State v. JONES
Decision Date | 26 April 1947 |
Docket Number | No. 4981,4981 |
Parties | STATE v. JONES. |
Court | New Mexico Supreme Court |
O. O. Askren, of Roswell, and Neil B. Watson, of Artesia, for appellant.
C. C. McCulloh, Atty. Gen., and Wm. R. Federici, Asst. Atty. Gen., for appellee.
This is an appeal from a judgment sentencing the defendant to serve a term in the state penitentiary upon conviction of the crime of murder.
It is first asserted that:
'The Court erred, while Morris J. Allen, the main eye witness for the State was being examined by the District Attorney, in overruling the objection made by counsel for the defense as follows:
As stated by appellant, it appears that the district attorney 'stood before the jury with a blackboard, and had the main (State's) witness indicate with a piece of chalk upon the blackboard the immovableobjects at the scene of the homicide and indicate with letters where the parties were at the time of the fatal difficulty.'
The blackboard plat was not introduced in evidence and if it had been it could not have been made a part of the record for review in this court. It is generally held that permission to use a blackboard to illustrate the testimony of a witness rests in the sound discretion of the trial court. State v. Sibert, 113 W. Va. 717, 169 S.E. 410; Cincinnati St. R. Co. v. Waterman, 50 Ohio App. 380, 198 N.E. 494. But this practice cannot be commended. State v. Cottrell, 56 Wash. 543, 106 P. 179; Anderson v. Commonwealth, 205 Ky. 369, 265 S.W. 824; Lancaster Hotel Co. v. Commonwealth, 149 Ky. 443, 149 S.W. 942.
The witness could just as conveniently have illustrated his testimony on paper, a copy of which could have been inserted in the bill of exceptions. If the action of the trial court prevented the making of a complete record for review so that the defendant was injured thereby, it was an abuse of discretion.
The district attorney, however, sensing the danger of error, placed the witness on the stand a second time and had him make the same illustrations of his testimony on paper, which was introduced in evidence. We are of the opinion that the appellant was not injured because of the use of the blackboard. In fact we are able to understand the situation of the parties and the objects described on the plat sufficiently, as no question of fact is involved.
The appellant states:
We fail to discover in the statement of the court any language injurious to the appellant or that 'belittled' the testimony of the witness Merchant. The trial court evidently was doubtful of the admissibility of the proffered testimony, and heard argument in the absence of the jury. The district attorney agreed that the testimony should be admitted, and the trial court admitted it. The assignment is without merit.
The appellant asserts that the trial court erred in refusing to give to the jury thefollowing tendered instruction: 'I charge you that, in weighing the evidence, if you should find beyond a reasonable doubt the defendant guilty of some degree, and are in doubt as to whether it is a higher or lesser degree, you should give the defendant the benefit of the doubt and convict him on the lesser degree than a higher degree.'
In regard to this requested instruction appellee states:
There is no question but that the great weight of authority favors the giving of the instruction in question. See McAfee v. United States, 70 App.D.C. 142, 105 F.2d 21, authorities therein cited and annotations in 20 A.L.R. at page 1258 et seq. This question was before the Texas Court of Criminal Appeals in Richardson v. State, 91 Tex.Cr.R. 318, 239 S.W. 218, 224, 20 A.L.R. 1249. On rehearing that court stated:
Regarding the necessity for this instruction, it was said in McAfee v. United States, supra [70 App.D.C. 142, 105 F.2d 31]:
'It is thought that the jury, unless the reasonable doubt requirement is made specifically applicable to doubt as to the degreeof the crime, may in confusion find the defendant guilty of a degree as to the existence of which they did have a reasonable doubt.'
'But the weight of authority supports the view that in such circumstances the court should tell the jury that in case they have a reasonable doubt from the evidence between two degrees they should convict of the lower only, and that it is not sufficient for the court to charge generally that the guilt of the defendant must be proved beyond a reasonable doubt.' 1 Reid's Branson Instructions to Juries, Sec. 57.
The cases of State v. Burrus and State v. Roybal, supra, cited by the appellees are not in point. The question here is regarding a reasonable doubt as between degrees of an offense. We do not find that this question has ever been raised before in this court.
Our attention is called to the fact that after the charge on munder in the first degree was given, the court instructed the jury as follows:
'If, * * * you entertain a reasonable doubt as to the truth of any one or more or all of the material allegations of the Information, under the charge of murder in the first degree, then you should find the defendant not guilty under said charge.
'* * * If you do not believe that the defendant shot, wounded and killed the said Edwin Hays under such circumstances as to constitute the crime of murder in the first degree, as already explained to you, or if you entertain a reasonable doubt from the evidence as to whether he did so, then you may consider whether the defendant is guilty of murder in the second degree.'
And at the end of the instructions on murder in the second degree the following appears:
'* * * If, you entertain a reasonable doubt as to the truth of any one or more, or all the material allegations of the Information under the charge of murder in the second degree, then you should find the defendant not guilty under said charge.'
* * *
'If you do not believe that the defendant shot, wounded and killed the said Edwin Hays under such circumstances as to constitute the crime of murder in the first or second degree, as already explained to you, or if you entertain a reasonable doubt from the evidence as to whether he did so, then you may consider whether the defendant is guilty of voluntary manslaughter.'
At the end of the instruction on manslaughter the court gave the following instruction: '* * * If, * * * you entertain a reasonable doubt as to the truth of any one or more...
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