State v. Roy

Decision Date21 July 1936
Docket NumberNo. 4118.,4118.
Citation60 P.2d 646,40 N.M. 397
CourtNew Mexico Supreme Court


Appeal from District Court, Bernalillo County; Joseph L. Dailey, Judge.

Hyman Roy was convicted of murder, and he appeals.


In murder prosecution where there was no evidence reasonably tending to show that defendant at time of commission of crime was unable to distinguish right from wrong, refusal to submit issue of insanity held not error.

G. W. Robertson, of Raton, and M. C. Mechem, of Albuquerque, amici curiæ.

D. A. Macpherson, Jr., and A. H. McLeod, both of Albuquerque, for appellant.Frank H. Patton, Atty. Gen., and Quincy D. Adams and Edward P. Chase, Asst. Attys. Gen., for the State.

ZINN, Justice.

This case involves the life of Hyman Roy, who was tried and convicted for the murder of Martha Hutchinson. He was sentenced to the electric chair. The case is here on appeal.

On September 20, 1934, one Joe Browning and Martha Hutchinson, both colored, drove in front of the gasoline tanks of a garage in Albuquerque, N. M., and as their car came to a stop another car driven by the defendant (appellant here), also colored, came opposite the first car. Defendant, using a revolver, shot and killed Joe Browning. Martha Hutchinson ran into the garage, and the defendant fired at her as she ran. The defendant followed her into the garage, where he found her behind some oil barrels, and fired a number of shots into her back from which she died.

Ten points are assigned for the consideration of this court as follows:

First. That chapter 84 of the Laws of 1933 is unconstitutional in that it delegates legislative powers to the judiciary.

Second. That the information used in this case is inherently defective and insufficient and the conviction accordingly illegal and void.

Third. That the court erred in denying the defendant a continuance.

Fourth. That the court erred in fixing the date of execution at a date prior to the full term allowed for appeal.

Fifth. That there was evidence in the record that the defendant was insane, and the court erred in refusing a requested instruction on insanity.

Sixth. That the court erred in refusing to allow the defendant to elicit from a witness testimony which would show certain actions and peculiarities on the part of the defendant. This relates to the defendant's attempted insanity defense.

Seventh. That the court erred in allowing a witness to testify to a conversation had over the telephone with the defendant.

Eighth. That the court erred in not instructing the jury to disregard certain statements which defendant claims the district attorney injected into the record and which the defendant urges were highly prejudicial to him.

Ninth. That the court erred in allowing a witness, over the objection of the defendant, to testify to another crime by the defendant.

Tenth. That the giving by the court of a certain instruction was error.

We will briefly dispose of the latter eight assignments of error in the order of their presentation, reserving the first two for final discussion and disposition.

[1] Beginning with the third point: The defendant was given a preliminary hearing on September 24, 1934. The September, 1934, term of the district court of Bernalillo county had then started. The case was set for trial on October 8, 1934. On motion of defendant the trial was continued until October 11, 1934, at which time the defendant filed a motion for continuance until the March, 1935, term. This motion was denied.

The defendant contends that the trial court erred in so ruling on the motion. It is the defendant's theory that the provisions of Comp.St.1929, § 79-804, are mandatory. This section provides that if at a preliminary hearing before a committing magistrate it appears to such magistrate that there is probable cause to believe the accused guilty, it becomes the duty of the magistrate by recognizance to “summon the prosecutor and all material witnesses against the prisoner, to appear and testify before the court having cognizance of such offense, on the first day of the next term thereof, and not to depart from such court without leave.” The defendant claims that pursuant to this statute he could not be tried until the next term after the September, 1934, term (which is the March, 1935, term), and therefore the motion for continuance ought to have been granted.

Section 79-804 in no manner governs the rights of one accused of crime to a continuance. Section 79-804 is a chart to guide committing magistrates in some of their duties at a preliminary hearing. The defendant, having appeared before the trial court and moved orally for a continuance, which was granted to October 11, 1934, cannot now be heard to complain of the refusal of the trial court to grant an additional continuance without a showing of sufficient cause for such continuance.

