State v. Jones

• Decision Date: 29 July 1935
• Docket Number: No. 4108.,4108.
• Citation: 48 P.2d 403,39 N.M. 395
• Parties: STATEv.JONES et al.
• Court: New Mexico Supreme Court

39 N.M. 395

48 P.2d 403

STATE

v.JONES et al.

No. 4108.

Supreme Court of New Mexico.

July 29, 1935.

Appeal from District Court, Dona Ana County; Frenger, Judge.

John Jones and F. C. Greenwood were convicted of offering to bribe and bribing a witness in a criminal cause, and they appeal.

Affirmed.

In prosecution for bribing witness, instruction on defendants' theory that the witness left the state because he feared an indictment against him held properly refused, since witness' leaving the state was not material, but material element of the crime was whether defendants attempted to obstruct justice.

R. C. Garland and R. R. Posey, both of Las Cruces, for appellants.

Frank H. Patton, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

ZINN, Justice.

A grand jury returned an indictment containing two counts. The first count charged appellants, and others, of attempting to intimidate one J. C. Rhyne, a witness in a cause pending in a justice of the peace court wherein appellant Jones was charged with the crime of assault with a deadly weapon upon J. C. Rhyne. The second count charged the same appellants with offering to bribe and bribing J. C. Rhyne, the witness.

Appellants were found guilty on the second count, and not guilty as to the first count. Judgment was rendered sentencing appellants to serve a jail term and pay a fine. From such judgment, this appeal is prosecuted. Five points are relied on for reversal.

Appellants contend that the court erred in refusing to admit testimony offered by appellants relating to the difficulty between witness Rhyne and appellant Jones, which resulted in the criminal charge of assault with a deadly weapon being lodged against Jones. It appears that the justice of the peace had testified to the fact that Rhyne had filed a complaint in his court charging Jones with having made an assault on Rhyne with a deadly weapon, to wit, a chair. W. D. Rhyne, a witness for the state had testified, not in response to any direct question, but voluntarily, as follows: “You want me to tell about what happened after the 12th-after J. C. Rhyne was knocked in the head by Jones?”

No objection was made by appellants to this testimony. No motion was made to strike the testimony. Appellants then offered to prove by a witness the facts in connection with the fight between Rhyne and Jones. This offer was objected to by the state as having no bearing upon the issues in this case. The objection was sustained by the court.

[1][2] Appellants contend that they were prejudiced by the above testimony in the eyes of the jury, and therefore should have been permitted to show the facts relating to the assault to refute the testimony of the state's witnesses, and also prove in this case that appellant Jones was not guilty of any assault with a deadly weapon, and therefore they could not be guilty of bribing or offering to bribe witness J. C. Rhyne to “stifle the truth.”

The testimony of the state's witnesses went in without objection. If the state's testimony was inadmissible and prejudicial to appellants, a timely objection would have prevented the receiving of such testimony. Having failed to object, appellants cannot claim an offsetting right to introduce objectionable testimony when resisted by the state.

The appellant's theory that the testimony was admissible to prove that the criminal charge against Jones was without foundation is untenable. The state does not have to prove that the defendant in the main case was guilty of the crime charged before it can proceed to prove the guilt of defendant on the charge of bribery. The converse is also true. The defendant cannot be permitted to prove his innocence of a crime charged in the main case, if brought to trial on another charge of having bribed or attempted to bribe a prospective witness in the main case. 46 C. J. 877.

As so aptly stated by the Supreme Court of Michigan, in a leading case: “The question in the instant case is not the guilt or innocence of the respondent in the main case, nor the sufficiency of the information or the jurisdiction of the court, but whether the respondent is guilty of obstructing or interfering with the administration of justice. In an examination of the authorities we find none in conflict with the authority above cited. [15 Enc. Pl. & Pr. p. 27.] In one of the earliest authorities, where the exact question was before the Supreme Court of the state of Vermont (in 1847), that court said [State v. Carpenter, 20 Vt. 9, 12]; Much of the argument at the bar has been expended upon supposed irregularities in the original proceedings against Goodale & Poor, and insufficiencies in the indictment against them prepared and laid before the grand jury. That indictment is not recited, and need not be in the present; it is not, consequently, before us. In offenses of this character guilt or innocence does not depend upon the guilt or innocence of the original party, against whom the witness may be subœnaed, or recognized, to appear, nor upon the sufficiency or insufficiency of the original indictment. To thwart or obstruct the due administration of justice by violence, bribery, threats, or other unlawful means, whether in preventing the attendance of witnesses, jurymen, or other officers of court, is a high-handed offense, which strikes at the vitals of judicial proceedings, and subjects to severe animadversion in every well-ordered community. The attempt to commit such an act, it is well settled, is itself a substantive offense, punishable by the common law.” People v. Boyd, 174 Mich. 321, 140 N. W. 475, at page 477.

[3] Appellants also claim that the state failed to prove a crime within the meaning of Comp. St. 1929, § 35-2804. They contend that to bribe a witness to absent himself from a trial at which the witness is to testify is not governed by the language of the statute, section 35-2804, which reads as follows: “Any person who gives or offers to give any bribe or consideration in money or otherwise to any witness, or to any person who is likely to become a witness in any cause pending, or is about to be brought in any of the courts of this state, to testify to any fact or to abstain from testifying to any fact in any cause, and any witness or person who is likely to become a witness who receives or agrees to receive any bribe or consideration to testify to any fact or to abstain from testifying to any fact in any cause, in any of said courts, shall be punished by a fine not to exceed five hundred dollars or by imprisonment not to exceed one year, or by both such fine and imprisonment as the court may direct.”

Appellants cite authorities to support their view. We are not impressed with the reasoning of the authorities cited or their applicability to a statute phrased as ours.

One who bribes or attempts to bribe a witness to leave the jurisdiction of the court to avoid giving evidence is guilty of obstructing public justice. This offense is one against the very object and purposes for which courts are established.

We quote from 8 R. C. L. 319: “While the cases are not numerous, it cannot be doubted that it is an indictable...