State v. Rogers.

• Decision Date: 14 June 1926
• Docket Number: No. 3078.,3078.
• Citation: 31 N.M. 485,247 P. 828
• Parties: STATEv.ROGERS.
• Court: New Mexico Supreme Court

31 N.M. 485

247 P. 828

STATE

v.ROGERS.

No. 3078.

Supreme Court of New Mexico.

June 14, 1926.

Syllabus by the Court.

Section 14 of article 2 of the Constitution of New Mexico, as amended at the 1924 general election (see Laws 1923, p. 351), providing that, “No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or Attorney General or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination,” is self-executing.

A constitutional provision which is complete in itself needs no further legislation to put it in force, but is self-executing.

In the prosecution of a defendant by information for a felony, it is not necessary that the information should allege that the defendant had had a preliminary examination before an examining magistrate, or had waived such preliminary examination.

When the information is filed in court by the officer authorized by the Constitution to file same, the presumption of law is that it is legal–that the examination of the defendant has been had or waived.

Whether an examination has or has not been had is not a question of pleading, but a question of fact, to be raised by the defendant or not, at his option, by plea in abatement or otherwise.

Although information alleges that there was a preliminary examination, it, being an immaterial allegation, need not be proved as a distinct fact.

The court having defined murder without making application of the definition to the facts of the case, and this being a prosecution of the defendant for assaulting another with intent to murder him, the court should have given defendant's tendered instruction No. 5, which defined murder and applied such definition to the case on trial, coupled with a declaration as to the essential element of intent to effect the death of the prosecuting witness.

The court having instructed the jury that in order to justify a verdict of guilty of the crime of assault with intent to murder, the facts and circumstances proved in the case must be such that if death had resulted from the shooting the jury would have found the defendant guilty of one of the degrees of murder, and, it being the theory of the defense that if death had resulted from the shooting in this case the defendant would have been guilty of no greater offense than manslaughter, he was entitled to his requested instruction No. 6, which presented this theory.

The court's instruction No. 8 is as follows:

“If you believe from the evidence and beyond a reasonable doubt that Marcelino Padilla was injured by a bullet fired from a rifle by the defendant which she then and there held, and defendant was then and there unlawfully, deliberately, and with premeditated malice firing said rifle without any excuse or justification, and in a way greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life, and said Marcelino Padilla was then and there in a place where he had a right to be, then the defendant is guilty as charged in the information.”

Held this instruction to be error, because it omits the requirement that there must have been an intent to murder on the part of the defendant, and only requires an intent to perpetrate the act of shooting the rifle in a way greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life.

Additional Syllabus by Editorial Staff.

“Hearing” means examination of prisoner and of witnesses for accused; “preliminary hearing” and “preliminary examination” being synonymous.

“Committing magistrate” is one who must on probable evidence, commit accused for trial or require bail, and is synonymous with “examining court.”

Appeal from District Court, Santa Fé County; Holloman, Judge.

Mrs. John Rogers, alias Teresa Rogers, was convicted of assault with intent to murder, and she appeals. Reversed and remanded for a new trial.

Although the information alleges that there was a preliminary examination, it, being an immaterial allegation, need not be proved as a distinct fact.

Catron & Catron, of Santa Fé, for appellant.

John W. Armstrong, Atty. Gen., and J. N. Bujac, Asst. Atty. Gen., for the State.

BICKLEY, J.

