State v. Kile.

• Decision Date: 27 August 1923
• Docket Number: No. 2517.,2517.
• Citation: State v. Kile, 29 N.M. 55, 218 P. 347, 1923 NMSC 68 (N.M. 1923)
• Parties: STATEv.KILE.
• Court: New Mexico Supreme Court

29 N.M. 55

218 P. 347

STATE

v.KILE.

No. 2517.

Supreme Court of New Mexico.

Aug. 27, 1923.

Syllabus by the Court.

A recital in the record by one district judge that he is sitting at the request of the regular judge of the court, under the provisions of section 15, art. 6, of the Constitution, is sufficient evidence to show jurisdiction to act, although the better practice would be to have the record show the fact of such request by the regular presiding judge.

An adjournment of the district court“until court in course” is an adjournment of the court, and not an adjournment of the term of court.

The summoning of talesmen to complete the panel of the grand jury from precincts in proximity to the place where the court is being held is proper, under the provisions of section 13, c. 93,Laws 1917.

Evidence of the details of a difficulty between the deceased and the wife of the defendant, occurring in the absence of the defendant, was irrelevant and incompetent, and was improperly admitted.The only competent evidence on the subject was as to what was communicated to the defendant by his wife concerning the difficulty prior to the homicide.

Where the state introduces, over the objection of defendant, incompetent evidence, and it becomes expedient or necessary to rebut the same, in order to avoid unfair prejudice, which might otherwise arise from the original evidence, resort may be had to the same class of objectionable evidence, without waiving the original error.State v. Kidd, 24 N. M. 572, 175 Pac. 772, distinguished.

A party is bound by the answers of a witness upon cross-examination upon a collateral and immaterial issue.

The issue as to this bias, prejudice, or interest of a witness is not a collateral issue, and the witness may be cross-examined and impeached upon his testimony reflecting thereon.

It is inadmissible to impeach a witness upon a collateral and immaterial issue.

Where there is evidence of adequate cause for heat of passion, and evidence from which the actual existence of heat of passion may be inferred, and where it may be inferred from the evidence that the defendant was so overwhelmed by such heat of passion as not to be able to entertain cool and deliberate malice, it is error to restrict the issue to murder in the first degree, but the issue of murder in the second degree must also, upon request, be submitted to the jury.

Appeal from District Court, Valencia County; Ryan, Judge.

George L. Kile was convicted of murder in the first degree, and he appeals.Reversed and remanded for new trial.

Where the state introduces, over the objection of defendant, incompetent evidence, and it becomes expedient or necessary to rebut the same, in order to avoid unfair prejudice, which might otherwise arise from the original evidence, resort may be had to the same class of objectionable evidence, without waiving the original error.

A. A. Sedillo and George S. Klock, both of Albuquerque, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

PARKER, C. J.

Appellant was tried and convicted of murder in the first degree, and has brought the case here by appeal.

At the threshold of the inquiry a question is presented as to whether the court below proceeded without jurisdiction at the time of the finding of the indictment.It appears from the transcript that the regular term of the district court of Valencia county, where appellant was indicted and tried, began on the 3d day of March 1919, and continued in session until March 13, 1919, when the following order of adjournment of the court was made and entered, namely:

“It is ordered that the court do now adjourn until court in course.”

There had been no grand jury impaneled up to this time, but a petit jury had been in attendance upon court, and on March 11th, the following order had been made and entered of record, namely:

“It is now ordered by the court that the members of the petit jury be, and they hereby are, excused until the 19th day of May, and that they be, and hereby are, allowed the amounts set opposite their names for services and for miles traveled in coming from and returning to their homes, to wit: [There followed a list of the names and the amounts allowed to the petit jurors.]”

On April 30, 1919, there appears the following order:

“Court met pursuant to adjournment, Hon. M. E. Hickey, judge of the Second judicial district of the state of New Mexico, sitting at the request of Hon. M. C. Mechem, judge of the Seventh judicial district, state of New Mexico.* * * It now appearing to the court that it is necessary to have a grand jury at this the March term of the district court, whereupon now the court draws from the jury box of Valencia county, state of New Mexico, the names of 27 persons, from whom to select a grand jury for the present term of court, to wit: [Here follows the names of the grand jurors drawn.]And it is ordered by the court that venire issue for said persons, returnable on the 19th day of May, A. D. 1919, at 10 o'clock of the forenoon of said day, then and there to serve as grand jurors, which is accordingly done.”

