State v. Hunt

• Decision Date: 19 March 1920
• Docket Number: No. 2341.,2341.
• Citation: 189 P. 1111,26 N.M. 160
• Parties: STATEv.HUNT ET AL.
• Court: New Mexico Supreme Court

26 N.M. 160

189 P. 1111

STATE

v.HUNT ET AL.

No. 2341.

Supreme Court of New Mexico.

March 19, 1920.Rehearing Denied June 8, 1920.

Syllabus by the Court.

It is within the discretion of the trial judge to admit in rebuttal, or at the time for rebuttal, facts and circumstances which are not strictly in rebuttal, and which should be, or might have been, offered in chief.

An additional instruction to the jury upon their reporting to the court their inability to agree, calling the attention of the jury to the expense to the county and the defendants of the trial, the length of time it had taken to try the case, and which told them it was their duty to agree if an agreement was possible without any juror violating his conscientious conviction, was not erroneous.

It is improper for the trial judge to have any communication with the members of the jury about the case on trial which is not in open court and in the presence of the defendant.

Appeal from District Court, Grant County; R. R. Ryan, Judge.

Samuel L. Hunt and Joseph S. Hunt were convicted of murder in the second degree, and they appeal. Reversed, and remanded for a new trial.

An additional instruction to the jury upon their reporting to the court their inability to agree, calling the attention of the jury to the expense to the county and the defendants of the trial, the length of time it had taken to try the case, and which told them it was their duty to agree if an agreement was possible without any juror violating his conscientious conviction, was not erroneous.

Edward R. Wright, of Santa Fé, Wilson & Walton, of Silver City, James S. Casey, of Tyrone, and Clifton Mathews, of Bisbee, Ariz., for appellants.

O. O. Askren, Atty. Gen., and N. D. Meyer, Asst. Atty. Gen., for the State.

ROBERTS, J.

This is an appeal from a conviction of murder in the second degree. Three grounds of error are relied upon for a reversal. The first is in the admission of certain evidence in rebuttal. The deceased, Chester Bartell, was killed by the appellants along a trail through the forests of Grant county. The killing was admitted, and self-defense was interposed as justification. In rebuttal two witnesses were permitted to testify to the finding of a bullet at the scene of the homicide more than six months after the date thereof, and the bullet was put in evidence. The objection made to the admission of this evidence upon the trial was that it was not proper rebuttal. This objection is urged here, and also it is further contended that the finding of the bullet more than six months after the homicide was so remote in point of time as to make evidence thereof inadmissible. This second ground is here urged for the first time, and, under the well-established rule, is not available to the appellants.

[1] As to the question as to whether there was error in the admission of this evidence in rebuttal when it should have been put in in chief, it is well settled that it is within the discretion of the trial judge to admit in rebuttal, or at the time for rebuttal, facts and circumstances which are not strictly in rebuttal and which should be or might have been offered in chief. 16 C. J. 868; Goldsby v. United States, 160 U. S. 70, 16 Sup. Ct. 216, 40 L. Ed. 343; State v. Riddle, 23 N. M. 600, 170 Pac. 62.

[2] After the jury had deliberated for approximately 18 hours without arriving at a verdict, and had then been called into court and interrogated by the judge, and in response to his inquiries had informed him that they stood then as they had stood since their first ballot, the judge gave to the jury the following instruction:

“Gentlemen of the jury, upon your report that you are unable to agree in the cause which has been submitted to you, I feel it my duty to direct you to consider the case further in an effort to reach an agreement. I instruct you that this case has occasioned a great deal of trouble and involved great cost alike to Grant county and the defendants. It has taken up over a week of the time of this court. It is important, therefore, both to the state and to the defendants, that you arrive at some verdict. You should agree upon a verdict. No juror, from mere pride of opinion hastily formed or expressed, should refuse to agree, nor should any juror surrender any conscientious conviction founded on the evidence and the instructions allowed and given by the court. It is the duty of each juror to reason with his fellows concerning facts in the case and the application of them to the instructions of the court with an honest and fearless desire to arrive at the truth and with a view to reaching a verdict. It should be the object of all of the members of the jury to arrive at a verdict and to that end to deliberate together with calmness, reason, and fairness. It is your duty to agree upon a verdict, if such an agreement be possible, without any juror violating his conscientious conviction. I instruct you that you should so agree without any juror violating his conscientious convictions, but let such juror reason honestly with himself whether his opinion expressed in the jury room is a conscientious conviction, based upon the facts in the case and the law as given by the court, fairly, honestly, and fearlessly considered; and you should understand very clearly that such a conviction is not determined in any wise by regard for any personal consideration involved, whether of friendship or business; and no juror should consider what may be the probable result upon any personal interest of his of the verdict that might be agreed upon. If he is guided by such personal interest, he is not faithful to the oath he has solemnly taken in this court. To aid you in further consideration of the case, I instruct you that, although the verdict to which a juror agrees must of course be his own verdict, the result of his own convictions not a mere acquiescence in the conclusion of his fellows, yet, in order to bring 12 minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other. You should consider that the case must at some time be decided, that you are selected in the same manner and from the same source from which any future jury must be, and there is no reason to suppose that the case will ever be submitted to 12 men more intelligent, more impartial, or more competent to decide it, or that more and clearer evidence will be produced on the one side or on the other. And, with this in view, it is your duty to decide the case if you can conscientiously do so. In conferring together, you ought to pay a proper respect to each other's opinions, and listen, with a disposition to be convinced, to each other's arguments, and, on the other hand, if the larger number of your panel are for conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one, which makes no impression on the minds of so many men, equally honest, equally intelligent with himself, and who have heard the same evidence, with the same attention, and with an equal desire to arrive at the truth, and under the sanction of the same oath. And, on the other hand, if a majority are for the defendants, the minority ought seriously to ask themselves whether they may not reasonably and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated, and distrust the weight and sufficiency of that evidence which fails to carry conviction to the minds of their fellow jurors.”

Before submitting this instruction to the jury, a copy of it was handed to counsel for appellants, and they stated the following objection to the giving of the instruction:

“Defendants at this time object to the giving of the additional instruction to the jury for the reason that such instruction does not state the law, in that it directs the jury to consider matters other than the evidence adduced upon the trial of this cause in arriving at their verdict, in that it is calculated and intended to give the impression that each juror should regard the opinion of the greater number of jurors as entitled to more weight and consideration than the opinion of the smaller number of jurors; that those who are in the minority should renounce their convictions and give way to the opinion of those who are in the majority, merely because of such preponderance of numbers, in that it seeks a verdict which is not in truth and in fact the individual verdict of each and every juror, in that under the existing circumstances it amounts to a coercion of the jury, in that it is highly prejudicial to these defendants.”

If the language in the instruction by which the trial court denounced as unfaithful to his oath any juror who in forming or adhering to an opinion was influenced by personal considerations of friendship or business was calculated to coerce or intimidate the jurors, of course, the instruction would be erroneous. But it will be observed that this ground of objection was not urged in the court below, and, according to the authorities, this is the only possible error in the instruction. In the case of Territory v. Donahue, 16 N. M. 17, 113 Pac. 601, an instruction given under similar circumstances, and which went almost as far as this instruction, was approved by the territorial Supreme Court. The instruction here went further in this; it called the attention of the jury to the expense to the county and the defendants of the trial, the length of time it had taken to try the case, and told them repeatedly that it was their duty to agree if an agreement was possible, without any juror violating his conscientious conviction, and further as above pointed out. The general rule is that the trial court may detail to the jury the ills attendant on a disagreement, the expense, the length of time it has taken to try the case, and that the case will have to be decided by some...