State v. Roybal.
| Decision Date | 17 November 1928 |
| Docket Number | No. 3145.,3145. |
| Citation | 273 P. 919,33 N.M. 540 |
| Parties | STATEv.ROYBAL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The method and extent of cross-examination depends largely upon the discretion of the trial judge. Held, that the court did not abuse its discretion in refusing to permit counsel for appellant to show, on cross-examination of an adversary's witness, that there were family disagreements between the father and mother of the defendant, and that the witness had taken sides with one of the members of the family, and the defendant with the other, and out of such disagreement had grown a feeling of hostility between the parties, where the record shows that the witness said in answer to direct questions that his relations with the defendant were unfriendly; there being no showing that the answer sought to be elicited would show a greater degree of hostility than the witness had admitted. State v. Burkett (N. M.) 262 P. 532, distinguished.
While the right of cross-examination, thorough and sifting, should not be abridged, nevertheless, even upon cross-examination, where an answer to a question propounded to a witness is refused by the court, and such refusal is assigned as error, it must appear that counsel, on the trial, stated to the court, either what he expected, or, if that is impracticable or impossible, what he desired to prove, by the answer to such rejected question. Upon failure of such statement to the trial court, this court cannot review the alleged error.
The error of the district court in sustaining an objection to a question asked for the purpose of laying the foundation for impeachment under section 2179, Code 1915, is not available to the appellant when, as a matter of fact, he is permitted to prove that the witness had been convicted of the crime inquired about.
Under section 2179, Code 1915, the guilt or innocence of the witness of the crime for which he had been convicted, his punishment, his term of service, are immaterial. The fact of the conviction of the witness, the name of the particular felony or misdemeanor of which the witness had been convicted, may be shown. Beyond this the examination should not go.
Additional Syllabus by Editorial Staff.
Where evidence in criminal prosecution is conflicting, and there is evidence to support the verdict, it is conclusive on appeal.
Appeal from District Court, Taos County; Kiker, Judge.
Venceslado Roybal was convicted of assault with a deadly weapon, and he appeals. Affirmed.
The method and extent of cross-examination depends largely upon the discretion of the trial judge. Held, that the court did not abuse its discretion in refusing to permit counsel for appellant to show, on cross-examination of an adversary's witness, that there were family disagreements between the father and mother of the defendant, and that the witness had taken sides with one of the members of the family, and the defendant with the other, and out of such disagreement had grown a feeling of hostility between the parties, where the record shows that the witness said in answer to direct questions that his relations with the defendant were unfriendly; there being no showing that the answer sought to be elicited would show a greater degree of hostility than the witness had admitted.
Renehan & Gilbert, of Santa Fé, for appellant.
R. C. Dow, Atty. Gen., and F. H. Patton, Asst. Atty. Gen., for the State.
This case is appealed from the district court of the Eighth judicial district, wherein the defendant, Venceslado Roybal, was convicted of assault with a deadly weapon upon the person of one Rafael Vigil.
The defendant, his wife, two uncles, his father-in-law, and brother-in-law, went to the house of the prosecuting witness, where the defendant desired to see his mother, who was staying with said prosecuting witness, Vigil. The mother of the defendant had previously been staying with the defendant, but, after his departure to secure employment in Colorado, she left defendant's home and went to the home of the prosecuting witness, and upon defendant's return from Colorado, and learning of the absence of his mother, he, either upon his own volition or upon her request, went with his other relatives to the prosecuting witness' house to converse with his mother. When defendant and the other parties arrived at Vigil's house, Vigil himself was not at home, but shortly thereafter, returned, while defendant was conversing with his mother. While defendant was sitting on the side of his mother's bed and talking with her, the prosecuting witness interposed a remark directed to the defendant, and, as he testified, because of the language used by the defendant, and this action on his part, immediately precipitated a fight.
Vigil, the prosecuting witness, testified that, when Elizardo Roybal, his uncle, took hold of him, and Benito Roybal took hold of the defendant, the defendant raised his two hands and drew a gun, and in the same act raised the hammer of the gun and directed it toward him, but that the brother-in-law of the defendant, Fidel Sandoval, struck the gun and deflected the bullet when the pistol was discharged, causing it to go wild.
