State v. Parks
| Decision Date | 19 August 1919 |
| Docket Number | No. 2294.,2294. |
| Citation | 25 N.M. 395,183 P. 433 |
| Court | New Mexico Supreme Court |
| Parties | STATEv.PARKS et al. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Cross-examination of Charley Parks held not error, consonant to doctrine in State v. Perkins, 21 N. M. 135, 153 Pac. 258, that overt acts of wrongdoing on part of witness are relevant as impeaching evidence, but cannot be shown outside the examination of the witness; the extent of such examination resting largely in the discretion of the court.
Evidence examined, and held, court did not err in refusing to instruct the jury to find John Parks not guilty.
Instructions examined, and held: (1) That so far as same are reviewable they correctly state the law; and (2) that no proper exception was taken to certain instructions.
Requested instruction held erroneous, in that it is not sufficient to justify the taking of human life that a person has reason to apprehend death or great bodily harm to himself unless he killed his assailant. He must entertain such belief and must act upon it.
Action of the court in instructing jury on second degree murder held proper, notwithstanding contention of the state that the killing was murder in the first degree.
Rulings upon questions asked a witness on cross-examination, although erroneous, will not constitute ground for reversal, where no substantial prejudice results. Held, appellant suffered no prejudice.
Error in overruling an objection to a question will not constitute ground for reversal, where the question was not answered.
It is improper for the court, during the progress of the trial, to make any unnecessary comments, or to take any unnecessary action, which might tend to prejudice the rights of either of the parties litigant; but, when it becomes unavoidable, the court has the right, even in the presence of the jury, to impose a fine upon any person connected with the trial, and such action cannot of itself cause a mistrial, merely because it might have some influence on the minds of the jurors.
Proposition concerning alleged remarks during the trial of one of the attorneys for the state held not reviewable, because such alleged remarks were not incorporated in the record by bill of exceptions.
Remarks of the district attorney, which ordinarily would be improper, are not cause for reversal, where provoked by defendant's counsel and in reply to his acts and statements, unless such remarks extend to an impertinent reply, and bring before the jury extraneous matters touching important issues.
Action of the court in permitting a witness to be questioned concerning the cause for the lack of certain action by him held to be proper.
Appeal from District Court, Grant County; Ryan, Judge.
Charley Parks and John Parks were convicted of murder in the second degree, and they appeal. Affirmed.
In trial for murder, cross-examination of a defendant as to other crimes and specific acts of violence alleged to have been committed by him was proper, under rule that overt acts of wrongdoing by witness are relevant and impeaching evidence, but cannot be shown outside of his examination, the extent of which rests largely in court's discretion.
H. D. Terrell and K. K. Scott, both of Silver City, for appellants.
O. O. Askren, Atty. Gen., and A. B. Renehan, Sp. Asst. Atty. Gen., for the State.
The defendants in this case were indicted at the March, 1918, term of the Grant county district court, charged with the murder of one J. Edward Schrimsher, and they were tried at the same term of court. A verdict of murder in the second degree was returned against them, and the court sentenced each of them to imprisonment in the state penitentiary for not less than 90 nor more than 99 years, from which judgment and proceeding this appeal is perfected.
[1] The appellants complain that the court erred in permitting the state, on cross-examination of the defendant Charley Parks, to ask questions relative to other crimes and specific acts of violence, etc., alleged to have been committed by him. The propriety of such an examination has been so often upheld by this court that a discussion of the same is unnecessary; State v. Perkins, 21 N. M. 135, 153 Pac. 258.
[2] The second error assigned is that the court erred in overruling a motion of the defendant John Parks, asking that the jury be instructed to find the defendant John Parks not guilty. We have carefully examined the testimony in the case, and are convinced that there was sufficient evidence to justify the submission of the case against John Parks to the jury.
[3] Many errors are assigned directed to the instructions given by the court. In fact, so many of the instructions were attacked by appellants that it would unduly lengthen this opinion to consider them singly. We have carefully examined all the instructions given, and are satisfied that in so far as the same are reviewable they state the law correctly. In some instances appellants urge objections to the instructions not called to the attention of the trial court by proper exceptions. These objections will not, of course, be considered. For example, instructions 28, 31, 33, and 34 are here attacked. These instructions deal with the right of self-defense, and are here attacked because the court used the term “a man of ordinary prudence, firmness, and courage.” Appellants contend that this is not a correct statement of the law, in that the danger is to be viewed from the standpoint of the defendant as a “reasonable man.” The exceptions to these instructions are that the same “do not correctly state the law of self-defense and on other good and sufficient grounds,” and further “that they do not correctly state the law applicable to this phase of the case,” and that they do not correctly state the law “applicable to the facts proved on the trial and that such instructions were prejudicial to the defendants.” These exceptions were not sufficient to call to the trial court's attention the objection now urged and of course will not be considered. We do not mean to intimate, however, that the instructions were erroneous.
[4] Complaint is made of the refusal of the lower court to give appellants' requested instruction No. 12. Proper instructions were given by the court covering this phase of the case. The requested instruction, however, was erroneous. It announced the law as follows:
“You are instructed that if a person is assailed, being without fault, and at a place where he had a right to be and for a lawful purpose, and has reason to apprehend death or great bodily harm to himself or to his brother unless he kill his assailant, then the killing is excusable.”
It is not sufficient to justify the taking of human life that a person has reason to apprehend death or great bodily harm to himself unless he killed his assailant. He must entertain such belief and must act upon it. People v. Gonzales, 71 Cal. 569, 12 Pac. 783; Walker v. State, 97 Ga. 350, 23 S. E. 992; Batten v. State, 80 Ind. 394; State v. Matthews, 78 N. C. 523.
[5] Appellants complain because the court instructed the jury as to...
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State v. Nevares.
...from the standpoint of the accused. State v. Chesher, 22 N. M. 319, 161 P. 1108; State v. Dickens, 23 N. M. 26, 165 P. 850; State v. Parks, 25 N. M. 395, 183 P. 433. We have also held that proof of the impaired mental condition of an accused at the time of a homicide resulting from voluntar......
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