State v. Rodriguez.

• Decision Date: 27 August 1917
• Docket Number: No. 1953.,1953.
• Citation: 167 P. 426,23 N.M. 156
• Parties: STATEv.RODRIGUEZ.
• Court: New Mexico Supreme Court

23 N.M. 156

167 P. 426

STATE

v.RODRIGUEZ.

No. 1953.

Supreme Court of New Mexico.

Aug. 27, 1917.Rehearing Denied Sept. 15, 1917.

Syllabus by the Court.

Where a juror had an opinion as to defendant's guilt, which he had formed from public rumor as to what the facts in the case purported to be, but he unequivocally stated that he could and would lay aside his opinion and try defendant impartially on the evidence, he was a competent juror.

No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a juror was rejected by the court upon insufficient grounds, unless, through rejecting qualified persons, the necessity of accepting others not qualified has been purposely created.

There was no error in admitting a portion of the skull of the deceased, where properly identified, for the purpose of illustrating the nature of the wound.

The scope and right of the cross-examination are generally limited to subjects upon which the witness has been interrogated on direct examination.

The trial judge may at his discretion permit a witness to be recalled, in order to be reexamined by the party recalling him.

If the witness, upon cross-examination as to a former statement made by him relative to the subject-matter of the cause, and inconsistent with his present testimony, does not distinctly admit that he did make such statement, proof may be given that he did in fact make it; a proper predicate for the admission of such testimony having been laid.

The flight or concealment of the accused raises no presumption of law that he is guilty; but it is a fact which may be considered by the jury, and from which they may draw an inference, in connection with other circumstances, and in the absence of an explanation of the reasons or motives which prompted it, that he is guilty; and evidence of flight or concealment is admissible, whether other evidence of guilt be direct or circumstantial.

Instructions to the jury are to be considered as a whole, and where, so considered, they fully protect the defendant, he cannot complain.

It is well settled that, if the intent to take life is executed after deliberation and premeditation, though but for a moment or an instant, the crime may be murder in the first degree.

It is not error to refuse a requested instruction, even if correct in law, if the instructions given by the court on its own motion fully cover the law in the case.

When the judge has given in a charge the correct definition of reasonable doubt, it is not error to refuse to instruct the jury that it is incumbent upon the state to establish the guilt of the defendant of some offense embraced within the indictment, to the exclusion of every reasonable doubt in the mind of the jury, before a verdict of guilty can be returned, and that the minds of each and all of the jury must concur in the verdict, and, if any one of the jury has a reasonable doubt as to whether the defendant was justified or excused in what he did, the jury cannot convict.

Additional Syllabus by Editorial Staff.

The doctrine of reasonable doubt is properly expressed by an instruction to the jury in the following language: “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 that you have an abiding conviction of the truth of the charge, then you are satisfied beyond a reasonable doubt.”

Appeal from District Court, Chaves County; McClure, Judge.

Juan Rodriguez was convicted of murder in the first degree, and he appeals. Affirmed.

When a witness, upon cross-examination, neither directly admits nor denies acts or declarations about which he is questioned, it is competent for the adversary to prove the affirmative.

The appellant, Juan Rodriquez, was indicted at the November, 1915, term of the district court of the county of Chaves, charged with murder of one Monroe Cartwright. Trial was had, resulting in a conviction of murder in the first degree and sentence of death imposed, from which judgment appellant prosecutes this appeal. The facts, briefly stated, are as follows:

The deceased, Monroe Cartwright, with his daughter, Mrs. Nora Havens, and her two children, came to Roswell from their ranch on August 25, 1915, for the purpose of purchasing supplies. While in Roswell, the appellant, Juan Rodriquez, approached the deceased to apply for work. At a later hour in the day, the deceased employed the appellant, paying him some money, and all the parties referred to left Roswell late in the afternoon for the ranch. It appears from the evidence that the appellant had previously worked for the deceased as a sheep herder and camp cook. The deceased was a man of about 67 years of age, whose eyesight had been failing for several years, and who was unable to drive a team or go about his business unaccompanied. The appellant was a young man, about 24 years of age.

After leaving Roswell, the parties drove some 12 or 13 miles and stopped for the night, camping out in the open. The appellant made down his bed apart from the others, but a short distance away. The deceased, with one of his grandchildren, made down a bed; and the daughter, Mrs. Havens, with her younger son, occupied a camp bed very close to the bed of her father and other son. According to the testimony of Mrs. Havens, she was awakened by a noise during the night, and saw the appellant standing at the head of her father's bed with a breast yoke in his hands and in the act of striking at the deceased; that she screamed, and the deceased awoke and started to arise, whereupon the appellant struck him a blow over the head with the breast yoke, felling him to the ground; that she ran to the place where her father was lying, picking up his bed; and that while she was assisting her father, the appellant struck him again over the head with the same weapon. She further testified concerning the statement, made by appellant in Spanish, demanding that she come to his bed, and that with the help of her children she finally broke from the grasp of the appellant, who had laid hands upon her, gave him some money, and a pair of slippers, on condition that he go away; that he then took the team and rode away. The testimony of the two children of Mrs. Havens is corroborative of hers in essential details.

The defendant testified that, when he met the deceased and Mrs. Haven in the wagon yard in Roswell on the morning of the day in question, she stated to him that he might come to her bed that night, and that during the course of the night he went over to the bed of Mrs. Havens, and that while sitting there, engaged in conversation with her, deceased got up and came toward him with a knife in his hand, and that while attempting to back away from the deceased he fell over the wagon tongue, and upon arising picked up the neck yoke and struck the deceased, in order to prevent him attacking him with the knife; that he struck him only one blow, whereupon the deceased fell to his knees, and that he did not strike him again; that he remained in the camp about 20 or 30 minutes, and that Mrs. Havens gave him some money and told him to go. He testified, further, that he had in his pocket two bottles of whisky, and that he had been drinking from these bottles, as well as imbibing at the saloons in Roswell, before he left with the deceased and his family. It appears, further, that during the course of the trial and before the jury was impaneled, the appellant, while being conducted from the courthouse to the jail by the sheriff, struck the sheriff, knocking him down, and made his escape, not being apprehended until two days later. Upon his return, the trial was resumed, resulting in the conviction of the defendant as indicted.

The deceased was brought to Roswell shortly after the injury was inflicted, and he died at 11 o'clock in the forenoon of the same day, from the result of the blow or blows administered by the appellant. Other facts will be referred to in the opinion.

R. D. Bowers and C. O. Thompson, both of Roswell, for appellant.

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

HANNA, C. J. (after stating the facts as above).

[1] The first three assignments of error are based upon the alleged erroneous action of the trial court in overruling the defendant's challenge for cause to the three veniremen, Beers, Johnson, and Rice, each of whom was subsequently peremptorily challenged by the defendant. It is apparent from examination of the record that each of the veniremen admitted having formed an opinion regarding the merits of the case. The veniremen were carefully examined by counsel for the state and for defendant, and finally by the court. In response to questions by the court, each of the veniremen stated that he could lay aside the opinion formed from reading the newspaper articles and not allow the same to influence his verdict in any way, and that, if retained as a juror, he would base his verdict solely upon the evidence received from the witness stand and the instructions of the court. In the case of Territory v. Emilio, 14 N. M. 147, 89 Pac. 239, the territorial Supreme Court held, in an opinion by Mr. Justice Parker, that:

“Where a juror had an opinion as to defendant's guilt, which he had formed from public rumor as to what the facts in the case purported to be, but he...