State v. Cummings, 5496
| Decision Date | 28 January 1953 |
| Docket Number | No. 5496,5496 |
| Citation | 57 N.M. 36,253 P.2d 321,1953 NMSC 8 |
| Parties | STATE v. CUMMINGS. |
| Court | New Mexico Supreme Court |
Richard C. Losh, F. Craig Morton, Jr., Albuquerque, for appellant.
Joe L. Martinez, Atty. Gen., James B. Cooney, Asst. Atty. Gen., for appellee.
Jack W. Cummings was convicted of the crime of involuntary manslaughter and sentenced to serve a term of not less than one year nor more than two years in the state penitentiary. His motion for a new trial was denied and he appeals from the verdict and sentence.
On August 3, 1951, at about 12:15 in the morning, the defendant was driving his automobile in a southerly direction along North Fourth Street in the City of Albuquerque, and at a point indicated by the testimony in the case he struck and killed Victor M. Van Geison. The testimony tends to show that the automobile, a 1946 Chevrolet, was being driven at a speed of forty or fifty miles per hour. There was also testimony tending to prove that the defendant was at the time intoxicated. The deceased was crossing North Fourth Street in the pedestrians cross-walk lane on Mountain Road when he was struck and killed. The defendant testified that he stopped at two different bars and had three beers before the accident; that he did not think he was going too fast; and that he did not see the deceased until he was right up on him.
The defendant contends that he was prejudiced by the following instruction given by the court over his objection:
'You are instructed that no person driving or in charge of any motor vehicle on a public highway has a legal right to drive the same at any speed that is greater than is reasonable and proper, having regard to the traffic and use of the street by others, or so as to endanger the life and limb of any person, and if you find after a fair preponderance of the evidence in this case that the defendant was driving his car at a speed greater than was reasonable and proper, having regard to the traffic and use of said street where he was then driving said automobile, by other persons and the public, or was then and at that place driving said automobile at such a rate of speed as to endanger the life and limb of any other person, and because of such rate of speed, and driving while drunk, you further find that the deceased was injured, resulting in his death, then you are instructed that you will be warranted in finding the defendant guilty of manslaughter as charged in the information.' (Emphasis ours.)
This instruction assumes that facts may be proven by a proponderance of the evidence. It permitted the jury to weigh the evidence under the rule applicable to civil cases and, having so weighed it and ascertained which side the scale preponderated, to decide the case accordingly. It is in direct conflict with the other instructions in which the jury were told that, in order to convict, the evidence must satisfy them of defendant's guilt beyond a reasonable doubt. It led the jury to believe that they would be authorized to base a conviction on the greater weight of the evidence. We think, under the facts of this case, that this instruction was not only calculated to mislead and confuse the jury, but was hurtful to the defendant. From any point of view, such an instruction has no place in a criminal case.
In State v. Crosby, 26 N.M. 318, 191 P. 1079, 1081, we said:
'We believe the proper rule to be that error committed in giving an incorrect instruction is not cured or rendered harmless by the giving of a correct instruction on the same subject, and this rule should be applied in the present case, in which the erroneous instruction was complete, unambiguous, and certain.'
See, also State v. Sherwood, 39 N.M. 518, 50 P.2d 968.
In Steinmeyer v. People, 95 Ill. 383, the court said:
It is next contended that this case should be reversed by reason of the misconduct of the district attorney. This...
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State v. Jimenez, 34,375
...during closing were not improper because they were based on facts in evidence), with State v. Cummings , 1953-NMSC-008, ¶ 8, 57 N.M. 36, 253 P.2d 321 (explaining that "a statement of facts entirely outside of the evidence , and highly prejudicial to the accused, cannot be justified as argum......
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1998 -NMSC- 14, State v. Duffy
...of valid argumentation to recite prejudicial "facts" that are entirely outside the evidence presented at trial. State v. Cummings, 57 N.M. 36, 39, 253 P.2d 321, 323 (1953). It is misconduct for a prosecutor to make prejudicial statements not supported by evidence. See State v. Bartlett, 96 ......
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State v. Aull
...276 (1956); State v. Mersfelder, 34 N.M. 465, 284 P. 113 (1927); State v. Garcia, 57 N.M. 665, 262 P.2d 233 (1953); State v. Cummings, 57 N.M. 36, 253 P.2d 321 (1953). The second statement is claimed to amount to a comment on the defendants' failure to testify in their own defense, as forbi......
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Johnson v. Hatch, CIV 10-0745 JCH/KBM
...relied on a state decision that in turn quotes Berger v. United States, 295 U.S. 78, 88 (1935). See id. (citing State v. Cummings, 57 N.M. 36, 39, 253 P.2d 321 (1953)). The Court of Appeals denied amendment because the issue was "not sufficiently viable," but did not explain why it reached ......