money from the bodies to get away with.”

It is appellant's first contention that the evidence was insufficient to warrant the verdict, or to warrant submission to the jury. The conviction rests entirely upon appellant's statement, to which the sheriff testified, and upon circumstances appearing in evidence. Appellant contends that there is remarkable correspondence between these circumstances and appellant's statement of what took place, that, as the statement was exculpatory, the state was bound to prove its falsity, and that the proof of appellant's guilt, as distinguished from the fact of the killing, must be found, if at all, in the physical facts and circumstances.

[1] The state points out that appellant made no motion for a directed verdict, announced himself as satisfied with the proposed instructions later given by the court, and, although he made a motion for a new trial, failed therein to raise the point now urged. State v. Garcia, 19 N. M. 414, 143 P. 1012, is cited to the proposition that, under such circumstances, appellant cannot, in this court, obtain a review of the evidence. It was so held in the original opinion. On rehearing, however, it was decided that this court has the inherent power “to see that a man's fundamental rights are protected,” even though he is not in a position to claim them as a matter of legal right. It there appeared not only that there was no substantial evidence to support conviction, but that innocence was actually and affirmatively disclosed. Therefore the inherent power was exercised and a new trial granted. If the same were true in this case, the precedent would require a new trial. In definition or limitation of the inherent power to protect the fundamental rights of accused persons, this court said in the Garcia Case:

“The restrictions of the statute [Laws 1917, c. 43, § 37] apply to the parties, not to this court. This court, of course, will exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of strictly legal, technical, or unsubstantial claims; nor will we consider the weight of evidence if any substantial evidence was submitted to support the verdict. If substantial justice has been done, parties must have duly taken and preserved exceptions in the lower court to the invasion of their legal right before we will notice them here.”

In view of this doctrine, we are not prepared to hold with the state that a review of the evidence in a capital case should be refused because of the failure to present to the trial court the question of its insufficiency. Having reviewed it and having found it sufficient, there is no occasion to apply, extend, or limit the rule of the Garcia Case.

The jury necessarily tested appellant's story by the circumstances shown. Among these were flight, taking a considerable sum of money from the bodies, concealment of the bodies, attempts to remove evidences of the crime, and disposing of the weapon with which the jury might have found both homicides to have been committed. It will be noted that appellant's explanation, as above quoted, fails to mention the gunshot wound in Akin's right temple. It was, however, brought out on cross-examination of the sheriff that just as Carpenter was leaving the cabin in pursuit of appellant, there was a shot, which appellant supposed to have been accidental. There is no other way, under appellant's version of the facts, to account for this wound. It was the state's theory that Akin was shot before he was struck with the blunt instrument. This theory was supported by the expert testimony of a physician, not in any way rebutted. The jury had a clear right to believe the state's theory in regard to this, and it was inconsistent with that of the defense. Appellant testified that he fired but one shot. In the pistol which he disposed of on the day of the homicide there were two empty shells. Thus there were circumstances from which the jury might draw inferences of guilt, and there was evidence which, if believed by the jury, would demonstrate that appellant had not truthfully accounted for...