State v. Kidd
| Decision Date | 24 August 1917 |
| Docket Number | 1886. |
| Citation | 175 P. 772,24 N.M. 572,1917 -NMSC- 056 |
| Parties | STATE v. KIDD. |
| Court | New Mexico Supreme Court |
On Rehearing, November 12, 1918.
Syllabus by the Court.
Appellant was convicted of voluntary manslaughter. According to his own testimony and that of others, he was assaulted with a deadly weapon, a pistol, and threatened with immediate death. There was evidence tending to show previous illicit relations between appellant and the wife of deceased. Under such circumstances it was not error to submit to the jury the issue as to the guilt of the defendant of voluntary manslaughter, and the proof was sufficient to support such a verdict. All that is required to reduce a homicide from murder to voluntary manslaughter is such heat of passion arising from such adequate provocation at the time as to excite in the mind such emotions as anger, rage, sudden resentment, or terror as may be sufficient to obscure the reason of an ordinary man, so as to prevent deliberation and premeditation and to exclude malice, and to render the slayer, acting as an ordinary man, incapable of cool reflection.
The error in admitting a photograph in evidence which has not been accounted for is waived by a subsequent admission by the party concerned of its genuineness.
Appellant was charged by the mother of the deceased with illicit relations with the wife of the deceased, and he failed to deny the same. The evidence was correctly received by the court as an admission by silence. In overruling an objection to the evidence, the court stated that he admitted it on the theory of an admission by silence, and that he regarded the silence of appellant as of great importance. While exception to the remarks was taken, no motion to withdraw the remarks from the jury was made. It is held, for that reason that no available error intervened.
Where counsel object to a question calculated to qualify a witness to speak to a certain point, and have opportunity given them by the court to disqualify the witness, but failed to do so they cannot complain of his testimony.
A witness was allowed to testify that one of the defendants was a go-between between appellant and the wife of the deceased. In so testifying the witness was detailing the reasons she had for ordering the man away from her hotel, and gave all of the facts upon which she based her inference that he was a go-between. It is held that the admission of this evidence was harmless error under the circumstances.
A witness testified for appellant that he was in the hotel in front of which the homicide occurred; that he heard a shot and then went to the door and saw the deceased in the act of picking up a six-shooter from the ground, and the appellant in the act of drawing his pistol from his pocket. He was asked on cross-examination whether, shortly after the killing, the mother of the deceased did not, in the presence of his mother and a Mrs. Farmer, upbraid him for not going to the assistance of her son and saving him from death, and whether Mrs. Farmer did not then say that the mother of the deceased must not blame the witness for the reason that the witness' mother was holding him, and that he could not go out under the circumstances. The mother of the deceased was put on in rebuttal and testified to such conversation. It is held that the testimony was admissible on the theory that the circumstances placed before the witness were such as to call for a denial if the statements were untrue, and reflected upon the truth of the testimony of the witness at the trial.
A witness was asked whether he, on a certain occasion, made a certain admission concerning his knowledge of the homicide. He was then asked if he made the same admission to another person, and then asked whether he made the same admission to two other persons. Held, that the occasion of the admission was sufficiently identified for the purpose of the impeachment.
Where the context of a question shows that the time referred to must have been just after the homicide, instead of just before, as it appears in the transcript, complaint of the incompetency of the evidence will not be heard on that ground.
The court erroneously rejected testimony as to the animosity of two witnesses against appellant on the ground that they had not been interrogated on the subject when on the stand. It appears, however, that two other witnesses had testified, without objection or contradiction, to the facts upon which the animosity was predicated. It is held, under the circumstances, the facts being undisputed, and the evidence being merely cumulative, that the error was immaterial.
Two cartridges, suitable for use in the gun of the deceased, and unsuitable for use in the gun of appellant, were found in front of the hotel where the homicide occurred, two days after the homicide, and were offered by appellant. The circumstances were such that the deceased had no opportunity to unload his 45 Colt's six-shooter during the controversy, and no proof was offered that he did in fact afterwards unload the gun. It is held that the court properly excluded the cartridges for want of relevancy.
