State v. Pruett.

• Court: New Mexico Supreme Court
• Writing for the Court: PARKER, J.
• Citation: State v. Pruett, 22 N.M. 223, 160 P. 362, 1916 NMSC 75 (N.M. 1916)
• Decision Date: 23 September 1916
• Docket Number: No. 1845.,1845.
• Parties: STATEv.PRUETT.

22 N.M. 223

160 P. 362

STATE

v.PRUETT.

No. 1845.

Supreme Court of New Mexico.

Sept. 23, 1916.

Syllabus by the Court.

A motion for a continuance is addressed to the sound discretion of the trial court which will not ordinarily be disturbed, especially in the absence of injury to the moving party.

The admission of an item of evidence which is immaterial and which, technically, is inadmissible, where it in no way reflects upon the guilt or innocence of the defendant, and is consequently not prejudicial to him, is not sufficient cause to reverse a judgment.

Evidence of the communication to the deceased of a threat of the defendant against him, is relevant, where, as in this case, the evidence for the prosecution as to the actual occurrence at the time of the homicide is entirely circumstantial, and where the action of the deceased, under the circumstances, was to be determined without the aid of direct proof, except as developed by the testimony of the defendant.

Any witness may express an opinion, upon a nontechnical subject, based upon data which he has observed, when it is impossible by word of mouth or gesture to reproduce the data before the jury so that the jury may intelligently draw the inferences therefrom which the witness has drawn. The principle applies to opinions in regard to kneeprints of a man.

Evidence of a meeting of witnesses for the prosecution to organize a mob to hang the defendant, if it establishes such meeting, is admissible to show bias and prejudice of such witnesses. But where such evidence fails to show such meeting, it was correct for the court to strike it out on motion of the prosecution.

Evidence that the deceased knew he would meet the defendant on the road at a certain place and that he went there armed is material and competent in a case like the present as reflecting upon the state of mind and probable conduct of the deceased when he met the defendant.

The defense put upon the stand a witness, Silas Crook, who testified to the circumstances of the first difficulty between the defendant and the deceased, occurring about one week before the homicide. He was asked on cross-examination whether, on the next day, he had not told one Walter Hern that the wife of deceased would be a widow within a week. On rebuttal, the prosecution was permitted to prove by the witness Hern that the witness Crook had made such statement. The evidence is held to be inadmissible from any standpoint, and to be highly prejudicial to the defendant, requiring a reversal of the case.

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

James C. Pruett was convicted of voluntary manslaughter, and appeals. Reversed and remanded, with instructions to award a new trial.

Where a witness testified as to the first difficulty a week before the homicide, and denied on cross-examination that he had said that defendant had said that the wife of deceased would be a widow within a week, rebuttal evidence that he had so stated was inadmissible on any theory.

O. P. Easterwood, of Clayton, for appellant.

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

PARKER, J.

Appellant shot and killed one Cleasie Cheek on October 17, 1914. He was indicted for murder on March 5, 1915, and thereupon entered a plea of not guilty on that day. The case was set down for trial for March 12th, but the trial did not begin until March 15, 1915. Appellant was convicted of voluntary manslaughter and sentenced to the penitentiary for the term of not less than eight nor more than ten years.

