State v. Eskildson.

• Decision Date: 27 June 1932
• Docket Number: No. 3709.,3709.
• Parties: STATEv.ESKILDSON.
• Court: New Mexico Supreme Court

36 N.M. 238

13 P.2d 417

STATE

v.ESKILDSON.

No. 3709.

Supreme Court of New Mexico.

June 27, 1932.Rehearing Denied Aug. 9, 1932.

Syllabus by the Court.

1. A conviction will not be set aside as unwarranted on the facts, and a new trial awarded, where the verdict upon which it is based has substantial support in the evidence.

2. In homicide case, facts examined and held to furnish adequate support within the rule for verdict of murder in the second degree.

3. Where alleged mental incompetency of one of the jurors who sat in the trial of a case is urged as a ground for new trial, the appeal is to the sound legal discretion of the trial court, the exercise of which will not ordinarily be reviewed.

4. A verdict may not be impeached by statements of a juror to third persons subsequent to rendition thereof.

Appeal from District Court, Bernalillo County; Helmick, Judge.

C. W. Eskildson was convicted of murder in the second degree, and he appeals.

Judgment affirmed.

In homicide prosecution, verdict finding accused guilty of murder in second degree held supported by substantial evidence.

Hugh B. Woodward and Gilberto Espinosa, both of Albuquerque, for appellant.

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

SADLER, J.

This is an appeal from a conviction of second degree murder had in Bernalillo county on change of venue from Sandoval county. The appellant will be referred to herein as defendant. His first and principal point relied upon for reversal is that the verdict upon which the judgment of conviction is based is without substantial support in the evidence. A determination of this point necessarily involves a consideration of all the evidence introduced at the trial.

On October 26, 1930, about 8:30 p. m., the defendant, a federal prohibition agent under supervision of the Albuquerque office, in the company of Mrs. Margaret Phillips and her young son 15 years of age, was returning to Albuquerque over the Santa Fé-Albuquerque highway from a Sunday afternoon automobile drive to the vicinity of Estancia. While making a dangerous curve approximately one mile north of Bernalillo in Sandoval county, and while on the paved portion of said highway, the defendant's attention was attracted to an overturned car in the ditch on the right-hand side of the highway looking south, which evidently had failed to take this curve. He brought his car, a Ford coupé, to a stop, got out, and returned for the stated purpose of seeing if he could be of assistance.

The car in distress belonged to one Miguel Castillo. A short while before he and one Liberato Leyba had left the little settlement of Llanito, less than a mile north on the highway, to drive to Bernalillo, approximately two miles south. Upon the overturning of their car, as testified by them, they had walked back to Llanito, secured the assistance of four men, including the deceased Uvaldo Martinez and his father, Pedro Martinez, had returned to the scene of the accident, and had just succeeded in placing the car upright when they became aware of defendant's presence. The defendant says he actually assisted four or more of them in restoring the overturned car to its upright position. But this conflict is unimportant, and is mentioned only as an incident to the main fact on which the parties seem to agree, viz.; that the defendant did not arrive on the scene until after the occupants of the car had visited and returned from Llanito with assistance.

From this point of time an irreconcilable conflict in the testimony of the witnesses for the state and the defense on most of what transpired thereafter presents itself. The defendant says that he detected a very strong odor of liquor on the men and in the car; that the men had been drinking, and that the owner and other occupant of the overturned car were in a badly intoxicated condition; that he proceeded to search the car, finding no liquor; that the owner of the car, Miguel Castillo, demanded to know by what authority he searched the car; that he informed him he was a federal prohibition officer and made the search by reason of the strong odor of liquor detected in the car; that he backed up onto the paving where a scuffle ensued, and he was struck several blows, Castillo continually demanding that he prove there was liquor present.

The defendant says they followed him one-third of the distance to his own car, parked about 100 feet south of the overturned car; that in the scuffle he had lost a new hat just purchased; that he proceeded to his car, got his gun, remarking to Mrs. Phillips and her son who had remained in the car that he was going back to get his hat.

