State v. Cooley.

• Decision Date: 12 May 1914
• Docket Number: No. 1628.,1628.
• Citation: 19 N.M. 91,140 P. 1111
• Parties: STATEv.COOLEY.
• Court: New Mexico Supreme Court

19 N.M. 91

140 P. 1111

STATE

v.COOLEY.

No. 1628.

Supreme Court of New Mexico.

May 12, 1914.

Syllabus by the Court.

Between the two offenses, murder in the second degree and voluntary manslaughter, the drunkenness of the offender forms no legitimate matter of inquiry; if the killing is unlawful and voluntary, and without deliberate premeditation, the offense is murder in the second degree, malice being implied, unless the provocation were of such character as would reduce the crime to voluntary manslaughter, for which offense a drunken man is equally responsible as a sober one.

Where a defendant, charged with first degree murder, relies upon the defense of intoxication for the purpose of reducing the grade of the offense to murder in the second degree, he is not required to establish the fact of his intoxication, or that at the time he inflicted the fatal injuries he was so deeply intoxicated as to be incapable of forming in his mind a deliberate premeditated design to do the killing, beyond a reasonable doubt. All that he is required to do is to introduce such evidence as will raise in the minds of the jurors a reasonable doubt as to such facts in order to reduce the grade of the offense to murder in the second degree.

It is improper for the court, in the trial of a criminal case, to permit the district attorney to ask witnesses if he (the district attorney) did not instruct said witnesses not to talk to any one about the cause, and if they did not, in violation of such instructions, talk to the attorney for the defendant about the facts in the case; and, where the court erroneously permits such questions to be asked and answered, it should, upon request, instruct the jury that the district attorney had no right to forbid witnesses talking to the attorney for the defendant about the facts in the case, or to enforce such an order.

Where mere descriptive language is inadequate to convey to the jury the precise facts, or their bearing on the issue, the description by the witness must of necessity be allowed to be supplemented by his opinion in order to put the jury in a position to make the final decision of the facts. Held, that the court erroneously withdrew from the jury a statement by a witness that the defendant and deceased appeared to be perfectly friendly toward each other five minutes before the killing.

Appeal from District Court, Rio Arriba County; E. C. Abbott, Judge.

Claud M. Cooley was convicted of murder in the first degree, and appeals. Reversed and remanded.

It is improper for the court, in the trial of a criminal case, to permit the district attorney to ask witnesses if he, the district attorney, did not instruct said witnesses not to talk to anyone about the cause, and if they did not, in violation of such instructions, talk to the attorney for the defendant about the facts in the case; and, where the court erroneously permits such questions to be asked and answered, it should, upon request, instruct the jury that the district attorney had no right to forbid witnesses talking to the attorney for the defendant, about the facts in the case, or to enforce such an order.

The appellant was indicted at the November, 1912, term of the district court for Rio Arriba county for the murder of one Edwin A. Gilliland. The case was tried to a jury at the June, 1913, term, and resulted in a verdict of murder in the first degree. Motion for a new trial was duly filed, overruled, and the appellant sentenced to be hanged on the 25th day of July, 1913, from which judgment and sentence this appeal is prosecuted.

The homicide occurred on the 22d day of December, 1911, at the town of Chama, in the county of Rio Arriba, and state of New Mexico; the deceased and the defendant were first cousins, and had practically lived together as members of the same family from earliest childhood. There was only about a month's difference in their ages. On the night before the homicide there had been a “Gun Club Dance” in one of the public halls at Chama, at which guns, cartridge belts, hunting knives, etc., had been used for decorative purposes. The deceased, Gilliland, acting as a member of the decorating committee, had charge of securing the various guns and other weapons used to decorate the hall. The appellant did not go to the dance. The next day, the 22d day of December, Gilliland attended to the returning of the various guns used to decorate the hall, and brought a number of them to the room occupied jointly by himself and the appellant.

On the day of the homicide the appellant, after getting his lunch, went down to the depot with a small nephew to meet an older sister of the appellant's, who was expected to arrive on the afternoon train from Denver. While at the station waiting for the train, he had several drinks of whisky from a bottle carried by a man whom he met at the depot. The appellant's sister did not come as expected, and after the departure of the afternoon trains the appellant, with several others, including the deceased, Gilliland, made the rounds of the saloons, and spent the balance of the afternoon playing cards and drinking.

