State v. Garcia
| Decision Date | 17 August 1914 |
| Docket Number | No. 1660.,1660. |
| Citation | 143 P. 1012,19 N.M. 414 |
| Parties | STATEv.GARCIA ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
An exception “to each and every paragraph of the court's charge, for the reason that the same, and each and every paragraph thereof, does not charge the law applicable to the cause in governing the same; that such charge, and each and every paragraph thereof, are upon the weight of the evidence, and same are confusing, misleading, and prejudicial, and are not supported by the evidence; that the charges upon first and second degree murder are prejudicial and not supported by the evidence”--is, except the last clause thereof, too general to raise any question for review in this court.
The last clause of the exception is of no avail where defendants were acquitted of murder and convicted of manslaughter, and no prejudice to them is pointed out on the argument.
No error can be assigned for failure to fully instruct the jury, where no requests for more detail instructions are presented.
The court has power to examine the witnesses offered in support of a motion for change of venue, and his discretion, ordinarily, will not be disturbed.
Where no motion for a directed verdict of not guilty for failure of proof is made, and the fact is not called to the attention of the court in the motion for a new trial, no relief can be granted by this court.
Where the evidence in a criminal case not only fails to support the verdict, but shows conclusively that the defendant did not commit the crime charged, this court, of its own motion, will take notice of the fact, and reverse the judgment, notwithstanding the defendant is precluded from insisting on the error by reason of failure to take and preserve proper exceptions in the court below.
Appeal from District Court, Union County; T. D. Leib, Judge.
Cipriano Garcia and another were convicted of voluntary manslaughter and appeal. Affirmed.
The court has power to examine the witnesses offered in support of a motion for change of venue, and his discretion, ordinarily, will not be disturbed.
O. P. Easterwood, of Clayton, and J. Leahy, of Raton, for appellants.
Ira L. Grimshal, Asst. Atty. Gen., for the State.
Appellants were indicted for murder, and were convicted of voluntary manslaughter. Counsel for defendants excepted to the instructions of the court as follows:
“Comes now the defendants, in their own proper person and attended by their counsel, O. P. Easterwood, Esquire, and except to each and every paragraph of the court's charge, for the reason that the same, and each and every paragraph thereof, does not charge the law applicable to the cause in governing the same; that such charge, and each and every paragraph thereof, are upon the weight of the evidence, and same are confusing, misleading, and prejudicial, and are not supported by the evidence; that the charges upon the first and second degree murder are prejudicial and not supported by the evidence.”
[1] 1. The Attorney General clearly points out that this form of exception is insufficient to present any question for review in this court. It has been firmly established by repeated decisions of this and the territorial court that an exception to an instruction must be sufficiently specific to direct the attention of the court to the error complained of, so that the error, if it exists, may be corrected before the jury retires to consider of its verdict. In this way the rights of the defendant may be then and there protected, and the public may be saved the expenses of a fruitless proceeding. Any other rule will convert a judicial proceeding into an unfair game wherein truth and justice must often fail. See Territory v. Pettine, 16 N. M. 40, 113 Pac. 843, collecting New Mexico cases.
An examination of the exception to the instruction discloses that, except as to the last clause thereof, to be presently noticed, it relates to “each and every paragraph thereof,” and recites that they are all inapplicable to the case, and are all comments on the weight of the evidence, and are all confusing, misleading, and prejudicial, and are all unsupported by the evidence. This, of course, necessarily, could not be so, and the exception is so drawn as to give no clue as to what counsel really complained of. The exception saves no question for review here. See Territory v. Pettine, 16 N. M. 40, 113 Pac. 843; Territory v. Leslie, 15 N. M. 240, 106 Pac. 378; James v. Hood (decided at this term) 142 Pac. 162.
[2] 2. The last clause of the exception may be sufficient to raise a question which we could consider under proper circumstances. It is to the effect that the evidence did not warrant the submission of the charge of murder to the jury, and that defendants were thereby prejudiced. But counsel for appellants have failed to point out wherein the action of the court was prejudicial to the defendants. They were acquitted of murder and convicted of manslaughter, and the jury, by their verdict, showed their ability to discriminate and to correctly apply the facts to the law as given them by the court.
This disposes of all the assignments as to the alleged erroneous character of the instructions actually given.
[3] 3. Numerous assignments are filed charging the failure of the court to fully charge the law. Likewise, none of these assignments are available. The defendants made no requests for instructions. The court fully and fairly covered the law of the case, and if the defendants desired more detailed and specific instructions, it was the duty of counsel to propose them to the court. Having failed so to do, no error can be assigned here. Territory v. Pettine, 16 N. M. 40, 113 Pac. 843, citing New Mexico cases; Territory v. Harrington, 17 N. M. 62, 121 Pac. 613.
[4] 4. Counsel assign error upon the refusal of the court to change the venue of the cause. The court called in the three witnesses furnished by the defendants in support of the motion, examined them, and found that a sufficient showing had not been made. We have examined their testimony and find it to amply support the action of the court. That the court has power to examine the supporting witnesses, and that his discretion, ordinarily, will not be disturbed, is fully established by the decisions in this jurisdiction. Territory v. Emilio, 14 N. M. 147, 89 Pac. 239; Territory v. Cheney, 16 N. M. 476, 120 Pac. 335.
[5] 5. A curious fact appears in the case. Francisco Garcia, one of the defendants, became engaged in an altercation with the deceased, whereupon deceased shot Garcia and he fell to the floor, and remained there, unconscious, during the whole of the remainder of the difficulty. Cipriano Garcia, his brother, was at the time at the back end of the saloon where the difficulty occurred, and took no part in the same up to this time. Upon hearing the shot and seeing his brother fall to the floor, he rushed to his rescue, encountered the deceased, and killed him. No proof of concerted action on the part of the brothers is shown. It thus appears that it was physically impossible for Francisco Garcia to be guilty of any crime in this connection, and he was entitled to an instruction to the jury to acquit him. Had the matter been called to the attention of the court before instructing the jury, no doubt he would have so directed them. But counsel sat quiet, speculated upon the result before the jury, and afterwards complained of an adverse result. Nor did counsel call the attention of the court to this proposition in the motion for a new trial. Under such circumstances, no relief can be granted here. No question is here for decision; the court below never having decided the point. The proposition, as presented, amounts to an appeal to this court for the first time to award a new trial to a defendant on the ground of the absence of evidence to convict him, when the lower court has never been asked to so decide. This is not available.
In People v. Smith, 106 Mich. 431, 434, 64 N. W. 200, the court said: “The...
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State v. Davis, 6366
...took no proper exceptions," this court reversed the judgment of conviction and in doing so, rested its opinion upon State v. Garcia, 19 N.M. 414, 143 P. 1012 rehearing), quoting therefrom, so far as the above stated point is concerned, as follows: "There exists in every court . . . . an inh......
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State v. Garcia
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State v. Stuart
...be done. For a similar case, and a similar holding, see Sykes v. United States, 204 Fed. 909, 123 C.C.A. 205." [QuotingState v. Garcia, 19 N.M. 414, 421, 143 P. 1012, 1014 (1914) From a careful examination of the record in this case we are convinced that while the evidence is sufficient to ......
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