Defendant says he had just proceeded to the point where his hat lay and picked it up when the party of men with the overturned car noticed him, and that Castillo and Leyba came up to him; the another scuffle ensued in which he again lost his hat; that Castillo struck him on the lip; that he proceeded to back to his car, holding his pistol on, and followed by them; that he got in his car and was attempting to get it started when some member of the other party, which included the two persons last named, broke out the window of his car and began to endeavor to pull him out; that a shot from the rear was fired about this time which made a bullet hole through the shatterproof windshield of his car; that they were striking at him and endeavoring to pull him through the car window, and he was striking back with his pistol, a certain .45 automatic, to defend himself, when without intention of firing it or of shooting any one the gun was discharged four or five times.

He further testified that upon the gun being thus discharged the members of the attacking party fell back, and he was able to get his car started; that thinking he was being pursued by them, and being under great excitement, he drove very rapidly toward Albuquerque with Mrs. Phillips and her son, and, failing to take a curve at Alameda near Albuquerque, his own car was overturned, in which turnover Mrs. Phillips was seriously injured and the car badly damaged. The defendant himself was in a hospital 23 days following the happenings of this fateful night, though he testified he was uninjured in the turnover, and that the injuries which occasioned his presence in the hospital were received in the scuffle and fight related by him. As a result of the discharges from the defendant's revolver, one Uvaldo Martinez received a bullet wound through the chest from which he died that night at eleven o'clock, and Liberato Leyba was shot through the hand.

The members of the deceased's party employed about the overturned car upon defendant's arrival there tell an entirely different story in many particulars of what transpired. They agree that defendant charged them with having liquor in the car, and that he searched it. They say they were not drunk and had not been drinking; that there was no gun in their party; that there was no scuffle or fighting; that they demanded defendant's authority for making the search, and that he never at any time informed them he was an officer; that he returned to his car and they to theirs; that presently he returned toward them menacing them with a gun held in his hands; that they went toward him again demanding his authority for the search as well as the reason for thus threatening them with the gun; that they followed defendant who moved backwards toward his own car with the gun still trained upon them; that after he had reached and gotten in his car and while they were standing in a group some three or four feet therefrom, the defendant shot deceased; that Liberato Leyba and Miguel Castillo then jumped toward defendant and seized him as he sat in the car; and that the defendant then shot Leyba in the hand and drove rapidly away.

We have not attempted and shall not attempt to state all of the testimony on the various phases of the case. Substantially the foregoing reflects the two conflicting stories of what actually occurred as told by the respective witnesses for the prosecution and for the defense. The conflict is irreconcilable. The defense was strongly corroborated in its claim that Miguel Castillo and Liberato Leyba, the two occupants of the overturned car, were intoxicated at the time their car left the road. Three witnesses testified they actually saw the accident and observed the two men emerge uninjured from the overturned car. They expressed the opinion that the two were drunk. Several passing motorists who stopped for a time and drove away, and others including some peace officers brought in contact with the wounded Leyba and others of his party following the homicide, lent corroboration to this claim of drunkenness or drinking on the part of Leyba and Castillo and other members of their party. All members of their party present at the trial stoutly denied they were drunk, or had even been drinking. The state in rebuttal produced certain witnesses who saw and talked with deceased and another member of his party in the late afternoon of the homicide who testified they saw no evidence of drinking by them at such time; and still other witnesses who visited Leyba in the hospital at Albuquerque some hours after the homicide and testified that he gave no evidence of drunkenness at the time of their visit.

However, if the decisive issue in the trial had been the drunkenness vel non of Miguel Castillo and Liberato Leyba, and the verdict be considered as affirming their sobriety (which is not necessarily its effect), we should at least have a case where the jury's finding would be difficult to explain. But their condition as to being sober or drunk was not the main issue. It was a collateral fact important only in so far as it bore upon the credibility of their testimony and that of their associates, testifying to their sobriety, and as reflecting their probable state of mind at the time in question.

The important issue was...