State v. MARTINEZ, 5088

• Decision Date: 28 September 1948
• Docket Number: No. 5088,5088
• Citation: 198 P.2d 256,52 N.M. 343
• Parties: STATE v. MARTINEZ.
• Court: New Mexico Supreme Court

52 N.M. 343

198 P.2d 256

STATE

v.MARTINEZ.

No. 5088.

Supreme Court of New Mexico.

Sept. 28, 1948.

[198 P.2d 256, 52 N.M. 344]

Mather M. Eakes, of Farmington, and Robert M. Eakes, of Durango, for appellant.

C. C. McCulloh, Atty. Gen., Robert V. Wollard and William R. Federici, Asst. Attys. Gen., for appellee.

LUJAN, Justice.

The defendant was tried upon a charge of having murdered Beraldo Archuleta and was convicted of voluntary manslaughter and sentenced to a term in the state penitentiary. From this judgment and sentence he has appealed to this court.

It is asserted that the trial court erred in overruling defendant's challenge to the jury panel, because as it is said, 'A large number of jurors were excused indiscriminately and without good cause, so that the panel that is now placed upon this defendant is not made up in the order in which they came or based upon legitimate causes.' It seems that forty-four jurors qualified for service for the term of court. It became necessary to discharge twentyof these, as the trial jury panel consists of twenty-four qualified persons. The court, upon excuses given satisfactory to it, discharged eighteen of these jurors, leaving twenty-six, and then called the first twenty-four names to constitute the jury for the term.

This is the ordinary procedure in selecting juries. Necessarily the court was required to release twenty of those qualified to act as jurors. Eighteen of these were discharged by the trial court for business reasons, and the panel was complete before the names of the other two were reached.

We said in State v. Sims, 51 N.M. 467, 188 P.2d 177, 179: 'The trial court is necessarily invested with a wide discretion in the superintendence of the process of impaneling the jury and in the absence of unusual circumstances we will not disturb its exercise.' State v. Burrus, 38 N.M. 462, 35 P.2d 285.

There is nothing in the record to indicate that any member of the jury was biased or prejudiced or that the defendant was not accorded a fair and impartial trial.

We adopted the following rule from 1 Thompson on Trials, Sec. 143 In State v. Rodriguez, 23 N.M. 156, 167 P. 426, 428, L.R.A.1918A, 1016: "No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn.It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created." There is no merit to this contention.

Dr. Rife, a ballistic expert, or one skilled in the science of ballistics, gave expert testimony on the question of whether the bullet that killed deceased was fired from defendant's gun. It is asserted that the trial court erred in permitting the witness to state as a fact and not as his opinion, that the bullet in question was fired from the defendant's gun. After qualifying as a ballistic expert, he testified as follows:

(Examined by District Attorney):

'Q. Doctor, I hand you State's Exhibit 2 and ask you to state whether you have ever seen that before: A. Yes, sir, this has been in my possession since April 18th, 1947.

'Q. And where did you get it, Dr. Rife? A. I got it from yourself, it was delivered to me in my laboratories in Santa Fe on that date at 11 A.M.

'Q. Was there anything else delivered to you by me at that time? A. Yes, sir.

'Q. Will you kindly state what it was? A. This pistol, a 25 Colt automatic No. 92031; 7 empty cartridge cases marked 'Peters ACP 25 Caliber.' The ACP stands for automatic Colt pistol. One 25 caliber metal jacketed bullet that had been fired and marked and referred to hereafter as the 'evidence bullet.' Two loaded 25 caliber Peters ACP ammunition, which I used for recoveries and comparison purposes.

'Q. I hand you State's Exhibit No. 1, and ask you what that is? A. This is a 25 caliber metal jacketed automatic bullet. This is marked 'evidence' and the same bullet as described a while ago.

'Q. Now, Doctor, I wish you would tell this jury what, if any, experiments you made with the loaded 25 caliber Peters ACP ammunition that was turned over to you. A. The two loaded cartridges were placed in a clip of a Colt automatic pistol, 25 caliber, No. 92031, and were fired into a recovery box of my own design and invention that has been copied I suppose all around the world, with the purpose of comparing the marks not only on the cartridge case but on the bullets as they went through the barrel, with the evidence bullet and evidence empty shells that I received from you on the date mentioned previously. (State's Exhibit 3 marked.)

