State v. Smith

• Decision Date: 10 March 1925
• Docket Number: No. 2945.,2945.
• Citation: 234 P. 467,30 N.M. 364
• Parties: STATEv.SMITH et al.
• Court: New Mexico Supreme Court

30 N.M. 364

234 P. 467

STATE

v.SMITH et al.

No. 2945.

Supreme Court of New Mexico.

March 10, 1925.

Syllabus by the Court.

Alleged errors not discussed in the briefs of appellants will be deemed waived and abandoned.

It was not error to admit evidence of the actions of appellants in assaulting the jailer of the Torrance county jail; the jury being properly instructed as to the proper consideration to be given to such evidence.

Severance of trial of two or more defendants jointly indicted for the same offense is discretionary with the trial court, and its action will not be reviewed by this court, unless such discretion is abused.

Instruction relative to statements made by defendants examined, and held not prejudicial.

When an instruction contains a term alleged to be misleading, it is the duty of the party complaining, to request a special instruction defining the term. Instruction examined, and held not erroneous, and that in any event appellants not in a position to complain in default of proper requests for explanatory instruction and in absence of proper exception.

There was no error in instruction No. 8; the same being clear when considered with attending instructions.

The court properly refused appellants' tendered instruction No. 3 as having been covered by other instructions.

Appeal from District Court, Valencia County; Owen, Judge.

Bernard Young Smith and Mack Clyde McCulley were convicted of second degree murder, and they appeal. Affirmed.

Assignments of error, not argued, are waived.

E. P. Davies, of Santa Fé, for appellants.

Milton J. Helmick, Atty. Gen., and J. W. Armstrong, Asst. Atty. Gen., for the State.

BICKLEY, J.

This case arose in the district court of Valencia county, N. M., by reason of the finding and filing therein of an indictment by the grand jury at the September term, 1923, of the district court thereof, against Bernard Young Smith and Mack Clyde McCulley, wherein the said Smith and McCulley were charged with having unlawfully, feloniously, willfully, deliberately, premeditatedly, of their malice aforethought, killed and murdered one William R. Carman. To this indictment the defendants and each of them pleaded not guilty, and upon this issue the cause proceeded to trial in said court on September 10, 1923, and resulted in a verdict of guilty of second degree murder being returned against each of the defendants, and upon which judgment and sentence of the court was entered by the provisions of which the said Smith was sentenced to a term of not less than 35 years nor more than 45 years in the state penitentiary, and the said McCulley was sentenced to a term of not less than 25 years nor more than 35 years in the state penitentiary. A motion for a new trial was filed and presented to the court by each of the defendants, and was overruled by the court. An appeal was then taken to this court, and the cause is now here for review upon the various exceptions to actions and rulings of the trial court.

On or about the 27th day of April, 1923, in Valencia county, N. M., the dead body of one William R. Carman was found in an empty coal car attached to a freight train of the Santa Fé Railroad when the said freight train took a siding at a station known as Grants at about 9:40 a. m. on that day. The defendant McCulley was subsequently arrested in Phœnix, Ariz., charged with the murder of the said Carman, and admitted that he was on the train just before the time Carman was killed and in the coal car where the body was found, with the defendant Smith; that he was in one end of the car and Smith in the other; that the deceased Carman came over the top of the car and said: “You sons of bitches, get off!” and that he proceeded forthwith to get off the car; that he was not present when the fatal shot which produced the death of said Carman was fired, but that he was subsequently told by Smith that he (Smith) shot Carman for the reason that Carman was about to take his (Smith's) life, and it became necessary for Smith to protect his own life. Smith was arrested on the 30th day of April, 1923, near Bluewater, N. M., and at the time of his arrest there was taken from his person a 38-caliber Colt revolver, a small caliber automatic, and a belt of cartridges. Prior to his arrest, after the killing, Smith had a gun fight with officers who tried to apprehend him. When asked why he shot Carman, Smith replied: “He struck me with a club on the leg.” When the dead body of Carman was found, there was a bullet hole two inches above the right nipple and a gunshot wound on the left hand. Near the body was also found a club. It was shown by medical testimony that the bullet wound in the breast of the deceased was such a wound as could and did produce his death. The evidence further showed that Smith and McCulley had been previously incarcerated in the Torrance county jail on charges of varying degrees of gravity, and had escaped with one Mike Bender after holding up the jailer and tying him in the jail. Upon the trial of the cause, Smith testified; his testimony being practically the same as had been previously stated to the state's witnesses by him. McCulley denied, in his statements to various parties, being present at the time of the shooting. Smith admitted that he fired the shot that killed Carman, but contended that it was done in self-defense to protect himself from Carman's apparent attempt to take Smith's life. He denied that McCulley had anything to do with the killing, and corroborated McCulley's extrajudicial statements in this regard.