The wife of the prosecuting witness, Sarah Vigil, testified that, after her husband came into the house, and while the defendant was talking to the mother, who was also her mother, the defendant made the following remark, addressed to his mother, “I will give you all you want, if you will go to my house, provided that I do not want this sister of mine to enjoy anything;” and that her husband, Rafael Vigil, then made this statement, “Be careful in talking, Venceslado-I don't want any trouble in my house.” She testified that the defendant advanced toward her husband, and drew a pistol from his pocket, and that Fidel Sandoval took hold of the hand of defendant and diverted the direction of the pistol.
The defendant testified that he went to the house of Vigil's brother-in-law, upon the date the trouble is alleged to have occurred; that he had an automatic pistol; that he never took the pistol from his pocket; that he heard a shot from his rear; that he did not know who fired the shot; and that he never had the pistol in his hand; and that his brother-in-law, Fidel Sandoval, took the pistol from his pocket. Fidel Sandoval testified that he took a pistol from defendant's pocket, and that the wife of the prosecuting witness tried to take the pistol from him, and that, during the scuffle with her, it was discharged. The two uncles, Elizardo and Benito, testified that they did not see who fired the shot. Benito testified that he saw the wife of the prosecuting witness have hold of Fidel Sandoval's hand. The witness Elizardo Roybal testified that the defendant did not hold his hands up in the air with the pistol in them, and further that Mrs. Roybal, Sarah Vigil, and Fidel Sandoval, had hold of the gun. Apolonia Roybal, wife of the defendant, testified that the pistol was in the hand of the witness, Fidel Sandoval, when it was fired, and that the pistol was discharged when Sarah Vigil, wife of the prosecuting witness, and Fidel Sandoval, were struggling for its possession. It is thus evident that a pistol was discharged during the difficulty in Vigil's house, but, as to who was responsible for discharging it, the evidence is conflicting.
[1] The first point presented by the brief of counsel for appellant is that the court erred in sustaining the objection of the state to the questions propounded by the defendant, to the prosecuting witness, Vigil, as to ill feeling between the father and mother of the defendant. During the course of the cross-examination of the prosecuting witness, the following questions were propounded to the witness and excluded upon objection by the state:
“Q. You have known the defendant for a good many years, haven't you? A. Yes, sir.
Q. You knew his father, Isaias, before his death, did you not? A. Yes sir.
Q. You knew of the family troubles between Isaias and his wife, did you not?
Mr. Whelan: We object to that for the reason that its improper cross examination, immaterial and incompetent.
The Court: Objection sustained.
Mr. Gilbert: The defendant will state that this question was asked as preliminary to the question, and if permitted by the Court, the defendant will show that there were family disagreements between the father and mother of this defendant known to this witness, and that this witness had taken sides with one of the members of the family, and the defendant with the other, and that out of that had grown a feeling of hostility between the parties, we offer this as showing the hostility.
Mr. Voorhees: We object for the same grounds.
The Court: Objection sustained.
Mr. Gilbert: Is the offer denied?
The Court: Yes.
Mr. Gilbert: Exception.”
Immediately following the foregoing proceedings, the counsel for appellant developed, elicited from the prosecuting witness on cross-examination, the following answer to a question: “We were not on friendly terms,” and further that such unfriendliness had existed for three or four years. It will be seen that the question excluded on cross-examination, and the offer made by counsel for appellant, was for the purpose of showing hostility between the witness and the defendant, and pursued with the apparent purpose of affecting the credibility of the witness. It was not specifically claimed that the answers of the witness, if permitted, would show a greater degree of hostility than the witness admitted in answers to other questions. Neither the question nor the offer refused would show a state of feeling of the witness toward the defendant. The answers to such questions might show a cause of such unfriendly feeling. We are unable to perceive that affirmative answers to the questions propounded or offered would surely point to a greater degree of hostility than that admitted by the witness.
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