State v. Orfanakis.

• Decision Date: 27 June 1916
• Docket Number: No. 1857.,1857.
• Citation: 22 N.M. 107,159 P. 674
• Parties: STATEv.ORFANAKIS.
• Court: New Mexico Supreme Court

22 N.M. 107

159 P. 674

STATE

v.ORFANAKIS.

No. 1857.

Supreme Court of New Mexico.

June 27, 1916.On Motion for Rehearing, Aug. 9, 1916.

Syllabus by the Court.

Where there is sufficient evidence to justify the conclusion that different persons charged with a crime are all acting with a common purpose and design, the actions and declarations of each from the commencement to the consummation of the offense are evidence against the others.

An exception to an instruction is not specific which asserts that the instruction is contrary to law, without pointing out the grounds of legal objections.

A requested instruction which is erroneous is properly refused.

No error can be predicated on the refusal of the trial court to give an instruction where the instruction given by the court on its own motion fully and completely covered everything contained in the refused instruction.

Where there is evidence of motive, an instruction as to the effect of the absence of motive is improper, and should be refused.

Ordinarily the verdict of a jury will not be disturbed in the appellate court, where it is supported by any substantial evidence.

Additional Syllabus by Editorial Staff.

Where court and counsel assume that testimony would be connected up to show that a conspiracy existed, if the state failed to prove the conspiracy, it was incumbent on the defense to direct the attention of the trial court to that fact, and, having failed to do so, the point cannot be raised on appeal.

Exclusion of cross–examination as to whether a certain kind of hat which witness had testified was worn by the accused on the night of the homicide was a popular hat, or one worn by other persons in the town at the time, offered as a test of the witness' memory about the hat, was not error.

An objection to an instruction that there was no evidence in the case as to involuntary manslaughter, in the absence of exception or requested instruction on the subject, will not be considered on appeal, on the theory that the statement in the instruction disclosed that the attention of the court had been called to the question, or that the court had, of its own motion, considered the question.

Evidence in a prosecution for homicide held insufficient to require an instruction as to the effect of the drunken condition of the accused at the time of the homicide.

Where accused was identified by two witnesses as having been at the place of homicide, and he was shown to have been in company with the other defendants immediately before the homicide, a motion to strike out testimony as to a confession of defendant, on the ground that the corpus delicti and the connection of the defendant with the offense had not been proven, was properly denied.

Though a witness who testified as to a confession by accused stated that he told accused that it might be easier on him to tell the truth than it would be to try and hide it, where the accused had given the substance of his confession before this statement was made, evidence of the confession was properly admitted.

Where three defendants were indicted for murder, but only one was tried, the verdict of conviction relates to the one on trial, though the caption of the verdict names all the defendants, and the one tried is not named in the body of the verdict.

The admission of certain evidence in a criminal trial, even if erroneous, does not constitute a deprivation of due process of law, in violation of Const. art. 2, §§ 12, 18, and Const. U. S. Amend. 14, § 1.

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

Hristos Emmanuel Orfanakis, alias Crist Orfanus, alias Christos Emmanuel Orfanakis, was convicted of murder in the second degree, and appeals. Affirmed.

The appellant, Hristos Emmanuel Orfanakis, was jointly indicted with Elijah Perakis and Apostolakis Jivokias, charged with the murder of one Sem Tomas, alias Sam Tomas. Perakis and Jivokias were not arrested, and the case proceeded to trial with the appellant as sole defendant, who was convicted of murder in the second degree and sentenced to a term in the penitentiary of from 35 to 40 years.

Exclusion of cross-examination whether the kind of hat which witness had testified was worn by accused was worn by others at the time was not error.

J. Leahy, of Raton, for appellant.

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

HANNA, J.