A witness testified to a dying declaration by deceased when he was conscious and knew of his imminent and impending death, according to the witness. Counsel, for exclusion of the declaration, relied upon the testimony of physicians to the effect that the deceased was in a semicomatose state both before and after an operation for the wounds upon him, but did not seek, by cross-examination, to disqualify the declaration. Under such circumstances the declaration was properly admitted.
A witness testified as to statements made by a codefendant as to the circumstances of the killing. No application was made to have the evidence limited to the codefendant, and the evidence at the time it was admitted was competent against the codefendant. Under such circumstances, no complaint can be made here by appellant.
Counsel must object to questions calling for objectionable testimony, and a subsequent motion to strike the same may be properly refused.
Where counsel, although given opportunity by the court, failed to cross-examine a witness sufficiently to destroy the foundation for secondary evidence of the contents of a letter, they cannot be heard to complain of the admission of such secondary evidence.
Additional Syllabus by Editorial Staff.
Where defendant's witness testified that he saw deceased picking up a six-shooter, and defendant then drawing a pistol from his pocket, and did not claim to have left the house to assist deceased, testimony that he was reproached by deceased's mother for not assisting deceased, and that a person present had said that he should not be blamed, admitted because calling for denial by witness and as reflecting upon his credibility, was irrelevant.
In a prosecution for murder the erroneous admission of irrelevant evidence to discredit defendant's principal witness, and his only witness on a material point, was prejudicial, and entitled defendant to a reversal.
Appeal from District Court, Mora County; D. J. Leahy, Judge.
Oscar Kidd was convicted of voluntary manslaughter and he appeals. Reversed and remanded, with instructions to grant a new trial.
H. W. Clark, of San Francisco, Cal., and S. B. Davis, Jr., of East Las Vegas, for appellant.
H. S. Bowman, Asst. Atty. Gen., for the State.
The appellant, together with one Bert Jay, was indicted for the murder of Paul Tyler. Jay was acquitted and the appellant was found guilty of voluntary manslaughter. He brings this appeal.
It appears that Jay and appellant were in the town of Roy on October 14, 1915, and were preparing to leave the town for the ranch where they were then living. They hitched their team to a wagon loaded with supplies, and left it near the Tyler Hotel, which was conducted by the father and mother of the deceased. They went to the hotel for the purpose of getting some articles which they had left in the room they had occupied. Upon arriving at the hotel they were met by Sam Tyler, the father of the deceased, to whom they stated what they wanted, and he told them to wait until he could go upstairs and get them the articles. Mrs. Sam Tyler came out of the hotel before her husband started upstairs to get the articles. She testified that as her husband was going for the articles, and after he was out of her sight, her son, the deceased, stepped out of the hotel and walked up to Bert Jay and ordered him off the premises, and that he spoke to the appellant and told him that he had been ordered away from there long ago and that he had come back, and that they had hot words; that thereupon the appellant pulled his gun and shot the deceased and then shot again; that the deceased was weakened physically by the shots, and staggered back and fell when he finally succeeded in pulling his gun, and Jay rushed in and knocked it out of his hand; that the deceased's hands were hanging down, a cigarette in one of them, his gun untouched, at the time the shooting began.
The appellant and Tyler both testified to an entirely different state of facts. They both testified that the deceased, when he came out of the hotel, walked up to the appellant, pulled his gun, and said to him, "Oscar Kidd, I am going to kill you, you God damned son of a bitch!" that Jay thereupon reached to catch the gun of the deceased, but missed it and struck the deceased's arm, causing him to drop the gun; that he and the deceased both reached for the gun, but that the deceased got it first. They both testified that appellant did not pull his gun until after the deceased pointed his gun at appellant; that he did not shoot until after the gun had been knocked out of the hand of the deceased and until h...
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