[2] The fourth assignment of error is likewise without merit. The sentence of death against the defendant was entered on October 23, 1934.

The order provided that the defendant be executed on January 5, 1935. The statute (Comp.St.1929, § 35-321) provides that a warrant of execution upon judgment of death must set a date which must be not less than sixty nor more than ninety days from the date of judgment within which time the prisoner must be executed. The time within which an appeal from such judgment must be taken pursuant to trial court rules is ninety days. Rule 105-2501; Comp.St.1929, § 105-2526.

The fact that the defendant's execution was ordered at a day which compelled him to take his appeal before the ninety-day period had elapsed does not invalidate the judgment and sentence because of the alleged inconsistency between the statute and rule. Comp.St.1929, § 35-323, provides that the execution may be suspended if an appeal is taken. In the instant case an appeal was taken, granted, and an order entered and filed on December 19, 1934, staying the execution. The appeal was perfected, the execution stayed, and the defendant, we assume, is still alive. He has not been prejudiced and cannot complain.

[3][4][5] As to the fifth assignment of error, the trial court did not err in refusing to give an instruction on insanity as requested by the defendant.

A witness testified on direct examination that after the demise of the defendant's wife, the defendant became a changed man, in that the defendant “was polluted half the time or crazy or something, I don't know what was the matter with him.” This witness also testified that after the loss of defendant's wife and son, the defendant “came over to church a time or two, he cried around about it, he would just cry about it, go on about it, he wasn't at himself.” We assume the crying was induced by an emotional state in the nature of grief resulting from the loss to the defendant of his wife and son. On cross-examination this witness testified that the defendant after losing his wife and son “went on quite a bit about it and a longer period than I thought he should, for several months.” This witness thought that the defendant should have forgotten the loss sooner.

Another lay witness testified that about noon of the day of the homicide the defendant “looked kind of wild in his eyes *** just looked something out of the ordinary; figgety, like.”

The above-narrated evidence, if believed by the jury, does not tend to show that the defendant was insane to such an extent as to excuse the defendant from the legal consequences of his act. Sanity is the normal condition of man and insanity an abnormal state. In the absence of anything to the contrary, the presumption is that the defendant is sane and is criminally responsible for his act. 8 R.C.L. 175.

A plea of insanity by one accused of the commission of a crime may be likened to a plea of confession and avoidance in a civil action. The defendant admits that he committed the act or acts charged against him, but seeks to avoid a judgment or penalty on account of such act or acts, and to absolve himself from liability, on a sound legal theory.

In a criminal case the prosecutor may rest upon the presumption of sanity in establishing a prima facie case. It is then incumbent upon the defendant to overcome that presumption by competent evidence and to reasonably substantiate his plea of insanity. Such evidence must reasonably tend to show that at the time of the commission of the crime the defendant was incapable of distinguishing right from wrong so as to excuse him from the legal consequences of his act.

Stated another way: The state is obliged to establish the defendant's guilt beyond a reasonable doubt. Crimes involving a guilty intent cannot be successfully prosecuted against one charged who is insane, because an insane person does not have the capacity to form a criminal intent. Therefore, the burden of proof is upon the state to prove that the defendant is sane beyond a reasonable doubt. In the first instance, this burden is met or satisfied by the presumption that the defendant is sane.

It then becomes the duty of the defendant and upon him is the onus or burden of going forward with evidence to overcome this presumption.

[6][7] When the defendant has put in evidence reasonably tending to show him insane, the problem is then to determine whether it is sufficient to take the case to the jury. This is a question for the court to determine. Therefore, when all the evidence is in, if there has been adduced competent evidence reasonably tending to support the fact of insanity urged by the defendant as a defensive issue in the case, it is the duty of the court to instruct on the question of insanity. Otherwise, the court may properly refuse such instruction. 14 R.C.L. pp. 799-800, § 58; State v. Martinez, 30 N.M. 178, 230 P. 379.

[8] We have not departed from the “right and wrong test” as established in the famous McNaughten Case, 10 Clark & F. 199, 8 Eng. Reprint, 718, which is the generally accepted doctrine of...

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