State v. Conwell.

• Decision Date: 15 July 1932
• Docket Number: No. 3767.,3767.
• Citation: 13 P.2d 554,36 N.M. 253
• Parties: STATEv.CONWELL.
• Court: New Mexico Supreme Court

36 N.M. 253

13 P.2d 554

STATE

v.CONWELL.

No. 3767.

Supreme Court of New Mexico.

July 15, 1932.

Syllabus by the Court.

1. On the trial of a charge of assault with deadly weapon, whether the weapon was in fact used may be shown by circumstantial evidence.

2. Where the instrument with which an assault is charged to have been made is not one designated per se a deadly weapon under section 35-3407, Comp. 1929, whether it is so is ordinarily a question for the jury to determine considering the character of the instrument and the manner of its use.

3. Impeachment by cross-examination under section 45-606, Comp. 1929, to show former conviction of another offense should be limited to showing fact of such conviction and name of the offense. It is prejudicial error in such circumstances to compel a defendant on trial for one offense to relate on cross-examination the details of a former offense.

Appeal from District Court, De Baca County; Patton, Judge.

Nealy Conwell was convicted of assault with a deadly weapon, and he appeals.

Reversed, and a new trial awarded.

In prosecution for assault with deadly weapon, permitting cross-examination of defendant relating to details of former offense and conviction, for impeachment purposes, held error. Comp.St.1929, § 45-606.

Charles F. Fishback, of Ft. Sumner, for appellant.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

SADLER, J.

The appellant, who will be designated as defendant herein, was convicted by a jury in the district court of De Baca county of assault with a deadly weapon and sentenced to a term of years in the penitentiary. He seeks a new trial through the medium of an appeal here prosecuted, predicating the same upon several alleged errors claimed to have been committed against him at the trial.

The deadly weapon charged to have been used was a certain rock identified at the trial as 3/4ths of an inch thick, 4 inches long, and 3 inches wide. It was introduced in evidence and exhibited to the jury.

The evidence disclosed that a companion of the defendant called the prosecuting witness from a drug store in the town of Ft. Sumner on the night of May 8, 1931. Once outside the store he was accosted by the defendant and invited around to the side of the store. The prosecuting witness testified that, almost immediately after turning the corner of the drug store, the defendant told him they were going to “have a hell of a fight”; that he replied, no, there was nothing to fight about. He further testified that about that moment he was struck on the cheek bone; that he did not see the blow descending before it landed; and that it made “quite a skinned place or cut place there.” According to another state's witness, a deputy sheriff who witnessed the encounter, there were some preliminary words by defendant about some “lies he (prosecuting witness) was supposed to have told a girl about him” (defendant). This witness saw the defendant strike the prosecuting witness the blow which knocked the latter to his hands and knees. Just as he fell this witness testified he saw a rock hit on the concrete walk, bounce and come to a stop; that he picked it up, placed it in his pocket, and later gave it to the sheriff, who preserved it for the trial. He testified that he never at any time saw the rock in the hands of the defendant, but knew the prosecuting witness had been hit with something, and he thought it was knucks until he saw the rock fall on the sidewalk and “figured then it was the rock.”

It also appeared from the testimony of this witness that the prosecuting witness bled some following the encounter and was in an “addled condition.” The sheriff who received the rock in question from the hands of his deputy some thirty minutes following the encounter and first examined it next morning testified there was a little blood on it then.

The defendant denied having used a rock, claiming to have struck his adversary only with his fist. The injury was slight and was such as might have been inflicted either by a rock or by a blow with the closed fist. While defendant's counsel questions the sufficiency of the evidence to establish that a rock was used, there is circumstantially enough evidence to support a finding that it was. Such a matter may be established circumstantially. Regan v. State, 46 Wis. 256, 50 N. W. 287.

[1][2] Two points are principally relied upon for reversal. One of them, that a rock not being included in either class of deadly weapons defined in the statute, is not per se a deadly weapon, and, when charged so to be, must be proven such, the same as any other material fact. That no such proof was made here. The statute defining deadly weapons is section 35-3407, Comp. 1929. After enumerating certain types of deadly weapons, such as pistols, daggers, bowie-knives, etc., it concludes: “Also slungshots, bludgeons or any other deadly weapons with which dangerous wounds can be inflicted.”

Where the instrument used is not one declared by the statute to be a deadly weapon, it is ordinarily a question for the jury to determine whether it is so, considering the character of the instrument and the manner of its use. 2 Wharton's Criminal Law (11th Ed.) § 848, p. 1069; Commonwealth v. Duncan, 91 Ky. 592, 16 S. W. 530; State v. Schumann, 187 Iowa, 1212, 175 N. W. 75; State v. Sims, 80 Miss. 381, 31 So. 907; State v. Dineen, 10 Minn. 407 (Gil. 325). Of course, if the alleged weapon is not defined by the statute as deadly, a case may exist where, from the ordinary harmless character of such instrument considered in the light of its claimed use, the court can say as a matter of law that it was not, on the occasion and under the circumstances shown, a deadly weapon.

Here the manner of its use was shown, if the jury chose to believe it was used at all. The rock itself was exhibited and passed amongst the jurors, thus enabling them to know its dimensions, weight, sharpness of its edges, and potentiality for infliction of dangerous wounds from the manner...