State v. Martin.

• Decision Date: 11 October 1926
• Docket Number: No. 2961.,2961.
• Citation: 250 P. 842,32 N.M. 48
• Parties: STATEv.MARTIN.
• Court: New Mexico Supreme Court

32 N.M. 48

250 P. 842

STATE

v.MARTIN.

No. 2961.

Supreme Court of New Mexico.

Oct. 11, 1926.Rehearing Denied Nov. 10, 1926.

Syllabus by the Court.

The indictment is framed under the first clause of section 1481, Code 1915, and is an indictment for assault with intent to murder. It being an indictment for assault with intent to murder, under the first clause of section 1481, and the punishment being fixed by that section, section 1480 of the Code has no application, and the sentence of the court, being within the limit prescribed by said section 1481, as amended, is not excessive.

Section 1481, Code 1915, is not void for uncertainty or indefiniteness, at least so far as the first clause thereof, pertaining to assault with intent to murder, is concerned.

The absolute right of peremptory challenge of a juror, after acceptance, is not allowed, but the court, in its discretion, may allow the right to be exercised in such case.

The admission of evidence cannot be challenged on appeal for reasons not stated in the trial court at the time the objection was made.

Error in the admission of evidence is not ground for reversal if not prejudicial to the rights of the complaining party.

Where a medical witness has given expert opinion evidence based upon his general knowledge and experience, it is not error to refuse to strike testimony of two cases within the knowledge of the witness, wherein the results were in accord with the results likely to occur, as stated in such opinion evidence, even though such knowledge was acquired partly by hearsay, especially as such opinion was not based solely or principally upon such specific instances.

While the right of cross-examination, thorough and sifting, should not be abridged, nevertheless, even upon cross-examination, where an answer to a question propounded to a witness is refused by the court, and such refusal is assigned as error, it must appear that counsel, on the trial, stated to the court, either what he expected to prove, or (if that is impracticable or impossible) what he desired to prove, by the answer to such rejected question. Upon failure of such statement to the trial court, this court cannot review the alleged error.

It is not, ordinarily, error for the prosecuting attorney to comment upon the failure of the defendant to produce a witness who is competent and cognizant of material and relevant facts.

Additional Syllabus by Editorial Staff.

“Mayhem,” at common law, is unlawfully and violently depriving another of use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary.

Appeal from District Court, De Baca County; Hatch, Judge.

Isaac Martin was convicted of assault with intent to murder, and he appeals. Affirmed.

In prosecution for assault with intent to murder, on showing that alleged victim received four bullet wounds and testimony by defendant that he was unconscious during shooting, permitting state to elicit from witness testimony relating to statements which witness had theretofore made concerning whereabouts of one of pistols immediately prior to shooting inconsistent with testimony of such witness at time of trial was not prejudicial. Code 1915, § 2180.

O. E. Little, of Roswell, J. F. Kelton, of Ft. Sumner, and Fleming & Neal, of Santa Rosa, for appellant.

J. W. Armstrong, Atty. Gen., and J. N. Bujac, Asst. Atty. Gen., for the State.

BICKLEY, J.

