State v. Moore.

• Decision Date: 20 January 1938
• Docket Number: No. 4303.,4303.
• Citation: 42 N.M. 135,76 P.2d 19
• Parties: STATEv.MOORE.
• Court: New Mexico Supreme Court

42 N.M. 135

76 P.2d 19

STATE

v.MOORE.

No. 4303.

Supreme Court of New Mexico.

Jan. 20, 1938.

Appeal from District Court, Lea County; James B. McGhee, Judge.

M. E. Moore was convicted of voluntary manslaughter, and he appeals.

Affirmed.

Defendant in murder trial waived question of incompetency of his wife's written statement immediately after homicide as evidence against him by later calling her to stand as witness for himself. Comp.St.1929, § 45-505.

Tom W. Neal and Margaret Neal, both of Lovington, and C. M. Neal, of Hobbs, for appellant.

Frank H. Patton, Atty. Gen., and Richard E. Manson, Asst. Atty. Gen., for the State.

ZINN, Justice.

The defendant (appellant here), M. E. Moore, was charged with the crime of murder in the first degree. His defense was that at the time of the homicide he was suffering from insanity or a diseased mind. He was found guilty of voluntary manslaughter, sentenced to the penitentiary, from which this appeal is prosecuted.

Evidence was introduced tending to show that Harper, the deceased, had had illicit relations with the defendant's wife; that defendant had found them together in his home. As a result of this the defendant and his wife had separated. Three days prior to the homicide the wife left the defendant with the apparent purpose of going to Eastland, Tex., to secure a divorce. Instead, she met deceased in Eunice, N. M., and went with him to Hobbs, N. M., where they registered at a tourist camp as man and wife and stayed there two nights. The defendant came to Hobbs and while on the street saw his wife with Harper, a fight ensued, four shots were fired, and Harper was shot. Harper died about three days later.

On appeal the defendant assigns as error seven points. Each will be considered as presented.

[1] Under the first point the defendant complains of the admission of certain portions of a written statement made by the defendant's wife immediately following the fatal shooting. Witness Wooten, while on the stand, upon cross-examination, was asked if the defendant's wife had made any “remarks” relating to her feeling for the deceased Harper. The witness responded that the wife had made a statement, which statement was in the hands of the district attorney. Counsel for the defendant then asked witness Wooten the following: “Q. In that statement, did she say anything about her affection for the deceased?” The witness responded: “A. She said she loved him.”

Upon redirect examination of witness Wooten, over objection of counsel for defendant, the court permitted the district attorney to read to the jury part of the statement.

The defendant interposed his objection to the introduction of the statement, for the following specific reasons: Because he was not present at the time the statement was made, because it is an attempt indirectly to make the defendant's wife a witness against him, and because the written statement contains many statements of facts about which witness Wooten was not examined upon cross-examination, and also because the statement contains many incompetent and irrelevant statements of fact. The court admitted part of the statement into evidence on the theory that it related to testimony brought out by the defense on cross-examination.

We see no need of encumbering this opinion with a complete narration of what transpired immediately preceding and during the introduction of the statement, nor the statement itself. We have already set forth the question asked by counsel for defendant of witness Wooten and his response. This response clearly showed, irrespective of a later confusion in the mind of Wooten, that the witness believed that in the written statement of the wife she stated that she loved the deceased. The statement itself, however, shows that what she said was: “I told my husband about two weeks ago that I loved Johnnie (referring to deceased) and ask him to give me a divorce.”

There is a difference between what witness Wooten believed the wife had said as indicated by his answer on cross-examination, and what the statement actually contained.

Counsel for the state and counsel for defendant agree the general rule of law to be that where a party introduces or goes into part of a conversation, statement, or writing, his adversary is entitled to go into the remainder of such conversation, statement, or writing if necessary to explain, limit, or throw light upon the matter already introduced. 4 Wigmore on Evidence, 2d Ed., §§ 2113-2115; 3 Jones Commentaries on Evidence, § 1063. That being true, it was clearly admissible to show that the wife in her statement had said that she had told her husband that she loved the deceased, and not as witness Wooten believed the statement to be that she had therein stated that she loved the deceased.