The foregoing statement is the most favorable which can be made from the viewpoint of the appellants, and is taken very largely from the statement of the facts made in appellant's brief.

A more detailed statement of the facts, as the jury might have concluded them to be, would show that Smith and McCulley, being both legally incarcerated in the county jail at Estancia, N. M., overpowered the jailer and, taking his guns and ammunition from the jail, made their escape. The circumstances of the jail delivery would indicate a desperate frame of mind in the appellants and that they were not overly sensitive about using a substantial degree of force to accomplish their objects. The appellant McCulley, having been permitted to remain outside of his cell in the jailer's room for a short time, upon being conducted back to his cell, said: “Wait a minute; I have forgotten my tobacco.” While there he took the jailer's gun, and on his return threw the gun in the jailer's face and told him to get in the cell. Mike Bender, another prisoner, came out about this time, and he and appellant McCulley choked the jailer down. Appellant Smith came out of the cell about that time, and took the gun from appellant McCulley. Appellant McCulley was twisting the jailer's arms behind him, so that it was impossible for the jailer to get loose. The persons attacking the jailer told him that it would not be best for him to make any noise. Appellants took the jailer to a cell, tied his feet together, threw him to the floor, ran his hands through the bars of the cell behind him and tied them on the outside. Appellants then demanded the guns in the jail and took the keys from the cell door and left to get the guns from the office of the jail. When appellant McCulley stuck his gun in the jailer's face, he told the jailer to get into the cell and see how he liked it there. He had the pistol cocked and drawn on the jailer at the time he told him to get inside the cell. This gun was a 38 Colt army special, apparently the gun with which Carman was killed. Appellant Smith took this gun away from appellant McCulley, saying that he would feel safer with it. The appellant Smith said that they could not leave the jail without guns, and told the jailer he would give him a very short time to tell him where the guns were. When Smith told the jailer this, he was standing on the outside of the cell to the jailer's back with a gun pressed in the back part of his head. The muzzle of the gun was against the jailer's head. The appellants told him to hurry up and tell where the guns were, and then went to the sheriff's office. The jailer saw nothing more of the appellants, and remained bound in the manner described for about two hours. After the jailer had been released, he made an inspection of the sheriff's office and of the desk drawer where the guns had been kept, and found that this drawer had been taken out and was resting upon the floor, and that all the guns were missing. In this drawer there had been a Colt .380 automatic, a 32-20 Colt on a 45 frame, a 44 Colt double action, and an old 45 Colt. These were in addition to the jailer's gun which they had obtained prior to the occurrence described, and with which appellant McCulley held up the jailer. This latter gun, together with the holster and belt of cartridges for same, was carried away. Five guns in all were taken, as was also about 200 rounds of ammunition. Smith had two guns when arrested, one which he had taken from the deceased after killing him. This gun of the deceased had not been fired. The 38-caliber Colt described as State Exhibit C is the one appellant McCulley took from the jailer's quarters and the one he used on the jailer, and is doubtless the one which inflicted the mortal wound upon Carman. The 32-20 Colt was also identified as one of the guns taken from the Estancia jail by appellants. This 32-20 Colt was apparently the one which was hidden and abandoned by McCulley on a hill near the scene of the homicide after the killing had taken place. The jailer's 38 Colt shot a Winchester 38 special leaden bullet. Both Smith and McCulley held revolvers in the proximity of the jailer's face and head during the jail delivery.

The deceased, William R. Carman, was a brakeman in the employ of the Santa Fé Railway Company, and was in the discharge of his duty as such brakeman on the freight train which left Belen for Gallup at...