State v. Hall
| Decision Date | 24 December 1935 |
| Docket Number | 4063. |
| Citation | 55 P.2d 740,40 N.M. 128,1935 -NMSC- 097 |
| Parties | STATE v. HALL. |
| Court | New Mexico Supreme Court |
Rehearing Denied March 23, 1936.
Appeal from District Court, Rio Arriba County; Otero, Judge.
William Hall was convicted of murder in the first degree, and he appeals.
Reversed and remanded.
Gilbert & Hamilton, of Santa Fé, and Charles F. Fishback, of Fort Sumner, for appellant.
Frank H. Patton, Atty. Gen., and Edward P. Chase, Asst. Atty. Gen for the State.
The opinion filed October 3, 1935, is withdrawn, and the following is substituted therefor.
On the 24th day of July, 1934, William Hall was placed upon trial and convicted of murder in the first degree, and from the judgment and sentence of death pronounced upon the verdict this appeal is prosecuted. The killing occurred at the home of the defendant, and the fatal shot was fired by the defendant while he was in a storeroom Situate 27 feet from the cabin in which he lived, or while he was standing in the door of the storeroom. The deceased was on horseback in the yard, 40 feet away.
About 6 o'clock on the morning of June 21, 1933, A. W. Garver, a 14 year old boy, the son of deceased, met John Wesley Hall the 10 year old son of defendant, in defendant's pasture and after words passed between them, young Hall started running for a tree screaming for his mother. He testified that A. W. Garver, who was on horseback, was attempting to ride him down or run over him, and that he ran to the tree for protection. His mother arrived on the scene and attempted to catch hold of the bridle reins of the horse of A. W Garver. Later the defendant, on crutches, approached within 150 yards of the scene, and, according to the state's witnesses, threatened, with a rifle he was carrying, to shoot A. W. Garver off the horse, if he did not stop. A. W. Garver galloped home, some 500 yards away, reported to his father that the defendant had threatened to shoot him, whereupon the deceased saddled the horse, mounted, and took his son, A. W. Garver, on the horse behind him, and proceeded to the home of the defendant. There he met the wife of defendant, and his son, John Wesley, in the yard, asked for the defendant, and according to the testimony of A. W. Garver:
According to the testimony of the defendant, and his son, John Wesley, the deceased had called Mrs. Hall a vile name, and referring to the defendant had said: "Where is the crippled s-- of a b--, I will get him," and made a motion toward his pistol pocket, whereupon the defendant fired two shots from the door of the storeroom. The second shot inflicted the mortal wound, from which Garver died within an hour. According to undisputed testimony, deceased was a gunman, and had a bad reputation for peace and good order. These boys had had some trouble before, but there had been no serious dispute or bad blood between deceased and the defendant.
The counsel of defendant, in the trial court, agreed that instructions on first and second degree murder and voluntary manslaughter should be submitted. Instructions on these degrees were given, and the court also defined lying in wait. The learned trial judge, in conformity with the Rules of Pleading, Practice and Procedure, effective July 1, 1934, gave defendant's attorneys time and opportunity to examine the instructions before they were read to the jury. No objection thereto was made.
Other counsel now insist that defendant did not have a fair trial because of fundamental error committed by the trial court in its instructions defining murder in the first degree; that if the jury believed merely that all of the elements of second-degree murder were present, then under the court's instructions that was all that was necessary as a basis for a first degree verdict. Defendant's counsel further maintain that the trial court rule No. 70-108, effective July 1, 1934, reverses State v. Diaz, 36 N.M. 284, 13 P.2d 883, and is not applicable to the case at bar which was pending at the time of its adoption. N.M. Const. art. 4, § 34 reads as follows: "No act of the legislature shall affect the right or remedy of either party, or change the rules of evidence or procedure, in any pending case."
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.
The case at bar is not on all fours with the Diaz Case, but it is within the legal intendments of the rule there announced. There is little difference in the court failing entirely to instruct on a degree of murder and in giving a fundamentally erroneous instruction in differentiating between the degrees thereof.
The following are instructions of which the defendant complains:
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