State v. Garcia.

• Decision Date: 29 May 1942
• Docket Number: No. 4603.,4603.
• Citation: 46 N.M. 302,128 P.2d 459
• Parties: STATEv.GARCIA.
• Court: New Mexico Supreme Court

46 N.M. 302

128 P.2d 459

STATE

v.GARCIA.

No. 4603.

Supreme Court of New Mexico.

May 29, 1942.Rehearing Denied Aug. 25, 1942.

Appeal from District Court, San Miguel County; Irwin S. Moise, Judge.

J. Brigido Garcia was convicted of murder in the first degree, and he appeals.

Affirmed.

Where evidence supported conviction for murder in first degree, defendant had trial before jury of his peers and before an able, capable, and conscientious judge, and was ably represented by counsel, there was no “fundamental error” in the giving of first-degree murder instruction, as against contention that evidence did not justify instruction as to murder in first degree.

H. A. Kiker and Manuel A. Sanchez, both of Santa Fe, for appellant.

Edward P. Chase, Atty. Gen., and Howard F. Houk, Asst. Atty. Gen., for appellee.M. E. Noble, Dist. Atty., and E. R. Cooper, Asst. Dist. Atty., both of Las Vegas, amici curiae on behalf of appellee.

ZINN, Justice.

Appellant was convicted of murder in the first degree. The jury by its verdict fixed punishment at life imprisonment and the court sentenced the appellant accordingly. This appeal followed.

The state appears before us through its Attorney General and his assistants. By permission of the Attorney General the Hon. M. E. Noble, District Attorney of the Fourth Judicial District and his assistant, the Hon. E. R. Cooper, who prosecuted the case below, appear Amicae Curiae.

The major contention of the appellant, represented by very able counsel in this Court, who in fairness to them it should be said did not appear below, is that there is fundamental error in the instructions because the court either improperly instructed the jury or else the instructions as given confused the jury. The appellant also contends that the evidence adduced at the trial did not justify the court instructing the jury as to murder in the first degree. At the trial the appellant interposed no objections to the instructions as given nor did he request that any instructions be given.

[1] Counsel for appellant argues that it seems to have been the law at the time of the adoption of our State Constitution, which law is reviewed in the case of State v. Diaz, 36 N.M. 284, 13 P.2d 883, and followed in the case of State v. Hall, 40 N.M. 128, 55 P.2d 740, 741, that the defendant in a homicide case not only had the right of trial by jury, but that he had the right to have the jury instructed by the court as to the various degrees of homicide within the evidence, and that these rights must and ought to be accorded an accused without request on his part. Therefore, so argues the appellant, the right to have proper instructions given in a homicide case without request is not purely a procedural matter but is a substantive right. Although in the case of State v. Hall, supra, we said: “*** but rule No. 70-108 in its application to instructions on murder falls in a different class, and effects a change in the rule of procedure ***.” (Italics ours) Yet we do not have to determine in this case whether the right to have the jury instructed properly on the law of the case be a substantive right or not. That it is a right, whether substantive or adjective, cannot be questioned. Nevertheless it is a right that an accused may waive.

[2] It is not a right guaranteed by the Constitution of New Mexico as is the right of trial by jury. As to the right of trial by jury we recently held in the case of State v. Hernandez, 46 N.M. 134, 123 P.2d 387, opinion handed down March 9, 1942, as follows: “The question raised is one of great importance in the field of criminal law enforcement. The right of an accused to a trial by jury is deeply imbedded in our jurisprudence and is not to be lightly held the subject of waiver. But if the right to it be merely a privilege, albeit a high one, and such privilege may be waived without weakening or undermining the right, then it is the accused's, to enjoy or not as he may elect.” And we also there said:

“The matter was finally put at rest in the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854, 70 A.L.R. 263, in an able and extended opinion written by Mr. Justice Sutherland. The right to waive a jury even in the case of felonies is sustained. The argument often advanced that public policy forbids such waiver is exploded. The anomaly of permitting a defendant to plead guilty and thus dispense with a trial altogether and of denying him the right under a plea of not guilty to waive a jury and submit to trial before the court is banished.

“Had the Patton decision preceded the Ortiz case [Territory v. Ortiz, 8 N.M. 154, 42 P. 87] before our territorial court, the right to waive jury even in the trial of a felony would not have been denied. The right of waiver with the safeguards thrown around its exercise in felony cases, as outlined in the concluding paragraph of the opinion in the Patton case, would seem more consonant with reason, justice and the orderly dispatch of judicial business than the conclusion reached in the Ortiz case.”