[2] As to the remainder of the statement admitted, we do not deem it necessary to determine whether the same was or was not admissible. Counsel for defendant failed to segregrate the admissible from the inadmissible portion and confine his objection to the latter. His objection went to the statement in its entirety. We have pointed out that part of it that was admissible. The failure to specify the objectionable part, if any, brings this clearly within the rule announced by this court in the case of State v. Hernandez, 36 N.M. 35, 7 P.2d 930.

[3] The second claim of error is that the introduction of the statement was tantamount to making the wife of the defendant a witness against him contrary to Comp.St. 1929, § 45-505. We have related the manner and circumstances under which the statement was admitted. Counsel for defendant asked of witness Wooten whether or not the wife of the defendant had said anything in the statement about her affection for the deceased. In so asking, the defendant introduced his wife as a witness to the jury and court. Under the circumstances he cannot complain. Under the rules of evidence the state was authorized to inquire into the statement made by the defendant's wife. Clearly the defendant cannot complain of his own action in bringing into the record his wife's statement and thereby making her a witness.

[4] Furthermore, the defendant waived the question of competency by later calling his wife to the stand as a witness in his own behalf.

We come now to the third assignment of error.

The court instructed the jury on murder in the first degree and murder in the second degree. The jury was also instructed on the law of voluntary manslaughter at the request of counsel for defendant.

The jury was then instructed on the law of insanity as it related to the defense interposed by the defendant.

The court without objection gave the jury this additional instruction: “15. If you find that the defendant shot and killed the deceased because of some grievance against him, resulting from past conduct of the deceased with defendant's wife, and the defendant was not at said time insane as insanity had been defined to you, then the defense of insanity is not available to the defendant and you will not acquit him on that ground.”

After the instructions had been given to the jury and counsel for the state and defendant had concluded their argument, the jury retired to deliberate. After the jury had been out approximately eighteen hours, the jury returned into court and the following transpired:

“The Court: Gentlemen of the jury, did you have some request you want to make of the court?

“Foreman: We would like to have the sentence on these degrees.

“The Court: Come up, gentlemen.

“(Attorneys go to the bench.)

“The Court: Gentlemen, have you been able to agree upon a verdict in this case?

“Foreman: On two counts.

“The Court: Gentlemen of the jury, relative to the penalty in the case as to the degrees which have been submitted; that is, first degree, second degree and manslaughter, the supreme court of this State has held that it is improper for the district court to advise the jury as to the penalty but the due province of the jury is to find the guilt or innocence of the defendant. Gentlemen, I am going to give you this additional instruction. Upon your report that you are unable to agree, the court instructs you as follows: ‘The Statutes of New Mexico provide that “any person who kills another who is in the act of having carnal knowledge of such person's legal wife, shall be deemed justified; provided such husband and wife are not living separate but together as man and wife.”’

“‘In this case, I instruct you that if you find the defendant was sane at the time he shot and killed the deceased, if you find he did, then the fact that the deceased may have theretofore had sexual intercourse with the wife of the defendant would not justify his slaying by the defendant, but it is a circumstance which may be considered by you in connection with all the other facts and circumstances in the case as showing provocation and in mitigation of his crime; that is to say, it might be a circumstance which would cause a condition of such anger on the part of the defendant as to render him incapable of premeditation or deliberation and reduce the killing to manslaughter.’

“You may retire and further consider your verdict.

“Melvin Neal: Comes now the defendant and excepts to the giving of the additional instruction by the court, for the reason that the same is not based upon the evidence in this case, is entirely outside of the purview of the evidence herein, was given after argument and after the jury had been out for eighteen hours, and is highly prejudicial to the defendant.

“Mr. Tom Neal: And for the additional reason that the instruction contains only a statement of abstract law, not in any wise pertaining to this case, or the issues presented by the testimony, and further giving it at this time deprives the defendant of the right to argument of the facts therein presumed to the jury.

“The Court: The record is full of testimony as to the acts of the deceased and the defendant's wife intimacy, and was...