State v. Mccracken.

• Decision Date: 28 June 1917
• Docket Number: No. 1958.,1958.
• Citation: 166 P. 1174,22 N.M. 588
• Parties: STATEv.MCCRACKEN.
• Court: New Mexico Supreme Court

22 N.M. 588

166 P. 1174

STATE

v.MCCRACKEN.

No. 1958.

Supreme Court of New Mexico.

June 28, 1917.Rehearing Denied Aug. 17, 1917.

Syllabus by the Court.

The granting of a motion for continuance is within the exercise of the sound discretion of the trial court, and such discretion will not be reviewed, in the absence of a gross abuse thereof.

As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time, showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.

One cannot defend his property, other than his habitation, to the extent of killing the aggressor, for the mere purpose of preventing a trespass. Held, where a homicide grew out of a dispute between two parties as to the right to the possession of a strip of land, the rightful claimant thereto had not the right to slay the other party, in order that he might enter thereon and construct a fence, and an instruction tendered to the court to the effect that appellant had the right to enter thereon and construct a fence was properly modified by the court, by adding the words, “if he could do so peaceably and without force.”

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

Sidney J. McCracken was convicted of murder in the second degree, and he appeals. Affirmed.

One cannot defend his property, other than his habitation, to the extent of killing the aggressor, for the mere purpose of preventing a trespass. Held, where a homicide grew out of a dispute between two parties as to the right to the possession of a strip of land, the rightful claimant thereto had not the right to slay the other party, in order that he might enter thereon and construct a fence, on an instruction tendered to the court to the effect that appellant had the right to enter thereon and construct a fence was properly modified by the court, by adding the words, “if he could do so peaceably and without force.”

H. M. Dow, of Roswell, for appellant.

H. S. Bowman, Asst. Atty. Gen., for the State.

ROBERTS, J.

The grand jury of Socorro county returned an indictment against appellant, charging him with the crime of murder. The venue of the case was changed to Valencia county, and a trial resulted in a verdict of guilty of murder in the second degree, upon which judgment was rendered, from which this appeal is prosecuted.

[1] Appellant assigns as his first ground of error the overruling by trial court of his motion for continuance. Continuance was asked on the ground of the absence of three material witnesses, Sullivan, White, and Tafoya; Sullivan and Tafoya both being alleged to have been eyewitnesses to the difficulty which led to the death of the deceased. It appears from the affidavits filed and the record in the case that the testimony which it is claimed the absent eyewitnesses would testify to would have been only cumulative and under all the authorities the denial of the motion for continuance under such circumstances would not be considered as prejudicial error. Aside from this fact, an examination of the motion and the affidavit supporting the same disclose that they are insufficient, in that there is no statement therein contained that any subpœna was issued for any of the witnesses named, all of whom lived in this state, and therefore there was no showing of diligence on the part of the appellant, such as the law requires. It has been repeatedly held by this court that the granting of a motion for a continuance is within the exercise of the sound discretion of the trial court, and that such discretion will not be reviewed, in the absence of a gross abuse thereof. State v. Pruett, 160 Pac. 362, and authorities cited.

[2] It is next urged that the court erred in sustaining the objection of the district attorney to the question of counsel for appellant relative to the conversation had between the defendant and the deceased concerning the fence between the land of the defendant and the homestead of the deceased, over which the difficulty arose. As there is nothing in the record to show what the answer of the witness would have been, and what testimony he would have given, we are unable to say whether or not the sustaining of the objection to the question was error. In order for the appellant to raise the question as to the propriety of the ruling of the court upon the sustaining of the objection to the question, it was necessary for him to make a tender of the testimony which he expected to elicit by the interrogatory. Had counsel made a tender of the testimony which would have been covered by the answer to the question, and it had appeared therefrom that the defendant and the deceased had had a prior difficulty in regard to the line between the lands claimed by each, then it is possible that the testimony should have been admitted. Counsel failing, however, to make a tender, leaves the court without any information concerning the relevancy of the answer, and under these circumstances it will be assumed that the ruling of the trial court was correct. The necessity for the tender of testimony where an objection to a question is sustained is stated in 3 C. J. p. 825, § 736, as follows:

“As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must be asked, and, on objection thereto, an offer must be made at the time showing what evidence will be given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.”

In 2 Elliott on Evidence, p. 164, § 886, we find the rule stated as follows:

“If a question is objected to, or a witness...