State v. Manzanares.

• Citation: 33 N.M. 573,272 P. 565
• Decision Date: 03 February 1928
• Docket Number: No. 3224.,3224.
• Parties: STATEv.MANZANARES.
• Court: Supreme Court of New Mexico

33 N.M. 573

272 P. 565

STATE

v.MANZANARES.

No. 3224.

Supreme Court of New Mexico.

Feb. 3, 1928.Rehearing Denied Dec. 17, 1928.

Syllabus by the Court.

The record, on appeal, must show all of the record of the trial court necessary for a consideration of the questions presented for review; otherwise, such questions cannot be considered.

Discretion of trial court in overruling motion for new trial, based on disqualification of some of the jurors, not reviewable.

Appeal from District Court, Rio Arriba County; Holloman, Judge.

Solomon Manzanares was convicted of assault with a deadly weapon, and he appeals. Affirmed.

Trial court's discretion in overruling motion for new trial for disqualification of some jurors held not reviewable. Laws 1917, c. 93, § 2.

J. H. Crist, of Santa Fé, for appellant.

R. C. Dow, Atty. Gen., and F. H. Patton, Asst. Atty. Gen., for the State.

BICKLEY, J.

Appellant was convicted of an assault with a deadly weapon.

He presented a motion for a new trial and arrest of judgment. As stated by appellant, the motions present three principal facts, as follows:

(1) That the verdict of the jury is against the evidence and the weight of the evidence, in that it shows that only one blow was struck with the deadly weapon, that the prosecuting witness testified that blow was struck by one of two brothers of appellant, Enrique Manzanares or Malaquias Manzanares, while the wife of the prosecuting witness testified that appellant struck the blow.

(2) That three of the jurors that tried the case were second cousins of the prosecuting witness, and that two of the other jurors were brothers-in-law of one of said related jurors.

(3) That said relationship was concealed by said jurors on their examination on the voir dire, and that neither appellant nor his attorneys knew of it until after the verdict was returned.

[1] The first of these we may not consider, because the record does not contain a bill of exceptions, setting forth the evidence. Eaton v. First National Bank of Dalhart, Texas, 23 N. M. 687, 170 P. 45; Baca v. Catron, 24 N. M. 242, 173 P. 862.

[2] The contention presented by the second and third grounds of the motions must be overruled on the authority of Territory v. Emilio, 14 N. M. 147, 89 P. 239 (followed in State v. Nance [N. M.] 252 P. 1002), which laid down the rule that this court cannot review the action of the trial court in overruling a motion for new trial, based upon the disqualification of a juror. Even if the rule were otherwise, we are not impressed with the claim of appellant that the trial court abused its discretion in ruling upon said motions. The parties agree that it is necessary to show that the defendant was prejudiced through the service on the jury of the jurors claimed to be incompetent. They also agree that two rules have been followed by the courts for the determination of this fact: (1) That the burden is on the defendant to show that he was injured; (2) that injury will be presumed from the fact of the incompetency. Appellant requests us to adopt the second rule. Section 2 of chapter 93, Laws of 1917, which prescribes the qualifications and regulates the drawing of jurors and the manner of impaneling and challenging such jurors in criminal and civil cases, provides:

“The service upon any jury or [by] any person disqualified, or exempt from service under the provisions of this act, or any act hereafter passed, shall of itself not vitiate any indictment found or any verdict rendered by such jury, unless actual injury to the person complaining of the same shall be shown.”

Appellant contends that this statutory rule refers only to the disqualifications mentioned in the statute and not to disqualifications occurring through relationship which would warrant a party in challenging a juror on account of the likelihood or suspicion of bias or prejudice.

In section 116 of Thompson on Trials (2d Ed.), it is said:

“It has been repeatedly held that a cause of challenge not discovered until after verdict, whether the case be civil or criminal-as that some of the jurors were aliens; or not of the jury...