The court then adjourned until court in course.On May 19, 1919, the court met.Hon. Raymond R. Ryan, judge of the Sixth judicial district, presiding and sitting at the request of Hon. M. C. Mechem, judge of the Seventh judicial district, and thereupon the grand jury was in due course organized, and returned in due time the indictment in this case.

A motion to quash the indictment was interposed by appellant, and was based upon two propositions.The first is that, at the time Judge Hickey drew the names of the grand jurors from the box and issued the venire for them, the term of the court had been continued until May 19, 1919, and that therefore his action was coram non judice; second, it is argued that Judge Hickey had no authority to issue the venire.The motion to quash the indictment was overruled, and a subsequent plea in abatement was interposed, raising the same propositions, which plea, having been heard upon an agreed statement of facts, was denied.

[1] 1.The second objection to the indictment, above set out, is based upon the theory that one district judge, sitting for another district judge at the latter's request, as provided by section 15 of article 6 of the Constitution, has no jurisdiction to act, in the absence of a record entry showing the request so to do.We do not understand counsel to contend, or to have urged in the court below, that as a matter of fact Judge Hickey had not been requested by Judge Mechem to hold court at Los Lunas.No showing to that effect was attempted in any way.We understand the contention to be simply that the record does not show the fact of the request.The argument is not sound.In the first place, the record contains a recital to the effect that Judge Hickey sat at the request of Judge Mechem.This is a certificate by a district judge to the effect that he had been requested to act, and acted in pursuance of the request.It is true that the judge of the court himself did not make a formal certificate of the request; but, in the absence of a showing that he had not made the request, this court feels bound to accept the certificate of Judge Hickey that he had been so requested.The better practice, perhaps, would be for a district judge to put upon the record an order or certificate that he had requested another judge to sit in his stead; but, under all the circumstances, we think the jurisdiction of Judge Hickey to act in selecting the grand jury is sufficiently shown by the record.

[2] 2.The first objection to the indictment is based upon the proposition that the term of the court had been on March 13 adjourned until May 19, 1919, and that therefore the action of Judge Hickey in selecting the grand jury was not taken during an existing term of court, and was consequently without jurisdiction.Counsel concedes that we held in Henry v. Lincoln Luchy & Lee Min. Co., 13 N. M. 385, 85 Pac. 1043, that the language “until court in course,” employed in this connection, means that the court, and not the term, has been adjourned, and that in the absence of an adjournment of the term of court it continues right along for such business as may come before it.See, also, Weaver v. Weaver, 16 N. M. 98, 113 Pac. 599, andCoulter v. County Commissioners, 22 N. M. 24, 158 Pac. 1086.They argue, however, that, by reason of the provisions of section 26 of chapter 93,Laws 1917, and the action of the court in excusing the petit jury until May 19, the term of the court was thereby adjourned until that date.This seems to us to be an erroneous view of the matter.We could not so hold without reading into the order of adjournment something which does not appear.The argument is based upon the terms in section 26, supra, which provide for an adjournment of the term until some future day when necessary, and for the retaining of the regular panels of jurors for service at some adjourned term.The court could have proceeded under that section of the statute, and could have adjourned the term, and in that case the argument of counsel would sound.The court did not, however, proceed under that section of the statute, and did not adjourn the term of court.It merely excused the jurors until a future day, leaving the term fully alive and existing for all proper purpose.During said term, and on April 30, 1919, the grand jury was drawn under the provisions of section 12 of chapter 93,Laws 1917, which authorizes such action.The mere fact that the petit jurors were excused until May 19, did not adjourn the term of court, in the absence of an order of the court to that effect.

[3] 3.Further objection to the grand jury was made on the ground that after the return of the original venire only 14 were found to be present and qualified, and that thereupon the judge issued a venire for persons living in the precincts in the immediate...