State v. San, 3219.

• Court: New Mexico Supreme Court
• Writing for the Court: PARKER, J.
• Citation: State v. San, 35 N.M. 105, 290 P. 322, 1930 NMSC 19 (N.M. 1930)
• Decision Date: 18 February 1930
• Docket Number: No. 3219.,3219.
• Parties: STATEv.WOO DAK SAN.

35 N.M. 105

290 P. 322

STATE

v.WOO DAK SAN.

No. 3219.

Supreme Court of New Mexico.

Feb. 18, 1930.Rehearing Denied June 20, 1930.Second Rehearing Denied Aug. 8, 1930.

Syllabus by the Court.

Plea of former jeopardy, to be available, must show that defendant and counsel objected to discharge of jury; demurrer to plea of former jeopardy is properly sustained unless defendant objected to discharge of jury and objection appears of record.

A plea of former jeopardy, to be available, must show that the defendant and his counsel made known to the court defendant's objection to the discharge of the jury, which showing of objection must appear by the record in the case. In the absence of such showing, a demurrer to the plea is properly sustained.

Promises of collateral benefit or boon not relating to immunity are not sufficient to render confession induced thereby inadmissible as involuntary; admission of confession obtained from drug addict under promise of administering drug held not erroneous under circumstances.

Promises of a collateral benefit or boon not relating to immunity from the consequences of the crime are not, ex proprio vigore, sufficient to render a confession induced thereby inadmissible as involuntary, and, where the inducements are not, under all the circumstances, sufficiently strong to overcome the will of the declarant so as to cause an innocent man to confess falsely, the confession is admissible.

Defendant sentenced to death by hanging will be resentenced to death by electrocution in accordance with later law (Laws 1929, c. 69, § 10).

Section 10 of chapter 69, Laws 1929, authorizes the district court in which a defendant has been sentenced to death by hanging, but who has not been executed pending appeal to this court, to resentence to death by electrocution in the state penitentiary.

Additional Syllabus by Editorial Staff.

Appellate court will not review discretion of trial court in determining necessity for discharge of jury before verdict, in absence of evidence showing abuse of discretion.

That man is on trial for crime does not relieve him of duty of objecting to error about to be committed which may result in injury.

Defendant failing to object to discharge of jury before verdict waives objection thereto.

Appeal from District Court, Grant County.

Woo Dak San, alias Woo Foo, was convicted of murder, and he appeals.

Affirmed.

Defendant failing to object to discharge of jury before verdict waives objection thereto.

Alvan N. White, of Silver City, for appellant.

R. C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

PARKER, J.

Inasmuch as we have determined to make a disposition of this case different from that indicated in the opinion heretofore handed down, that opinion will now be withdrawn.

On September 11, 1925, the appellant, Woo Dak San, alias Woo Foo, was charged by information with the murder of one Yee Foo in the district court of Grant county. On the same day the defendant was brought into court, arraigned, and pleaded not guilty to the charge in said information, and the cause was set for trial on the 15th day of September, 1925. A jury was duly and regularly impaneled and sworn, and, after the evidence was introduced and the cause duly submitted to the jury and they had been for some time considering of their verdict, they returned into court, and as appears from the journal entry the following proceedings were had:

“Come now the jury herein again into open court at 1.20 A. M. and through their foreman inform the court that they are unable to agree upon a verdict; that the jury as a body now stands 7 for conviction and 5 for acquittal and that one of the members of the jury standing for acquittal has informed his fellow jurors that he does not believe in capital punishment, which fact renders the arrival at a verdict, impossible.

“Now the foreman of the jury being asked by the court the name of the juror who declared in the jury room during the deliberation upon this verdict that he did not believe in capital punishment, the court was informed that the name of such juror is Anastacio Horcasitas.

“It is the further order of the court that the trial of cause No. 7988, wherein the State of New Mexico is plaintiff and Woo Dak San, alias Woo Foo is defendant, be and the same is hereby declared a mistrial, and that the said Woo Dak San, alias Woo Foo, be remanded to the custody of the Sheriff of Grant County, New Mexico, to be by him safely kept and confined in the common jail of Grant County, New Mexico, to await the further order of the court.”