[7] 1. The first assignment of error is predicated upon the refusal of the trial court to strike certain portions of the testimony of the witness Thomas Walbank, who testified concerning a conversation between himself and one of the defendants jointly indicted with the appellant, which occurred on the night of the homicide, and which was not held in the presence of the appellant. After the entire conversation referred to had been detailed by the witness, a motion was made by counsel for defendant that the testimony be stricken out. Whereupon the district attorney suggested that the state had a right to prove a conspiracy between the three parties indicted. While the record is not quite clear in this respect, it would seem that the court and counsel assumed that this testimony would be connected up in order to show that a conspiracy existed. No further objection was interposed by counsel for defendant, and if the state failed to prove the conspiracy which it had suggested, it was incumbent upon the defense to direct the attention of the trial court to this fact and renew his motion to strike the objectionable testimony. We conclude, therefore, that the appellant is in no position to urge his objection in this respect.

[1] 2. It is seriously contended by the state that, even though it be admitted for the sake of argument that the question is before the court for determination, nevertheless the testimony of the witness was not improperly admitted, because it did not prejudice the rights of the appellant and was therefore harmless error, if error at all. We do not deem it advisable to enter into any lengthy discussion of the evidence in this connection, although the state's contention in this respect may be well grounded. There is in this connection, however, the further objection to the testimony in question, as urged by the appellant, to the effect that the introduction of testimony tending to establish such a conspiracy is contrary to law and all rules of evidence. While the brief of appellant is not clear as to the character of this last objection, we cannot agree with him if we understand his contention. Generally speaking, where there is sufficient evidence to justify the conclusion that different persons charged with a crime are all acting with a common purpose and design, the actions and declarations of each from the commencement to the consummation of the offense are evidence against the others. Kelley et al. v. People, 55 N. Y. 565, 14 Am. Rep. 342. See, also, People v. Van Tassel, 156 N. Y. 561, 51 N. E. 274; Tarbox v. State, 38 Ohio St. 581.

[8] 3. The next error assigned by appellant is predicated upon the action of the trial court in sustaining an objection of the district attorney to a question propounded to a state's witness, Madison, upon cross–examination, as to whether a certain kind of hat, which the witness had testified was worn by the appellant on the night of the homicide, was a popular hat, or one worn by other persons in Van Houten at the time. The theory of the defense in pursuing this line of cross–examination was based upon an alleged right to test the witness' memory about the hat. The ruling of the court was based upon the ground that the defense could show that other hats of the same kind were worn by other persons, as a matter of defense, and that the question was immaterial as a matter of cross–examination. We cannot see how the question would have been effective upon the theory of testing the recollection of the witness. He might have known that other hats of a similar kind were worn by other persons at this time, and he might not have known that fact. In either event it would have been of little value as a test of his memory in that particular. The objection, however, is without merit because, so far as the witness is concerned, the identification of the defendant did not depend upon the kind of hat worn by the defendant at the time.

[2] 4. The next contention of appellant can be grouped as including his proposition numbered from 3 to 7, inclusive, as treated in his brief, and is directed to the alleged erroneous instructions of the trial court numbered 17, 21, 22, 23, and 24. In this connection the Attorney General suggests that the exceptions are not specific, in that they do not point out the alleged insufficiency of the instructions upon legal grounds, and we hold with the Attorney General in this contention.

In the case of State v. Gonzales, 19 N. M. 467, 144 Pac. 1144, in an opinion by the Chief Justice under a state of facts where the defense excepted to a certain instruction for the reason that the same did not clearly, concisely, and accurately state the law in defining reasonable doubt, and that said instruction was ambiguous, misleading, and contrary to law, this court said:

“The above exception, it will be noted, fails to point out specifically the error in the instruction. It is true it is stated that the instruction does not clearly, concisely, and accurately state the law in defining reasonable doubt, but wherein it fails in this regard is not set forth. It is also stated that the instruction is ambiguous, misleading, and contrary to law, but under the rule above stated, counsel should have pointed out specifically wherein such instruction was misleading, ambiguous, and contrary to law.”

In the present case the exception was even more general than in the Gonzales Case, and it is only alleged that the instruction is not according to the evidence, nor the law as the same should be given. The exceptions as to the three instructions are therefore insufficient so far as t...