State v. Hawkins

• Decision Date: 24 October 1919
• Docket Number: 2344.
• Citation: 184 P. 977,25 N.M. 514,1919 -NMSC- 068
• Parties: STATE v. HAWKINS.
• Court: New Mexico Supreme Court

184 P. 977

25 N.M. 514, 1919 -NMSC- 068

STATE v. HAWKINS.

No. 2344.

Supreme Court of New Mexico

October 24, 1919

Syllabus by the Court.

Alleged improper remarks of counsel in his argument to the jury, not made a part of the record on appeal by bill of exceptions will not be considered.

Where a witness has testified as to the general reputation of the accused, it is competent to inquire of him, on cross-examination, as to whether he has heard reports of particular instances which are inconsistent with the reputation to which he has testified and the character which he has attributed to him.

Appeal from District Court, Union County; T. D. Lieb, Judge.

George Hawkins was convicted of assault with a deadly weapon with intent to kill, and he appeals. Affirmed.

M. B Keator, of Tucumcari, and Toombs & Taylor, of Clayton, for appellant.

N. D Meyer, Asst. Atty. Gen., for the State.

PARKER C.J.

The appellant, George Hawkins, was found guilty of asault with a deadly weapon with intent to kill, in the district court for Union county, and from the sentence imposed upon him has perfected this appeal.

1. Objections are made by appellant's counsel to the alleged remarks of counsel for the state in his argument to the jury. The Assistant Attorney General contends that the proposition cannot be considered on this appeal because the remarks, if made, were not incorporated in the record by way of bill of exceptions but appear in the transcript as part of the motion for a new trial. He is right in that contention. In State v. Balles, 24 N.M. 16, 172 P. 196, we said:

"Alleged remarks of the trial court *** will not be considered when the same have not been authenticated by having been made a part of the record by bill of exceptions."

The doctrine there announced is analogous to that which applies in this case, being founded upon the same premise. The argument of counsel to which objection is made, not having been properly incorporated in the record on appeal, we will not consider the same.

2. S B. Oliver, a witness for appellant, testified that the reputation of the appellant, for truth and veracity and as a law-abiding citizen, in the community in which he lived, was good, adding, "I have never heard any one speak to the contrary." The record of the cross-examination of the witness on this subject is as follows:

"Q. Did you ever hear about Mr. Broom losing a cow that was found under the haystack? Mr. Toombs: We object to that *** as incompetent, irrelevant, and immaterial, and has no bearing on this case whatsoever. The Court: He may answer. Mr. Toombs: Exception. Q. Did you ever hear about that? A. Yes. Q. The neighbors talked about that a good deal, didn't they? A. No, sir; I never heard but one speak of it. Q. Who did he say was responsible for putting the cow under the haystack? Mr. Toombs: We object to that as leading, incompetent, irrelevant, and immaterial, and has no bearing on the issues of this case. The Court: He may answer. Mr. Toombs: And not proper cross-examination. Exception. A. Well, he said Mr. Hawkins, the man that was telling me, from what he had heard. Q. Then you have heard to the contrary about the good reputation of Mr. Hawkins? A. Well, in that one particular, I reckon I have."

Counsel for the appellant argue that the evidence was inadmissible because it tended to show that the accused had committed a crime distinct from that for which he was being tried.

There are three good answers to the objection of the appellant to the evidence. The objection was not sufficiently specific to raise the proposition argued here. In the second place, the witness said that he had never heard anything to the contrary of appellant's good reputation, and an examination of the witness as to the truth and accuracy of that statement was proper. But we place our decision of the proposition upon the ground that, where a witness has testified as to the general reputation of the accused, it is competent to inquire of him, on cross-examination, as to whether he has heard reports of particular instances which are inconsistent with the reputation to which he has testified and the character which he has attributed to him. The subject is fully discussed in 2 Wigmore on Evid. § 988. The author says:

"The settled rule against impeachment by extrinsic testimony of particular acts of misconduct *** is to be distinguished in its application from a kind of questioning which rests upon the principle that the witness' grounds of knowledge *** may be inquired into. When witness A is called to support the character of B. (either as a witness or as the accused), by testifying to his good reputation, that reputation must signify the general and unqualified consensus of opinion in the community. *** Such a witness virtually asserts either (a) that he has never heard any ill spoken of him or (b) that the sum of the expressed opinion of him is favorable. Now

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