The appellant, Isaac Martin, was convicted in De Baca county of assault, with intent to murder Aaron Martin. The verdict of the jury recommended clemency. The court sentenced appellant to serve a term in the state penitentiary of not less than 7 years, and not more than 10 years, at hard labor. The appellant was living on his ranch with his two sons, Aaron Martin, 12 years old, and Vearle Martin, 10 years old, and appellant's mother. Aaron Martin had been out watering the chickens and came into the house about 8 o'clock in the morning and his father, the appellant, came in shortly afterward, the appellant preparing to go to Ft. Sumner, which was approximately 30 miles from appellant's ranch. The appellant was the owner and possessor of a 32 Smith & Wesson revolver, an automatic revolver, a rifle, and a shotgun. He had been in the habit of hiding the two revolvers in different places about the house, which consisted of one room, in order to keep people from stealing them. On the particular morning in question, he looked into a box that was on the foot of the bed and discovered that the automatic pistol was gone, whereupon he questioned his eldest son concerning it. Aaron Martin testified that he had taken the automatic pistol from the box that morning, intending to take it to school with him, and that, upon being questioned by his father and after his father had gone out again into the yard, he (Aaron) was attempting to replace the automatic pistol in the box when his father came into the house, whereupon he (Aaron) started to put it back into his pocket when the gun went off, and it seemed to him like “a bunch of fire and smoke and a crash and I didn't know anything.” The appellant, Isaac Martin, testified that he leaned over the head of the bed to pick up the 32 Smith & Wesson, and, as he turned around to pick up the revolver, the automatic was pointed in his face by Aaron and went off, striking him in the middle of the chin, that he immediately lost consciousness and did not know anything further until his mother shook him, standing by the door; the younger brother, Vearle Martin, was in the room just prior to the shooting and had turned away and did not see the shots fired. There is no testimony regarding the whereabouts of the mother of appellant at the time of the shooting. Shortly thereafter, the appellant, Isaac Martin, went out into the yard to crank his Ford car to come to town, and Aaron Martin came out and, in response to a question by his father, replied that he had a broken arm, walked around the other side of the car into a gate post, and fell to the ground. According to appellant's testimony, Aaron was placed in the car by appellant and the younger son, and the mother of appellant also got into the car, the appellant driving to C. W. Walker's place, about 3 or 3 1/2 miles from the Martin place, Walker getting into the car at that point to go to town with them. The appellant drove approximately 3 or 4 miles further on until they had passed the gates, explaining to Walker that the steering wheel held him up or supported him and he was unable to get out and open the gate. After passing the second or last gate, the appellant turned over the wheel to Walker and he (Walker) drove the balance of the way to town, coming to Dr. Brassell's office, where the wounds of both appellant and Aaron were examined and treated by Dr. Brassell and Dr. Brown. The state and the defendant introduced and offered expert medical testimony.

The defense interposed by the defendant was that he was unconscious or insane at the time he committed the act charged in the indictment.

[1] Appellant relies for reversal upon five propositions. The first is that the judgment and sentence appears to be void and in excess of the jurisdiction of the court. This is based upon the claim that, under section 1481, a particular kind of assault with intent to murder is described, to wit, assault with intent to murder, under the circumstances and in the manner provided by section 1476 (Code 1915), and that this kind of an assault with intent to murder carries a greater degree of punishment than an assault with intent to commit murder, under section 1480. Appellant claims that it is apparent that the prosecution was under section 1480, because there is no mention in the indictment of the character of wounds inflicted upon Aaron Martin, or, in other words, that there is no description of the character of the acts constituting assault with intent to commit murder “in any of the ways mentioned in section 1476.” We think that the appellant has misunderstood the purpose of section 1481. That section refers to two crimes-the first clause of the section refers to assault with intent to murder, and the subsequent clauses refer to assault with intent to commit mayhem, which crime is defined in section 1476. Section 1476 is substantially the same as section 712 of the Compiled Laws of 1884, and section 1481 is the same, with the exception of the punishment which has been changed by amendment, as section 713, C. L. 1884. In the case of Territory v. Vigil, 8 N. M. 583, 45 P. 1117, decided in 1896, the territorial Supreme Court, construing those sections, in a case wherein the defendant was charged and tried for assulat with intent to murder, said:

“The indictment is framed under the first clause of section 713 of the Compiled Laws of New Mexico and is an indictment for an assault with intent to murder. It being an indictment for an assault with intent to murder, framed under the first clause of this section 713, it was not necessary to allege in the indictment that it was the intent to kill and murder in any of the ways mentioned in section 712, for the indictment is not an indictment for an assault with intent to maim or disfigure, etc., as mentioned in section 712, but is simply an indictment for an assault with intent to murder.”

[9] We think the foregoing is the proper construction. There is a reason for defining the crime of assault with intent to maim or disfigure or injure a person in any of the ways mentioned in section 1476, because the nature of the injury is an important element of mayhem, this crime, at the common law, being the unlawfully and violently depriving of another of the use of such of his members as may render him less able, in fighting, either to defend himself or annoy his adversary. Whereas, if the intent were to murder, the manner of consummating the intent would not be important, provided it were of a character which might result in murder if ...