State v. Mcknight.

• Decision Date: 13 July 1915
• Docket Number: No. 1735.,1735.
• Parties: STATEv.MCKNIGHT.
• Court: New Mexico Supreme Court

21 N.M. 14

153 P. 76

STATE

v.MCKNIGHT.

No. 1735.

Supreme Court of New Mexico.

July 13, 1915.On Motion for Rehearing, Dec. 1, 1915.

Syllabus by the Court.

When a party, on cross-examination of a witness, seeks to draw out new matter not inquired of on the examination in chief, he makes the witness his own for that purpose, and the opposite party may insist upon a cross-examination.

It is a matter of discretion with the trial court whether or not to strike out on motion evidence which has been admitted without objection.

Character is always to be presumed to be good until it is impeached, but, notwithstanding such presumption, it is relevant for the defendant to offer affirmative evidence of character, and to prove that it was such as to make it unlikely that he would have committed the act charged against him.

Evidence of the general reputation of one accused of crime as to the particular traits involved in the issue is admissible in his favor.

If the sole fact to be proved is that a letter or telegram was sent or received, the writing need not be produced.

In homicide cases the clothing of the victim, when properly identified, may be produced as demonstrative evidence, on the theory that it is a part of the res gestæ and tends to inform the jury of the character and nature of the wounds, the motive of the crime, the manner and means of death, the proximity of the defendant and the deceased when slain.

In homicide cases, the introduction of clothing of the deceased in evidence has a tendency to rouse prejudice and passion, and unless the articles introduced serve the purpose of identifying the deceased or of honestly explaining the transaction, the introduction is irrelevant, and constitutes prejudicial error.

It is well settled in this jurisdiction that a party, who intends to assign error upon an instruction given by the court of its own motion, or upon request of the adverse party, must either tender to the court an instruction which correctly states the law and except to the refusal to give such instruction, or he must, by his exception to the proposed instruction, call the attention of the trial court specifically to the error in the instruction proposed to be given, in order that the instruction may be corrected and the error avoided.

The court cannot, in an instruction, substitute the requirements of the law that he shall instruct the jury as to what the law is, by any reference to an indictment from which the jury would have to determine what the essential elements of the crime charged are.

Where the only incriminating evidence before the jury is circumstantial, it is the duty of the court to instruct upon the rules of law regulating circumstantial evidence. But if there is any direct evidence tending to show the prisoner's guilt, or if a confession made by him has been proved, such an instruction is unnecessary.

Where a motion for a rehearing alleges that a certain question has been overlooked by the court, but as a matter of fact such question was expressly decided by the court, the motion on that point is not well taken.

(a) In so far as section 4214, Code 1915, can be said to dispense with the requirement that counsel must specifically point out alleged error occurring during the progress of a cause, it is repealed by section 4506 of the Code of 1915.

(b) It is not the object of a motion for a new trial to call to the court's attention a matter not presented to it during the progress of the cause, except as to matters such as newly discovered evidence, misconduct of jurors, and the like.

A new and original question cannot be presented on motion for rehearing filed in this court.

Appeal from District Court, Chaves County; McClure, Judge.

Frank McKnight was convicted of voluntary manslaughter, and appeals. Affirmed, and rehearing denied.

Evidence of the general reputation of one accused of crime as to the particular traits involved in the issue is admissible in his favor.

Appellant, Frank McKnight, was indicted jointly with his wife, Mary McKnight, for the murder of one Claude Sweazea. The trial resulted in the conviction of the appellant, Frank McKnight, of voluntary manslaughter, and the acquittal of the wife, Mary McKnight, from which verdict and judgment of the trial court this appeal was taken.

