State v. Romero

• Decision Date: 13 January 1930
• Docket Number: No. 3445.,3445.
• Citation: 285 P. 497,34 N.M. 494
• Parties: STATEv.ROMERO
• Court: New Mexico Supreme Court

34 N.M. 494

285 P. 497

STATE

v.ROMERO

No. 3445.

Supreme Court of New Mexico.

Jan. 13, 1930.

Syllabus by the Court.

Motion for continuance is addressed to the sound discretion of the trial court, and, in the absence of prejudice, overruling it is not error.

Question whether witness has sufficient mentality to be allowed to testify is for the court, and the credibility of the testimony is for the jury.

Where an ignorant person is called as witness, and becomes confused or excited on the stand, it is the right and duty of the court to relieve him of fear or nervousness, to the end that what he knows may be given in evidence as far as he is able to give it.

Removing prisoner's shoe and comparing it with tracks at scene of homicide does not violate the right to be protected from self-incrimination.

Where pistol is admitted in evidence on condition that it be connected by other testimony, failure to move to strike at the conclusion of the testimony waives the question of error in its admission, even if it was not so connected.

Where instruction tendered by defendant in homicide case tells jury that absence of proof of motive “affords a presumption of innocence,” it is properly refused.

Cumulative instruction is properly refused.

Motion for new trial is addressed to the sound discretion of the trial court, and where the ground alleged is that four members of the jury went with a bailiff to a toilet while the remaining eight waited for them in the custody of another bailiff, and there is no showing of prejudice, there is no error in overruling the motion, although the trial court had ordered the jury kept together.

Appeal from District Court, San Miguel County; Armijo, Judge.

Pablo Romero was convicted of murder in the second degree, and he appeals.

Affirmed.

Where an ignorant person is called as witness, and becomes confused or excited on the stand, it is the right and duty of the court to relieve him of fear or nervousness, to the end that what he knows may be given in evidence as far as he is able to give it.

Jose E. Armijo, of Santa Fé, and H. E. Blattman, of East Las Vegas, for appellant.

M. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.

SIMMS, J.

On May 27, 1928, at about 8 o'clock in the evening, Victoriano Savedra was shot in the back and killed. Within an hour the appellant was arrested as he stood with a crowd which had gathered around the body. Next day he was charged with murder, and was given a preliminary examination before a magistrate, who bound him to the district court and committed him to jail without bail. At this preliminary he was represented by able counsel, who continued in his defense throughout the trial in the lower court. On the 31st, the district attorney filed a murder information against appellant, and trial opened on June 5th, resulting in a conviction for murder in the second degree.

[1] 1. Appellant moved for a continuance on the ground that (a) the current term of court was in session when he was examined, committed, and informed against, and that he could not lawfully be tried until the next term, and (b) that the time given him was too short for preparation.

Section 3265, Code of 1915, cited by appellant, does not sustain his contention. It provides that, where one is committed without bail, he shall remain in jail “until he be discharged by due course of law.” Appellant's defense was alibi. The persons with whom he claimed to have been when the crime took place, and one of whom he stated in his motion he could not get in time for the trial, were all in fact present at the trial, and testified for the defendant. In the absence of prejudice, the overruling of the motion was within the sound discretion of the trial court. State v. Kelly, 27 N. M. 447, 202 P. 524, 21 A. L. R. 156; State v. Garcia, 26 N. M. 72, 188 P. 1104; Territory v. Emilio, 14 N. M. 155, 89 P. 239.

[2] 2. Next, appellant says that there was error in permitting one Remigio Padilla, a witness for the state, to testify, because of his defective mentality. This witness, a man of mature years, claimed that he saw defendant do the killing. He described the circumstances in detail. He could not identify the points of the compass by name, but he could tell where the sun rose and set. He did not know his age, nor that of his sister, but he could testify as to other ordinary facts of common knowledge. It was for the trial court who heard him to say whether he was sufficiently intelligent to testify. State v. Ulibarri, 28 N. M. 108, 206 P. 510; State v. Ybarra, 24 N. M. 417, 174 P. 212. The question of his credibility was for the jury.

[3] 3. During the examination of the witness Remigio Padilla, the court addressed to him this remark: “Don't be afraid to testify; what the attorneys want and what the court wants is for you to testify to the truth, absolutely the truth and nothing else, and you should not be afraid; don't hesitate to make answer to questions asked you.”

Appellant says the remarks of the court were such as to indicate to the jury that the witness was intimidated, and that they therefore amounted to a comment by the court upon the witness' testimony. We do not deem the objection sound. It frequently happens that a witness, especially one who is ignorant or immature, becomes confused and excited on the stand. It is not only the right but the duty of the trial judge in a proper case to do what he can to relieve the witness from fear or nervousness, to the end that the truth may be given in evidence as far as the witness is able to give it. Abbott's Criminal Trial Brief (3d Ed.) page 427, 428; Kearney v. State, 101 Ga. 803, 29 S. E. 127, 65 Am. St. Rep. 344. The court said nothing which could fairly be understood as charging the appellant with having intimidated the witness.

[4] 4. While the appellant was in jail, the...