According to the testimony, Gilliland drank very little, if anything, during the afternoon, taking cigars instead of liquor. The appellant was drinking whisky during the entire afternoon. About supper time the defendant and the deceased left the Navajo saloon to go to supper, but changed their minds and went to the Social Club saloon, where they played a couple of games of pool (the appellant taking another drink), then left and went back to the Navajo saloon, where they met a friend by the name of Pogue. Gilliland took one drink, and the appellant and the man Pogue took several drinks. At this time the appellant began to feel the effect of the liquor he had taken; but Gilliland was perfectly sober. At about this time the bartender in the Navajo saloon stated to the appellant that he had a box of apples down at the depot which he wanted to get out of the express office before it was locked up. Gilliland and the appellant went down to the depot and succeeded in getting the box of apples, returning with it; the box being carried by Gilliland to the saloon from which they started. There the appellant had at least three drinks; Gilliland not taking any.

At this point in the proceedings there was some discussion between the appellant, the bartender, and a man by the name of Branson as to the appellant's condition of sobriety. The bartender then started out of the saloon for his home; the deceased following him with the box of apples on his shoulder, and the appellant trailing behind.

Between the hours of 3 o'clock in the afternoon and about 7:30 of the 22d day of December, 1911, the day of the killing, defendant had taken, in all, fourteen drinks of whisky of different quantities and one small beer.

The appellant remembered every minute detail of the events occurring during all of that time until he left the saloon en route home in company with the deceased and another person. From that time on he claims to remember absolutely nothing until he awoke in jail the next morning.

Somewhat later, and about 7 o'clock, one George A. Kelly, a witness for the state, met the appellant, with another man, in front of the Social Club saloon and spoke to them. Cooley answered in Spanish, and the witness then saw that his face was bleeding, and asked him what had happened. He said he had been hit; Cooley talking in Spanish, and the witness not understanding all that was said, or by whom Cooley claimed that he had been hit. The witness Kelly, with the assistance of one Joe Martinez, then proceeded to take Cooley to his room. Both the witness Kelly and the witness Martinez testified that Cooley was very drunk, staggering, and had to be helped down the street. When they arrived at the room, they found the deceased, Gilliland, in bed asleep. He awakened after they had entered, and they all three tried to induce Cooley to get into bed. Cooley was staggering around the room, and upset some of the furniture, and picked up one of the guns in the room. At about this time the witness Kelly asked Gilliland if there were any loads in the room for the gun, to which Gilliland replied in the negative, speaking to Cooley, and telling him, in a joking way, “Come on to bed, you damn fool,” and telling Kelly and Martinez that it was all right, that he would take care of Claud. The witnesses Kelly and Martinez then left the room.

The room occupied by the appellant and the deceased was in a house owned by the appellant's mother and occupied by a Mrs. Fitzer, who, together with one Gladys Bryan, was in the front room, sewing. They testified that they heard some disturbance, which sounded like furniture being overturned, also some talking, but that the talking was not particularly loud or boisterous; that this noise continued for some few moments, when a shot was heard. Mrs Fitzer went outside, and met the appellant coming around the house on the board walk, with a gun in his hand. She spoke to him and tried to get him to return to the room, and not go uptown. He refused, muttering and mumbling and staggering along the walk with the gun in his hand, muttering, “My God, Maggie, I have shot Ed.” Mrs. Fitzer was unable to prevent the appellant from going uptown. At this time the witness Pound, who lived near by, and who had come out of his house to see what had happened, spoke to the appellant; the appellant replying (as testified to by the witness Pound), “Get out of my way, or I will kill you, too.” The appellant then passed on up the street, where he was seen by the witness Daggett. The witness Daggett saw him coming up the street staggering, with a gun in his hand, and muttering to himself. When he reached where Daggett was, he said to the witness Daggett, “Oh, my God, Art!” The witness Daggett testified that the appellant was “kind of crying and swearing” as he staggered up the street, that he...