State v. Jackson.

• Decision Date: 30 June 1924
• Docket Number: No. 2840.,2840.
• Citation: 30 N.M. 309,233 P. 49
• Parties: STATEv.JACKSON.
• Court: New Mexico Supreme Court

30 N.M. 309

233 P. 49

STATE

v.JACKSON.

No. 2840.

Supreme Court of New Mexico.

June 30, 1924.Rehearing Denied Feb. 27, 1925.

Syllabus by the Court.

Evidence reviewed, and held sufficient to sustain a verdict of murder in the second degree.

If it is shown that the accused has had an opportunity to cross-examine a witness at a preliminary hearing, the testimony of such witness may be read at the trial upon it being satisfactorily shown to the court that the witness is dead, insane, or cannot with due diligence be found within the state. The admission of such testimony is not in conflict with a constitutional guaranty that the accused “shall have the right” to be confronted by the witnesses testifying against him.

Evidence offered as foundation for admission of testimony of witness given at the preliminary hearing considered and deemed sufficient. Further held, that whether or not a satisfactory showing has been made is a matter within the discretion of the trial court, and this court will not interfere with the trial court's exercise of discretion provided it is not abused. Identity of cause in which witness testified at preliminary hearing held sufficiently shown to warrant admission at trial.

Assignment that there was not due process of law, because record does not disclose verdict of the jury, will not be considered where the record shows final judgment and sentence.

Under the circumstances disclosed in the evidence, it was not error to permit a witness to testify that a gun would or would not make an imprint if it had fallen a distance of 12 inches.

Objections to testimony of accused as to a conversation alleged to have been had with a codefendant properly sustained.

Not error to refuse requested instructions not applicable to issues raised by the testimony.

Under evidence adduced, held sentence of 90 to 99 years not excessive.

Appeal from District Court, Quay County; Leib, Judge.

Orin B. Jackson was convicted of murder in the second degree, and he appeals. Affirmed.

Sentence of 90 to 99 years upon conviction of murder in second degree, held not excessive.

Renehan & Gilbert, of Santa Fé, for appellant.

M. J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.

HATCH, District Judge.

The appellant, Orin B. Jackson, and two codefendants, Brent Cosner and Jack Lewis, were indicted March 14, 1922, in Quay county, N. M., the indictment charging the defendants with the felonious killing of Royal W. Lackey. The defendants were jointly tried at the September, 1922, term of the district court of Quay county. Cosner and Lewis were acquitted. Jackson was convicted of murder in the second degree, and sentenced to a term in the penitentiary of not less than 90 nor more than 99 years. From the judgment and sentence of the lower court, the defendant has appealed to this court.

[1] From the transcript the following facts appear:

On Saturday before the homicide, one W. K. Bell and Brent Cosner were at the Jackson camp in Quay county. After they had eaten supper the deceased, Roy Lackey, came to the camp. He ate supper, and they all went to bed about 8 o'clock, Bell and Lackey occupying the same bed and Cosner another. Later in the evening, about 10 o'clock, Jackson and Lewis arrived at the camp. They brought with them two guns, a Winchester and a shotgun. After their arrival at the camp there was some drinking, all men taking a few drinks.

The following morning all ate breakfast together, and Jackson, Lewis, and Lackey rode off toward the north abreast. This was Sunday morning. Shortly after they left the ranch, Jackson returned and procured some whisky.

The appellant and his brother owned the ranch where the killing occurred, Lackey, the deceased, had a homestead claim, and at the time was ranging about 150 head of cattle within the Jackson pasture.