If an accused in a felony case may waive trial by jury, a right guaranteed by our Constitution, and unquestionably a substantive right, it would clearly be inconsistent with sound reasoning to say that a person standing trial in a homicide case may not waive instructions to the jury on the law of the case.

The rule we laid down in the Diaz case, supra, does not apply to the instant case. The Diaz case has been superceded by Rule 70-108 of the Rules of Pleading and Practice.

Rule 70-108, which became effective July 1, 1934, was in force at the time of the trial in this case. This rule provided as follows: “For the preservation of any error in the charge, objection must be made or exception taken to any instruction given; or, in case of a failure to instruct on any point of law, a correct instruction must be tendered, before retirement of the jury. Reasonable opportunity shall be afforded counsel so to object, except or tender instructions.”

Rule 70-108 is applicable to cases wherein the defendant is charged with homicide as well as upon any other charge. In State v. Diaz, supra, we held that the trial court was under a duty to correctly instruct on the law of murder in all degrees submitted and that failure of the trial court to so instruct was fundamental error which could be urged for the first time on appeal.

In State v. Diaz [36 N.M. 284, 13 P.2d 887], speaking through Mr. Justice Watson, after reviewing the authorities on the particular point, we said: “On further consideration, we conclude otherwise. As the result of former decisions, the matter stands thus on authority: Ordinarily, instructions given are the law of the case, and cannot be complained of unless the accused objected to those given, or requested others. This applies to a failure to submit involuntary manslaughter. But, the erroneous failure to submit second degree murder or voluntary manslaughter will require a new trial, even though the accused has not objected in any way to the omission. While this result may not be entirely logical, it is not entirely without reasonable support, and it spares us the necessity of overruling former decisions.” This decision was handed down Aug. 25, 1932.

The opinion in the Diaz case was written by Justice Watson and concurred in by Chief Justice Bickley and Justices Sadler and Hudspeth.

Approximately two years later, on July 1, 1934, this court adopted Rule 70-108. When Rule 70-108 was adopted, the court consisted of Chief Justice Watson and Justices Sadler, Hudspeth, Bickley and the writer of this opinion.

Then came the case of State v. Simpson, 39 N.M. 271, 46 P.2d 49, handed down May 17, 1935. This was a first degree murder case. Speaking again through Mr. Justice Watson, we believe we made it clear that the purpose of Rule 70-108 was to supersede the rule in the Diaz case.

The opinion in the Simpson case was written by Mr. Justice Watson and was concurred in by Mr. Chief Justice Sadler, and Justices Hudspeth and Bickley and the writer of this opinion.

In the Simpson case, supra, we said: “We deem it wise, however, to point out that it would be unfortunate if the profession were generally to overlook that the final somewhat unsatisfactory conclusion in the Diaz case was reached upon lines of decision more or less conflicting and upon peculiar statutes; that, in pursuance of the rule making power (Laws 1933, c. 84), this court has revised the statutes on instructions to juries, effective July 1, 1934; and that the rule now is: ***.” (Then follows a quotation of Rule 70-108)

In the Simpson case, the above statement was made in order to clarify any misunderstanding that may have arisen from the opinion in the Diaz case and to point out to the profession that Rule 70-108 made the Diaz case on this point no longer effective.

The question was again presented to this court in the case of State v. Hall, supra. In the Hall case no objection had been made to the instructions given by the trial court. Appellant contended that the trial court committed fundamental error in the instruction on murder, relying on the Diaz case, supra. In the Hall case, decided December 24, 1935, speaking through Mr. Justice Hudspeth, we held Rule 70-108 not applicable because it became effective while the Hall case was pending, yet we did say: “Many of the rules effective July 1, 1934, are merely restatements of rules of court or statutes, but rule No. 70-108 in its application to instructions on murder falls in a different class, and effects a change in the rule of procedure in force at the time of its adoption. State v. Simpson, 39 N.M. 271, 46 P.2d 49.”

We applied the rule of the Diaz case to the Hall case because Rule 70-108 fell within the prohibition of N.M.Const. Art. 4, Sec. 34. The opinion in the case of State v. Hall, supra, was written by Mr. Justice Hudspeth and concurred in by Chief Justice...