State v. Perkins

• Decision Date: 10 December 1915
• Docket Number: No. 1727.,1727.
• Citation: 21 N.M. 135,153 P. 258
• Parties: STATEv.PERKINS ET AL.
• Court: New Mexico Supreme Court

21 N.M. 135

153 P. 258

STATE

v.PERKINS ET AL.

No. 1727.

Supreme Court of New Mexico.

Dec. 10, 1915.

Syllabus by the Court.

The instruction approved by the territorial Supreme Court in the case of Territory v. Livingston, 13 N. M. 318, 84 Pac. 1021, as to the interest of the defendant in the result of the case adopted as a correct statement of the law.

The preferable instruction defining “reasonable doubt,” in this jurisdiction, is as follows: “A ‘reasonable doubt’ is such a doubt as would cause a reasonable and prudent man in the graver and more important affairs of life to pause and hesitate to act upon the truth of the matter charged. But a reasonable doubt is not a mere possibility of innocence, nor a caprice, shadow, or speculation as to innocence not arising out of the evidence or the want of it. You should carefully weigh and consider the evidence, and bring to bear upon it the exercise of common sense and judgment as reasonable men, and if, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, then you are satisfied beyond a reasonable doubt.”

A witness may be impeached, not only by his contradictory or inconsistent statements, but also by proof that on a former occasion, under circumstances where it was his duty to state the whole truth, he omitted to state material and relevant facts which he now states.

There are three sorts of evidence that may be introduced to impeach a witness: First, evidence relating to his character and directly tending to show that the witness lacks truthfulness; second, evidence showing that on former occasions, when purporting to fully narrate the facts, he neglected to state material facts testified to by him on the present occasion; third, evidence showing that his testimony on the present hearing materially varies from the acts done or statements made by him on other occasions.

Where a witness testifies to facts, his acts manifesting a belief in the existence of a variant state of facts may be shown.

Proof of the witness' particular overt acts of wrongdoing are ordinarily relevant as impeaching evidence, but such acts can never be shown by any evidence outside the examination of the assailed witness, and the extent of such examination rests largely in the discretion of the trial court.

Under section 2180, Code 1915, “the credit of a witness may be impeached by general evidence of bad moral character not restricted to his reputation for truth and veracity,” and it is error for the trial court to limit such testimony to the question of the reputation of a witness for truth and veracity.

Appeal from District Court, Torrance County; E. L. Medler, Judge.

Josiah Perkins and others were convicted of assault with intent to kill, and appeal. Reversed and remanded, with directions to award new trial.

The extent of the cross-examination of a witness as to particular overt acts of wrongdoing by the witness rests largely in the trial court's discretion.

E. A. Mann and Isaac Barth, both of Albuquerque, for appellants.

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

ROBERTS, C. J.

Appellants were indicted, tried, and convicted in the district court of Torrance county of having assaulted with intent to kill one Josephine Knapp. From the judgment sentencing them to the penitentiary, they appealed, and, the Attorney General confessing error, the cause was reversed and remanded for a new trial. Upon the second trial they were again convicted and sentenced, and prosecute this appeal.

[1] Many alleged errors are assigned, not all of which need be considered, as the practice in this jurisdiction is already well settled as to the points discussed, and attention to the prior decisions will enable the trial court and the parties to avoid a repetition of error where error was committed. For example, the court instructed the jury that, in order to determine what weight should be given the testimony of the defendants in arriving at their verdict, they should take into consideration the defendant's interest in the result of the case. In the case of Territory v. Livingston, 13 N. M. 318, 84 Pac. 1021, the law on this question is discussed, and an instruction given by the trial court approved. By conforming to such approved instruction, and the principles therein enunciated, all possibility of error will be obviated.