It appears that one Dave or D. L. Snyder, on the morning of the homicide, left the Oden ranch where he was working, starting for Roy Lackey's place. About 9 o'clock he met Lewis and Cosner, who told him they would show him Lackey's home. They then rode north until they saw Jackson and Lackey. Just before the three men, Lewis, Cosner, and Snyder, met Lackey and Jackson they observed the two men pointing their pistols at them. They rode on until they came up with Jackson and Lackey, at which time Jack Lewis got down from his horse and took a bottle out of Jackson's pocket. Jackson then turned and drew his gun on Snyder, and, with offensive language, ordered him off his horse. He then made Snyder drink. Brent Cosner then introduced Snyder to Lackey and Jackson, and Snyder told them his business; that he was searching for a cow when he met Cosner and Lewis. Thereupon Jackson made him take another drink of whisky, and said that he (Snyder) had accused Roy Lackey of stealing his cow. Several things then occurred, Jackson drawing his gun again, and making Snyder drink; swearing him at one time not to tell his employer, Mr. Oden, what had happened, and a minute later making him swear he would tell what had happened. He (Jackson) waved his gun around in what appellant says was a playful manner, but in which we fail to see the humor. At one time he shot down at Snyder's feet and jerked him back and forth. Roy Lackey, the deceased, then told Jackson to put up his gun, and thereupon the appellant waved his gun around his head and told Lackey to stand back or he would kill him. Lackey stood still, but Brent Cosner stepped in front of Jackson and started to say something. Jackson struck Cosner across the chest with his gun. Cosner then knocked Jackson down and grabbed him by the wrists. Jack Lewis jumped down from his horse and grabbed Jackson's gun. Snyder reached for the reins of his horse and Lackey gave him a nod to go on to his (Lackey's) house. Snyder immediately mounted his horse and rode away. A minute, or even less, after Snyder left, he heard two shots coming from the direction of the place where he had left the men. He did not turn back, but continued on his way. This was about 9:30 Sunday morning.

No one appears to have seen any of the men after Snyder left them until about 11 o'clock in the morning, when Brent Cosner returned to the camp. The witness Bell testifies that Cosner came to the camp about 11 o'clock Sunday morning. Cosner did not remain at the camp, but immediately remounted his horse and rode away in a westerly direction. Later, Jack Lewis arrived at the camp and inquired for Brent Cosner. Upon ascertaining the direction Cosner had gone from the camp, Lewis also rode away, going in the same direction Cosner had gone. About 12 o'clock the three men, Cosner, Lewis, and Jackson, came riding back to the camp together from the north. When they arrived at the camp, Jackson got off his horse and walked to the barn, which was about 180 feet away. Cosner and Lewis went in the house. Late in the evening the appellant came to the ranch house. He had remained out of sight all day. When Jackson came to the house he ate some tomatoes and then went out to the well, where he sat on a piece of pipe sticking out of the water trough, sitting in a stooped position with his head down. While the appellant was sitting at the well, the witness Bell went out and talked with him, asking him where Roy (meaning the deceased, Roy Lackey) was. Appellant replied that he had left Roy driving a cow. This was about the entire conversation. This conversation is denied by the appellant, but the jury evidently disregarded his story.

About dusk the three men, Jackson, Cosner, and Lewis, left the camp, Jackson and Lewis driving in one automobile and Cosner in another. Before leaving the ranch, Brent Cosner told Bell to wait at the camp until he returned; that he would be back about 9 o'clock Monday morning, and for Bell to keep up a horse for him, and they would ride the pasture together. The evidence of Jackson shows that he went to the ranch in Texas, close to the town of Vega. When informed by his brother that the sheriff of Quay county was in Vega looking for him, he went to Vega and surrendered, returning to New Mexico without requisition. However, this was two or three days after the shooting, and none of the men reported the shooting to the officers.

The morning following, Bell waited for Cosner, but, Cosner, not coming back, he (Bell) rode away before Cosner returned. Bell had gone about 10 or 12 miles north of the camp when he discovered Roy Lackey's horse. The horse had his saddle and bridle on, the reins dropped on top of a bush. The witness testified that the horse was in a bad condition, “drawed terrible bad, jaded, and gaunt.” The condition of the ground about the horse was “tromped up some.” The witness went south from the place where he found Lackey's horse and then went to the White place, where he met one Taylor Lytton. From there he went to Lackey's home. From Lackey's residence, Bell was accompanied by Margaret Lackey, daughter of the deceased, and Joe Talmadge. The three of them rode back to the place where the horse was found and began looking the country over for Roy Lackey. After the three had searched for some time without success, Margaret Lackey went for the officers, and Bell and Talmadge continued their search for the deceased.

The two men found the body of Roy Lackey about three-quarters of a mile from the place his horse was first seen. Lackey was lying with his head to the south, feet to the north, on his back, arms stretched out. The physician testified that he found the following wounds in the body of the deceased:

“A gunshot wound entering the left breast about an inch above the left nipple, very nearly on a line with the nipple, at an angle of about forty-five degrees, and coming out on the right side in front of the kidney, over the hip bone. * * * A deep cut wound began at the inner portion of the right eye and extending around to the outer portion, the eyeball being lifted completely out of the socket.”

The...