Prior to October 10, 1913, the date of the homicide, the wife of the appellant was postmistress at Ranger Lake, N. M., in Chaves county, where she resided with her husband and children in a house which was also used as the post office. The only persons present at the time of the homicide were the appellant and the wife, Mary McKnight, who testified that about sundown of the said 10th day of October, 1913, the deceased, a young man about 25 years of age, entered appellant's home in an intoxicated condition, cursing the appellant, who arose and told the deceased that he could not talk that way in his house, ordering him to depart therefrom. The deceased replied that he would go when he got good and ready, and that when he went out, appellant would go with him, and continued to curse and defy appellant, who retreated to the east wall of the post office, and that deceased continued to advance and make demonstrations as if to draw a gun. Appellant procured a gun and fired two shots in rapid succession, whereupon the deceased reeled across the room and out of the front door into the yard, where he was followed by appellant for a short distance from the house, when the deceased turned again as if to advance upon appellant, with his hand extended as though he had a gun and was about to shoot, whereupon appellant fired several additional shots, which resulted in the death of Sweazea.

The defense attempted to show that the deceased, Claude Sweazea, had taken advantage of the absence of appellant, who left home on the 26th day of June, 1913, for the purpose of going to Texas to obtain work; that knowing of such absence of appellant, he made an assault upon the wife, Mary McKnight, on the 27th day of June, attempting to commit a rape upon her, but was frightened away and did not accomplish his purpose; that returning, however, on the 30th day of June, it is claimed, he accomplished a rape upon the wife of appellant, after overcoming her resistance by the administration of chloroform. It is further contended by the defense that on the 7th or 8th day of July, the deceased again returned to the home of appellant, gaining entrance thereto by false pretenses, and the second time accomplished a rape, again making use of chloroform to accomplish his purpose.

By the state it is contended that the record discloses that the deceased, while approaching the post office at Ranger Lake, immediately preceding the homicide, met and conversed with one Carroll Mixon for a few moments, and this witness testified that the deceased was not in an intoxicated condition at the time. Other evidence in the record discloses that the deceased had been drinking earlier in the day.

It was apparently the theory of the prosecution that illicit relations between the wife of appellant, Mary McKnight, and the deceased, Sweazea, had been continuing for some period of time. It appeared that the appellant had not returned to his home after his trip to Texas until about the 16th day of July, remaining for a few days, when he again left, and did not return until the 16th day of August. The witness, Mary McKnight, codefendant with appellant, testified that she did not tell her husband concerning the alleged assaults by the deceased until his return on the 16th day of August, and that her failure to make an earlier disclosure was due to her desire to first get out of the country, as she was afraid of the deceased, who had made threats. The state, evidently believed that she did not make the disclosure concerning the alleged assaults until she found herself in a condition of pregnancy, which there is some evidence tending to show she endeavored to relieve by the use of drugs. The evidence of the state is largely circumstantial, or dependent upon alleged admissions, chiefly by the wife of appellant, as very largely testified to by a witness, Eva Harrington, who was a neighbor of the McKnights, and was called in to attend Mrs. McKnight during the evening and night following the homicide, and whose testimony will be more largely referred to in the opinion.

The evidence is very voluminous, and will be more particularly referred to in connection with the numerous assignments of error.

C. O. Thompson, of Roswell, for appellant.

Ira L. Grimshaw, Asst. Atty. Gen., for the State.

HANNA, J. (after stating the facts as above).

It is conceded that the first four assignments of error are not available on this appeal because they affect, primarily, the codefendant, Mary McKnight, who was acquitted by the verdict of the trial jury.

[1] The fifth assignment of error presents for the consideration of this court the ruling of the trial court admitting in evidence the testimony of the witness Eva Harrington, while testifying as a witness for the state, relative to an alleged conversation with the wife of appellant, wherein Mrs. McKnight is alleged to have stated that she had been taking camphor gum and aloes to relieve a condition of pregnancy. It is contended by appellant that this testimony was incompetent for any purpose, and highly prejudicial to the defendant, Frank McKnight. The witness, Eva Harrington, in her direct examination, had so testified as to the alleged conversation. On her cross-examination it was attempted to be shown that on the evening and night of the homicide Mrs. McKnight was in so nervous a condition that she had required the attention of a physician, who had found it necessary to administer some narcotic, in hypodermic form, for the purpose of quieting Mrs. McKnight, who remained in a semiconscious state after the hour of 10 o'clock, when the narcotic was administered, for which reason, it was contended, Mrs. McKnight...