'Q. I hand you State's Exhibit No. 3, and ask you to state what those are? A.This box contains the recoveries from the two pieces of loaded ammunition fired through Colt 25 automatic. They are two bullets and two empty cartridge cases both fired in—I have them here. Those are yourevidence shells, both fired in Colt Automatic pistol No. 92031.

'Q. Now, did you, Dr. Rife, make any ballistics examination of State's Exhibit No. 1, in connection with State's Exhibit No. 2? A. Yes, sir, I did.

'Q. Now will you please state to the jury the result of that examination? A. As I previously described before the identical ammunition, this Peters 25 caliber ACP was fired through the little gun there. The markings on the bullet, signature left by the barrel of the gun on the bullets were compared with the markings on the evidence bullet, State's Exhibit No. 1, and found to be identical. Both note what we call the class characteristics, that is, the same number of lands and grooves on the bullet, the same direction of the pitch of the rifling and the individual marks left by the lands and the grooves in the rifling of this barrel. Those markings were absolutely identical under the miscroscope, with the markings left on the bullet, State's Exhibit No. 1. Also the test shells, using the same ammunition, the markings from the breech face of the gun were left on the primer cups. Most of you, I think, know what they are, they are the little primer cups inside the head of the shell. Those compared identically with those left on the primer cups of the evidence empty shells.

* * *

'Q. Dr. Rife, can you express an opinion from your experience as a ballistics expert, whether or not State's Exhibit No. 1 was fired from State's Exhibit No. 2, this 25 Colt No. 92031? A. Yes, sir, I can. This is an exact identification and I can prove it with my microscope there to the jury. The marks are not similar, they are absolutely identical, all of the marks that I described, and if I must put it as my opinion, I will say yes. * * *

'Q. I will ask you, from an examination of these two bullets, that is State's Exhibit No. 1-A. Which is here.

'Q. And a test bullet—A. Which is here.

'Q. Whether or not you can state what gun they were fired out of? A. Yes, sir, I can.

'Mr. Mather Eakes: I offer the same objection, if the Court please. I don't mean to be highly technical, that is not my point or purpose, it is my understanding that it is well known in legal circles that an expert, duly qualified, can given his opinion, but he cannot go beyond that * * * 'Court: The objection will be overruled. * * *

* * *

'Q. I hand you herewith State's Exhibit No. 1, which is the bullet which was extracted, according to the testimony of Dr. Chadwell, from the body of the deceased, and ask you to point out which bullet that is. A. It is the bullet nearest the jury.

'Q. And I will ask you to point out what the other bullet is. A. The other is a test bullet recovered by myself, as I described a while ago, from the recovery box.

'Q. Will you examine those two bullets under the microscope and state whether you can tell what gun they were fired out of? A. I have examined them in many, many hours, spent a good many hours on them. I can look at them again. They were fired from Colt 25 caliber automatic pistol No. 92031.

'Q. Now, I will ask you to demonstrate to the jury——

'Mr. Mather Eakes: I move to strike the answer to that question, in order to keep my objections straight here. The witness cannot testify beyond an opinion statement as to whether the bullets were fired from the same gun or not.

'Court: The same ruling, the objection will be overruled.

'Mr. Mather Eakes: Exception.

'Q. Will you explain to the jury and demonstrate to them, if they wish to, how you reached that conclusion: A. First of all, in comparing hullets we recover bullets through the suspected gun or the evidence gun by firing a bullet into a box that is backed with cotton waste, as a rule, it is boiler plated inside and that balls up the bullets with a little ball of cotton waste so that they are not scratched. The signature, or marks from the barrel and the rifling of guns are especially good andespecially permanent on bullets of this particular nature, the automatic bullets especially because they are coated with a metal jacketing that we call gilders metal, or gilding metal, which is an alloy of about 60% copper and 40% zinc or tin. That retains not only the marks of the rifling, the lands and grooves in the gun barrel, but also the individual scratches left by the rifling cutter when the barrel is rifled at the factory. As some of you may know, the barrel is drop forged and then bored. Then when bored to the proper caliber, it is rifled with a series of rifling cutters, two types, a hook and a scrape cutter that are drawn through the barrel with a machine in this fashion, which produces the twist to the rifling. Now, in a Colt, and the Colt people are the only ones who manufacture guns with the rifling pitch to the left. All other American small arms,Remington, Savage and Smith and Wesson, the rest, the pitch of the bullet is to the right. The Colt people pitch theirs to the left. In other words it gives the bullet a...