[1] 1. Upon the coming in of the indictment and the entry of the plea of not guilty, appellant filed his motion for a continuance, based on the following grounds, viz.: (1) That his principal attorney, Theodore Pruett, a brother of appellant, resided in Anadarko, Okl., and was then engaged in the trial of causes in the district courts of Oklahoma, and on that account was unable to absent himself from his business there to appear at Clayton, N. M., where this trial was to be had; that he had employed Mr. O. P. Easterwood of Clayton, N. M., to assist his principal attorney, but that he had never communicated to him in detail the facts in regard to his defense, and had no opportunity to do so for the reason that he had been and then was confined in jail; and that said Easterwood was so engaged with other business at the then pending term of court that he would not be able to prepare appellant's defense until the next term of court. (2) That defendant did not have sufficient funds with which to secure the attendance of his witnesses, and that he had not less than from 12 to 20 whom he needed in his defense. (3) That on account of the high state of excitement and prejudice in the locality of the homicide, and on account of the numerous threats by people residing in such locality, and the great danger to the life of appellant and his said brother, they had been afraid to visit the locality for the purpose of gathering the evidence necessary for his defense. (4) That a large number of witnesses had appeared before the grand jury which indicted appellant, and that he could, if allowed sufficient time to visit the neighborhood of the homicide, procure evidence to impeach and discredit the testimony of a large number of such witnesses, but that at the time of making of the affidavit he had no way of knowing the names of such proposed witnesses. (5) That appellant could, if permitted time and opportunity, procure witnesses to show that the deceased was a quarrelsome and dangerous man, and that appellant was a quiet, peaceable, and law-abiding citizen; that appellant's character witnesses were mostly residents of Oklahoma, and had signified their desire and willingness to attend the trial upon reasonable notice, but that on account of the condition of the roads in Oklahoma it was impossible to gather these witnesses and get them to Clayton for the trial. (6) Appellant was informed that the prosecuting witnesses in the cause had employed two or three firms of attorneys to assist in the prosecution of the cause, and that a great deal of money had been expended by them in securing evidence and witnesses against the defendant, and that the defendant was without funds to meet such an array of counsel and witnesses at the present term of this court, but that he could do so and could secure evidence to discredit or rebut the evidence of such witnesses at the next term of the court.

A counter affidavit was filed by two attorneys who had been employed to assist in the prosecution, in which they state that they had recently visited the scene of the homicide and had made careful inquiry as to the state of feeling in the locality against the defendant, and that, so far as they could ascertain, no feeling of hostility existed, and that no foundation for any apprehension of any violence toward the defendant or any one representing him, who might go into that locality seeking evidence, existed, and that according to their best information and belief, the defendant or any one representing him might have gone into the locality for the purpose of securing evidence without danger or molestation.

The court overruled the motion for a continuance. The principal attorney, the brother of the appellant, appeared at the trial and participated in the same. The appellant produced at the trial 21 witnesses in his behalf, thus showing that, notwithstanding his fears, he was, as a matter of fact, able to produce his witnesses and have them testify in the case. The appellant admitted the killing, claiming that it was done in self-defense. There was no eyewitness to the homicide. All of the testimony in the case was circumstantial, except that of the defendant and his declarations made to other persons. In the motion for a new trial no showing whatever is made of any prejudice to the defendant by reason of the absence of witnesses whom he might have secured had he had further time in which to do so.

In the brief of counsel for the appellant, no reliance is placed upon the fact that the Oklahoma witnesses could not be produced at the trial, and we assume that no injury is now predicated thereon.

Under such circumstances we do not understand how the appellant can complain of the action of the court in overruling the motion for a continuance. It does not appear that he suffered any injury whatever. His principal counsel from Oklahoma was present at the trial, and, so far as appears, all of the witnesses upon whom he relied, 21 in number, were present and testified. Even if the action of the court, at the time the motion for a continuance was overruled, could have been subject to criticism, the appellant is in no position to complain of the same here, he having suffered no injury therefrom. The doctrine in this jurisdiction is firmly established that a motion for continuance is addressed to the sound discretion of the trial court, and ordinarily the court's action thereon will not be disturbed. Territory v. Padilla, 12 N. M. 1, 71 Pac. 1084; Mogollon G. & C. Co. v. Stout, 14 N. M. 245, 91 Pac. 724; Ross v. Carr, 15 N. M. 17, 103 Pac. 307; Perea v. Insurance Co., 15 N. M. 399, 110 Pac. 559; Territory v. Lobato, 17 N. M. 666, 134 Pac. 222; Territory v. Emilio, 14 N. M. 147, 89 Pac. 239.

In this case there was no abuse of discretion nor injury to the appellant, and of course he cannot complain in this court under such circumstances.

[2] 2. It appears from the record that the difficulty between appellant and the deceased originated out of the fact that the deceased, in a violent manner and while armed with a pistol, ordered the appellant off and away from the Cross L. Ranch, where he was at the time. It appears that the deceased was one of the older hands upon the place, and that a man by the name of Trumball was foreman of the ranch. Upon leaving the ranch the foreman instructed the deceased that if the appellant came upon the ranch during his absence to order him off. The...