State v. Johnson.

• Decision Date: 03 April 1918
• Docket Number: No. 2148.,2148.
• Citation: 172 P. 189,24 N.M. 11
• Parties: STATEv.JOHNSON.
• Court: New Mexico Supreme Court

24 N.M. 11

172 P. 189

STATE

v.JOHNSON.

No. 2148.

Supreme Court of New Mexico.

April 3, 1918.

Syllabus by the Court.

The good character of the deceased is not a subject of proof in a prosecution against another for killing him, where his character had not been attacked by the defense.

It is not error to refuse a continuance on the ground of surprise at the introduction of evidence, when the defendant should, from the nature of the case, naturally expect or anticipate the evidence, or when by law he is chargeable with knowledge that such evidence would be properly competent.

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

Grover C. Johnson was convicted of murder in the second degree, and he appeals. Affirmed.

The appellant, Grover C. Johnson, was indicted charged with the murder of one Noble A. Hypes, the trial resulting in a conviction of murder in the second degree.

It appears from the record that the deceased on the 21st day of July, 1916, went to the home of the defendant during his absence and at a late hour in the evening. As to what took place on the occasion in question is not clear from the record, though the wife of the defendant testified that the deceased insulted her. Upon her husband's return to the house, on being informed of the alleged remarks of the deceased, he set out in search of Mr. Hypes, and upon finding him assaulted him in an aggressive manner. As a result of this assault, the deceased died the following day. The court sentenced the defendant to a term of from 12 to 15 years in the penitentiary, from which judgment this appeal is prayed.

The good character of the deceased is not a subject of proof in a prosecution against another for killing him, where his character had not been attacked by the defense.

C. A. Spiess, of East Las Vegas, and H. B. Woodward, of Clayton, for appellant.

C. A. Hatch, Asst. Atty. Gen., for the State.

HANNA, C. J.

[1] The first and only important question raised is that the court committed error in permitting the state to prove the general reputation of the deceased for morality and decency. The state was permitted to introduce a number of witnesses in rebuttal who testified to the good reputation of the deceased in this respect. Objection was interposed to the introduction of this evidence upon the ground that it was not proper rebuttal. The gist of the theory advanced by the defendant was that the deceased had insulted his wife, as a result of which he had committed the assault in question. The theory of the state was that the deceased did not make the insulting remarks and was not the kind of a man to make such remarks. The record discloses that the wife of the defendant gave testimony tending to bring into question the reputation of the deceased when she testified concerning the conversation which she had overheard between her sister and a Mrs. Lambert to the effect that the deceased had on a former occasion run Mrs. Lambert away from her home. Counsel agree that:

“The good character of the deceased is not a subject of proof in a prosecution against another for killing him, where his character had not been attacked by the defense.”

The rule is thus stated in Wharton on Homicide (3d Ed.) § 269. See, also, 3 Bishop's New Criminal Procedure, § 612.

The appellant contends that the testimony of Mrs. Johnson is but incidental comment of the witness relating to the conversation overheard by her as to the conduct of the deceased on a particular occasion. We cannot agree, however, with appellant in his contention in this respect. The testimony of the witness would apparently tend to prove that the deceased was in the habit of running women away from...