Appellants also contend that the instruction given by the court on reasonable doubt is erroneous. That instruction, in part, was to the general effect that a “reasonable doubt” was one based on reason, and which is reasonable in view of all the evidence. That instruction was approved by the Supreme Court of the United States in the case of Hopt v. Utah, 120 U. S. 431, 7 Sup. Ct. 614, 30 L. Ed. 708, but, as there was no proper exception taken to the instruction in the case at bar, it is unnecessary for us to determine whether the given instruction was correct or not. The following instruction on reasonable doubt we consider preferable in this jurisdiction:

“A ‘reasonable doubt’ is such a doubt as would cause a reasonable and prudent man in the graver and more important affairs of life to pause and hesitate to act upon the truth of the matter charged. But a reasonable doubt is not a mere possibility of innocence, nor a caprice, shadow, or speculation as to the innocence not arising out of the evidence or the want of it. You should carefully weigh and consider the evidence, and bring to bear upon it the exercise of common sense and judgment as reasonable men, and if, after considering all the evidence, you can say you have an abiding conviction of the truth of the charge, then you are satisfied beyond a reasonable doubt.”

The court instructed the jury that a witness may be impeached by showing that statements made out of court are contradictory of, and inconsistent with, his testimony on the trial of the cause concerning material matters, and by proof of bad character for truth and veracity. Appellants requested that the jury be instructed that a witness might also be impeached by proof of omissions of material and relevant facts in a former proceeding wherein the witness was sworn to tell the whole truth and nothing but the truth. It is a well-settled rule that a witness may be impeached, “not only by his contradictory or inconsistent statements, but also by proof that on a former occasion, under circumstances where it was his duty to state the whole truth, he omitted to state material and relevant facts, which he now states.” Underhill on Criminal Evidence, § 242; 1 Thompson on Trials, § 503; 40 Cyc. 2705. When an instruction properly containing the doctrine last mentioned is tendered to the court, and is properly applicable to the facts of the case, the court is bound to instruct the jury thereon.

Complaint is made of the instruction given by the court of its own motion concerning the defense of alibi. This question is thoroughly discussed in the recent case of State v. Smith, 153 Pac. 256, decided at the present term of this court, and nothing more need be said in this regard.

On the trial of the case there was evidence introduced by witnesses for the state, tending to establish the following facts: About 11 o'clock of the night of August 18, 1909, four horsemen rode up to the fence of the Kubena family, residents of Mountainair, and neighbors of Mrs. Knapp. One dismounted and posted a notice on the Kubena gate. The notice contained a threat to the effect that the Kubenas must leave the country within 24 hours or suffer the consequences, which they intended Mrs. Knapp to suffer. Those consequences were stated to be “shooting up of the Kubena home as we did Mrs. Knapp.” The four horsemen, whom Mrs. Kubena described as Noble, George Dunn, John Dunn, and one of the Lee boys, then rode east into a standing timber, dismounted, and were joined by four other men named Perkins, Griffin, Joiner, and Freak. These eight men then advanced toward the Knapp house and discharged a volley of shots at and towards that house. After the firing had ceased, Mrs. Knapp, who was occupying a bed in the northwest part of the house, arose, dressed, and went outside. She followed two men to the building occupied by Perkins as an office and home, where she overheard a conversation wherein Griffin asked whether they had killed Mrs. Knapp, and Perkins responded by saying that they would find out in the morning. Griffin then left the Perkins building, and Mrs. Knapp returned home. The Knapp residence was riddled with bullets, all entering about five to seven feet from the level of the floor. Upon the trial Mrs. Knapp testified that she recognized and identified two of the defendants on the night of the alleged assault, and the evidence shows that she knew them at that time, and had known them for some time prior to the occurrence. She was a very important witness for the state. The appellants sought to impeach her testimony in various ways. The seventeenth assignment of error is based on the refusal of the court to allow testimony offered by appellants tending to impeach the credibility of Mrs. Knapp.

“There are three sorts of evidence that may be introduced to impeach a witness: First, evidence relating to his character and directly tending to show that the witness lacks truthfulness; second, evidence showing that on former occasions, when purporting to fully narrate the facts, he neglected to state material facts testified to by him on the present occasion; third, evidence showing that his testimony on the present hearing materially varies from the acts done or statements made by him on other...