State v. Martino.

• Decision Date: 02 September 1920
• Docket Number: No. 2326.,2326.
• Citation: 192 P. 507,27 N.M. 1
• Parties: STATEv.MARTINO.
• Court: New Mexico Supreme Court

27 N.M. 1

192 P. 507

STATE

v.MARTINO.

No. 2326.

Supreme Court of New Mexico.

Sept. 2, 1920.

Syllabus by the Court.

Objection to the indictment, which was in all respects regular in form, to charge defendant as a principal in the second degree according to the outward form, rather than the legal effect, of his acts, held to be properly overruled.

Evidence examined, and held to justify the overruling of a motion for a directed verdict of acquittal.

Where homicide is committed while the doors of a dwelling are being broken by defendant and his companion, evidence of such breaking is admissible as a part of the res gestæ.

Evidence examined, and held to justify the court's refusal to take from the jury the consideration of the question of the guilt of the defendant of murder in the first and second degrees, and to confine them to manslaughter.

A principal in the second degree is guilty of the crime the same as the principal in the first degree, and may be tried and convicted, even although the latter has been acquitted or convicted of a lesser degree of the offense.

Instructions requested are properly refused, when the court has covered the same ground by other proper instructions.

The appellant was charged in the indictment with murder as a principal in the second degree. The principal in the first degree, who did the shooting, testified for the prosecution. On cross–examination he was asked the following questions: “Why did you shoot Joe Laval that night?” “Did you and Dominic Martino go to the kitchen that night when you went there for the purpose of assaulting or shooting Joe Laval?” It is held that the court committed error in sustaining objection to these questions upon the theory that answers to the same tended to characterize the grade or quality of the act, of which the appellant was entitled to avail himself.

The rule, requiring counsel to explain to the court the kind and character of the evidence sought to be elicited from a witness in order to preserve a question for review in this court, has no application, where the witness is upon cross–examination, and where the question itself is self–explanatory of the character of evidence sought to be elicited.

Appeal from District Court, Colfax County; Lieb, Judge.

Dominic Martino was convicted of murder in the second degree, and he appeals. Reversed, and cause remanded, with directions to award a new trial.

The rule requiring counsel to explain to the court the kind and character of the evidence sought to be elicited from a witness in order to preserve a question for review in the Supreme Court has no application, where the witness is upon cross-examination, and where the question itself is self-explanatory as to the evidence sought.

J. Leahy, of Raton, for appellant.

N. Meyer, Asst. Atty. Gen., for the State.

PARKER, C. J.

The appellant was tried and convicted of murder in the second degree, and sentenced to a term in the penitentiary, from which judgment this appeal is taken. He was charged as a principal in the second degree; that is to say, one Joseph Savant was charged with murder in the first degree in regular form, and the appellant was charged as being present, aiding, abetting, and assisting said Savant in the commission of the murder.

The facts appearing from the record are as follows: On the night of the homicide appellant and the said Savant had been down town, and returned about half past 10 o'clock to the home of the deceased, with whom they boarded. They were intoxicated, and made a great deal of noise around the house. Appellant knocked at the kitchen door of the deceased's house, and asked for liquor, which request was refused by the deceased, he telling appellant to go to bed. Appellant then went to his bunk room, and took something out of his trunk, saying, “I am going to show you that I can make you open the door.” “I will show you if you are the boss of me; I will see which is the boss.” Returning to the yard near the kitchen door, the appellant engaged in bad language toward the deceased, and the appellant and Savant broke in the kitchen door. Appellant then called to the deceased, and invited him to come outside, and threatened him, and said that he would “fix him.” The deceased then entered the kitchen from an adjoining bedroom, and the shooting began. At this time deceased had no gun, and he returned to his bedroom and procured a shotgun. When he returned to the kitchen another shot was fired, and he immediately returned the fire. All of the shooting, so far as appears from the evidence, was done by the defendant, Savant, and the appellant did no shooting. Upon firing the last shot by Savant the deceased fell, and thereupon the appellant entered the kitchen and jumped upon the deceased, and struck him on the neck with a pistol which he had, but which, so far as appears from the record, he did not fire. As he was striking the deceased, the appellant said, “There, I am better than you are, and will make your brains jump.” The shot which the deceased fired from his shotgun took effect upon Savant, and he soon became unconscious from the effects of the wound although he afterwards recovered and testified as a witness in the case.

It will thus be seen that the actual killing was done by the defendant, Savant, and that the appellant was present, aiding, abetting, and assisting Savant in the commission of the crime, and he was so charged in the indictment.

[1] 1. A motion was made to quash the indictment, which motion was overruled. The motion was based, as near as we can determine, upon the following grounds: (1) That no conspiracy is alleged; (2) that the allegation of aiding, abetting, and assisting is a mere conclusion of law; (3) that the indictment does not charge that the appellant instigated the killing; (4) that it is not alleged that the appellant induced, counseled, or suggested the killing, or co–operated with Savant to take the life of the deceased; (5) that the indictment does not allege that appellant was aware of the intent on the part of Savant to shoot and kill; and (6) that the indictment does not allege that intent to take life was in the minds of both Savant and the appellant.

A sufficient answer to all of these objections is to be found in 1 Bishop's New Cr. Law, § 648; 2 Bishop's New Cr. Proc. § 3; 1 Bishop's New Cr. Proc. § 332, and Bishop's Directions and Forms, §§ 113–115, and it will be unnecessary to cite our own or other cases. The indictment was in all respects regular in form.

[2] 2. At the close of the evidence for the state, appellant moved for a directed verdict of acquittal upon the grounds that: (1) There was no sufficient evidence touching the aiding, abetting, or assisting by appellant; (2) the evidence for the state showed that appellant did not aid, abet, or assist in the commission of the crime; (3) there is no evidence that appellant and Savant entered the home of the deceased with the intent to take his life; (4) the indictment does not allege that the homicide was committed while appellant and Savant were engaged in the commission of a felony; (5) the indictment does not charge any conspiracy between defendant and Savant, and because the evidence shows that Savant shot and killed deceased, acting upon his own resolution and without any agreement with appellant; and (7) there was no sufficient evidence before the jury touching the crime charged.

The fourth, and the first clause of the fifth, ground of the motion repeat objections to the indictment theretofore made in the motion to quash, and need not be again considered. The grounds of the...