[1] 1. The foregoing record and journal entry was originally made on the 17th day of September, 1925, and contained other matters relating to a proceeding against one of the jurors for contempt which were afterwards stricken out by the district judge. On March 1, 1926, the same being the first day of the next term of court, and at the first opportunity afforded the defendant, the defendant by leave of the court withdrew his plea of not guilty and filed a special plea of former jeopardy, alleging the facts and circumstances as they occurred at the former trial. He alleged “that the said jury, without the consent of” the defendant, was discharged. No allegation is made in such plea that the defendant objected to the discharge of the jury, which is quite a different matter. It does not appear that the attention of the court was in any way called to any claim of the defendant that he was entitled to a verdict, or that he relied upon the jeopardy which had already attached as a bar to further prosecution. In other words, it appears that, when the court discharged the jury, either because they could not agree, or for no legal reason, the defendant and his counsel stood mute and made known to the court no objection to the action taken. Under such circumstances, the constitutional guaranty against second jeopardy is waived. There is a fundamental principle permeating the entire law that parties must make known to the court their objections to the action, or proposed action, of the court; otherwise the objection will be deemed to be waived. This must necessarily be so; otherwise the administration of the law, designed as it is to ascertain the truth by legal methods and to apply the law to such facts so ascertained, must descend to a mere play in which the sharp practitioner may match his wits against the court and often defeat the ends of justice.

In regard to the immediate question of the necessity of objection to the discharge of the jury where jeopardy has attached in order to render a plea of former jeopardy available, we have but one case in this jurisdiction where it has been considered. See Territory v. Donahue, 16 N. M. 17, at page 24, 113 P. 601, 603, opinion by Mechem, J., where it is said: “The objection not appearing on the record proper nor by bill of exceptions, as far as the record is concerned, it appears that the jury was discharged without objection and with the implied consent and in the presence of the appellant.”

This statement is undoubtedly sound and in accordance with sound principles of judicial procedure. See, also, Stone v. State, 160 Ala. 94, 49 So. 823, 135 Am. St. Rep. 69, and note; 1 Cooley Constitutional Limitations (8th Ed.) p. 690; 1 Bish. Crim. Law (9th Ed.) § 998; 8 R. C. L. “Crim. Law,” § 143. There is authority to the contrary, but we do not deem the same of controlling importance. We have determined to adhere to the principles announced in the Donahue Case, supra, as sound and in accordance with reason and the better authority. The defendant therefore is held to have waived his right to plead former jeopardy in this case by his silence when the jury was discharged.

Inasmuch as this conclusion is of such tremendous importance to the defendant, he being under sentence of death, we have taken it upon ourselves to say officially to the district attorney and the attorney for defendant that, if a bill of exceptions could be obtained from the district court showing that objection was made to the discharge of the jury, we would issue our writ of certiorari to have the same brought up and made a part of the record here. No such bill of exceptions has been forthcoming.

It appears that the jury came into open court and through their foreman announced that they were unable to agree upon a verdict. He was asked by the court how the jury stood as to numbers, and he replied that they stood seven to five, and he stated that one of the jurors was opposed to capital punishment, which juror he named. While it does not appear in the record, it does in the plea of former jeopardy that the court then examined said juror, and he said that he had not understood the questions asked by him, but he did not deny that he was opposed to capital punishment. Under such circumstances the court was undoubtedly authorized to declare a mistrial and discharge the jury. The court is authorized to accept the statement of the jury as to their inability to agree. 16 C. J. “Crim. Law,” § 408; 1 Bish. Crim. Law (9th Ed.) § 1033. These are matters resting, necessarily, in the discretion of the court, and we can see no abuse of that discretion in this case. See 8 R. C. L. “Crim. Law,” § 148.

The record in this case is that the jury came into court at 1.20 a. m. of the day following the one in which the case was submitted to them and reported that they could not agree upon a verdict and that a verdict was impossible owing to the opposition of one of the jurors to capital punishment. The court thereupon declared a mistrial and discharged the jury. Under such circumstances it is immaterial whether the defendant objected or not. The demurrer to the plea of former jeopardy was properly sustained by the court.

[2] 2. The defendant made a confession in which he told the details of the homicide, which confession was introduced in evidence against him. It appears that the defendant was a drug addict and was in...