The appellant, Mrs. John Rogers, alias Teresa Rogers, was, on the 7th day of April, 1925, in Santa Fé county, N. M., charged by information filed by the assistant district attorney for said county with an assault with intent to murder Marcelino Padilla. The information charges that the defendant did make an assault upon the person of Marcelino Padilla while armed with a rifle, which rifle was loaded with gunpowder and leaden bullets, which said rifle defendant had and held in her hands, and which she, the defendant, did shoot off and discharge at, towards, in and upon him, the said Marcelino Padilla, thereby and thus striking him with one of said leaden bullets thus shot off and discharged out of said rifle, inflicting upon the arm of said Marcelino Padilla two serious, grave, and painful wounds, “with intent then and there him, the said Marcelino Padilla, to kill and murder, contrary to the form of the statute in such case made and provided.” The testimony of the prosecution shows that on the night of Washington's Birthday, February 22, 1925, there was a dance at Cerrillos, Santa Fé county, N M. After the dance Jose Rael, Samuel Martinez, Simplico Leyba, and Lalo Espinosa went to the house of defendant to drink some “chake” beer. Enrique Berraras and Pedro Gonzales were already there. The concensus of opinion is that this “chake” beer is not intoxicating, but is similar to near beer. This seems not to be material to the case. Enrique Berraras broke some glasses. The defendant came in from another room and told him not to break her glasses and to please leave the house. Enrique Berraras grabbed defendant by the throat and pushed her aside. This angered defendant, and she told Enrique that she would show him who she was, or words of like character. She then went into another room and got a rifle and came back. In the meantime Enrique Berraras and Pedro Gonzales had left the house. Defendant went outside, taking the rifle with her, the other people remaining inside. Three shots were heard, and then Mrs. Rogers came back in the house and put the gun away. When Enrique Berraras and Pedro Gonzales left, they went back of Mrs. Roger's house, but when the shots were fired they ran away. Witnesses did not see who fired the shots, nor do they know in what direction they were fired. It was very dark, and between 12 and 1 o'clock at night. After defendant came back to the house she asked Lalo Espinosa to leave, and he left. A few minutes after Lalo Espinosa left, one of the windows in another room of the house was broken, and in about three minutes another window in another room of the house was broken. These windows were broken with rocks from the outside. Mrs. Rogers then got her gun and went out, and three shots were heard, but no one saw who fired them nor in what direction they went. In about five minutes some more shots were fired, and Mrs. Rogers came in the house. At the time of the firing of the last three shots some one outside uttered a cry, and Mrs. Rogers asked Jose Rael to go and see who was hurt. Jose Rael went out, and he and Lalo Espinosa found Alfredo Martinez on the ground and took him to his house. At the time of the firing of the first shots, Alfredo Martinez was at home in bed. His mother called him, and he got up and went to get Marcelino Padilla. Both Alfredo Martinez and Marcelino Padilla were deputy sheriffs of Santa Fé county. After the second group of shots had been fired, they both started toward the house of Mrs. Rogers, from which direction the shots seemed to have been fired. They approached the house on the west side, traveling south, where there was a window to a lighted room. When they had come to within 25 or 30 feet of the house to one side of the window but not within the light cast through the window, Padilla was cautioning Martinez not to get within the light of the window, as some one might shoot from the window. At this time a shot was fired from a southerly direction. The bullet struck a rock or some other object, exploded, and a small particle of the bullet struck Marcelino Padilla in the right arm, piercing the skin and lodging between the skin and flesh. Something scratched his left hand, but he does not know what. Two other shots were fired about the same time and hit Alfredo Martinez in the right leg. It was so dark that the witnesses could not see any distance. They did not see where the shots were fired from nor who fired them. The defendant was arrested by Marcelino Padilla, who took her with him to Dr. Palmer's house to have his wounds attended to. He was advised that there was no necessity to remove the particle of exploded bullet, and it was not removed until several months later. At no time had Marcelino Padilla been at the house of Mrs. Rogers that night before he went there and arrested her. Marcelino Padilla testified that he was only hit by a part of the bullet, and that the bullet evidently had exploded when it hit against something; that there were rocks on the ground; and that there were cottonwood trees on the left side (inferentially on the left side of where the witness was standing when hit).

The testimony adduced by defendant does not substantially conflict with the testimony of the prosecution, but adds to and shows the declared intention of the defendant in firing the shots. The following is a narrative statement of the defendant's testimony, taken from the brief of defendant's counsel, which we think is substantially correct:

“Mr. Clyde Hendricks,...