State v. Starr

• Citation: 24 N.M. 180,173 P. 674
• Decision Date: 31 December 1917
• Docket Number: No. 2004.,2004.
• Parties: STATEv.STARR ET AL.
• Court: Supreme Court of New Mexico

24 N.M. 180

173 P. 674

STATE

v.STARR ET AL.

No. 2004.

Supreme Court of New Mexico.

Dec. 31, 1917.On Rehearing, June 8, 1918.

Syllabus by the Court.

It is a general rule of criminal evidence that on the trial of a person accused of crime proof of a distinct, independent offense is inadmissible.

Generally speaking, evidence of other crimes is competent to prove the specific crime charged when it tends to establish: (1) Motive; (2) intent; (3) the absence of mistake or accident; (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of one tends to establish the other; (5) the identity of the person charged with the commission of the crime on trial.

All objections to the admission or exclusion of evidence, its competency, relevancy or sufficiency, and as to the competency of witnesses and their examination, must be made in the trial court. They cannot be raised for the first time on appeal.

Whether a sheriff is justified in pursuing and arresting, without warrant, one who has been confined in jail and has broken therefrom, does not depend upon whether the imprisonment was legal, but on whether the officer has reasonable cause to suspect the commission of a felony.

Where several persons are jointly indicted, they cannot claim separate trial as a matter of right; this is a matter of sound discretion, to be exercised by the court with all due regard and tenderness to prisoners, according to the known humanity of our criminal jurisprudence; and an order refusing such trial will not be reviewed.

The granting or denying of a motion for continuance is within the discretion of the trial court, and unless such discretion has been abused to the injury of the defendant, the denial of such motion will not constitute error.

There was no error in the court having allowed the jury to separate, before the case was submitted to them, in the absence of a showing that accused was prejudiced thereby.

The limitation of cross–examination is a matter which rests in the sound discretion of the court, and unless there is manifest abuse of such discretion, an appellate court will not reverse the ruling of the trial court.

No error can be predicated upon the refusal of the trial court to give an instruction when the instructions given by the court on its own motion fully and completely covered everything contained in the refused instruction.

Where upon trial of murder the court in an instruction used the word “may,” there was no reversible error, as the same may be interchangeably used with “shall” or “will.”

Held, that a fugitive from justice is not a “person traveling” within section 1708, Code 1915, permitting travelers to carry arms.

Additional Syllabus by Editorial Staff.

In a prosecution for the murder of a sheriff, evidence that the defendants had escaped from jail and had taken from the jailers a pistol, watch, and certain money, and had held up the driver of the automobile which they had procured, was admissible as showing a motive and defendants' intent to take life if necessary to prevent recapture.

Such transactions, comprising a common scheme or plan and embracing the commission of two or more offenses, were so related to each other that proof of one tended to establish the other, and evidence thereof was admissible in exception to the general rule.

In a trial for murder, the denial of a continuance on the ground of the physical condition of a defendant supported by a physician's certificate that it would be detrimental to defendant's health to go through a trial in view of his temperature, etc., was not an abuse of the trial court's discretion, where such defendant testified as a witness seemingly in full possession of all his faculties, and there was nothing to show that his attorneys were prejudiced in conducting his defense by reason of his physical condition.

To preserve for review error on instructions given or requested instructions refused, the complaining party must have tendered proper instructions and have excepted to the refusal to give them, or, by excepting to instructions, have called the court's attention specifically to the alleged error.

A question not presented to the court in the original hearing on appeal will not be considered on rehearing.

In a trial for the killing of a deputy sheriff, a requested instruction substantially given by the court was erroneous in that it made the fact that it was unknown to any one of the defendants that the deceased was an officer, and that the conduct of deceased toward either of the defendants was threatening, a material element to be considered on the law of self–defense giving to one of the defendants who might have known that deceased was an officer and was attempting to arrest them as fugitives the right to invoke the law of self–defense by reason of the fact that some of the defendants did not know that he was an officer and was attempting to arrest them.

A defendant cannot complain on appeal of the refusal to give an improper instruction.

An appellant cannot complain of an instruction which, although erroneous, is favorable to him.

Appeal from District Court, Doña Ana County; Medler, Judge.

Jesse O. Starr and Charles Schmidt were convicted of murder in the second degree, and from the judgment sentencing them in accordance with the verdict, they appeal. Affirmed.

The appellants, Jesse O. Starr and Charles Schmidt, together with one Francisco Acosta, Cranston, and one Smith, or Dashley, were confined in the Luna county jail at Deming, and while so confined, on the morning of February 20, 1916, after overpowering the jailer and locking him up in a cell, they made their escape, taking with them certain firearms and ammunition which they found in the possession of the jailer or within the jail. They procured an automobile, in which they drove from Deming to a point within a mile and a half of Rincon, where they left the main road and proceeded up an arroyo about three–quarters of a mile, where they stopped to eat a lunch which they had secured on the road. Shortly after stopping at this point they were overtaken by Sheriff Stevens of Luna county, who was accompanied by a posse, who upon reaching the vicinity divided into two parties, one Kelly, a member of the posse, with others, going up the side of a little hill, while Sheriff Stevens, Sevier, and one Tabor followed the tracks of the automobile in which the prisoners had fled around a short turn in the arroyo. Kelly, on arriving at the top of the hill, discovered the fleeing prisoners and called back to the rest of the posse, “Here they are.” Kelly testified that when he discovered the prisoners they were armed and apparently ready to fight. He did not remember whether he called upon them to surrender before firing the first shot in the encounter. Very shortly after this shot was fired Stevens and the persons accompanying him came in view of the defendants and Sevier demanded that they throw up their hands. Numerous shots were almost immediately exchanged between the several parties to the encounter, as a result of which Sheriff Stevens was killed, one Cranston, a member of the fleeing party was also killed, and Sevier was seriously wounded, as was also the appellant Starr, who was shot through the knee. All of the escaped prisoners with the exception of Dashley were shortly apprehended, and the appellants, with Acosta, were indicted at the March term, 1916, of the district court of Doña Ana county, in which county the homicide occurred.

The first count of the indictment charged the defendants jointly with the murder of Sheriff Dwight B. Stevens. The second count charged that the killing of Sheriff Stevens was by defendant Starr, and that the other defendants were aiding and abetting in the commission of the said crime. The third count charged that the defendants, while confined in the county jail of Luna county, conspired together to escape from jail, which escape is a felony under the laws of New Mexico, that while being pursued by the said Stevens, sheriff of Luna county, and his posse, the defendant Starr deliberately and premeditatedly killed the said Stevens with a rifle, and that the other defendants were aiding and abetting in the said murder of Stevens. The defendants were tried at the March term, 1916, of the said district court, and the said Jesse O. Starr was found guilty of murder in the first degree, and the said Charles Schmidt guilty of murder in the second degree, and Francisco Acosta not guilty. From the judgment of the district court sentencing the first two named defendants in accordance with the verdict of the jury, this appeal was taken.

Parker, J., dissenting.

In view of Code 1915, § 4506, all objections to the admission or exclusion of evidence, its competency, relevancy, or sufficiency, and as to the competency of witnesses and their examination, must be made in the trial court; they cannot be raised for the first time on appeal.

Prosper Sherry and Frank Herron, both of Las Cruces, for appellants.

H. L. Patton, Atty. Gen., for the State.

HANNA, C. J. (after stating the facts as above).

The first point urged by counsel for appellants in their brief is that the court should not have admitted evidence concerning the transactions in and around the Deming jail pertaining to the escape of the prisoners therefrom. It is urged that the transactions referred to were too remote; that the escape from the jail was completed the moment the prisoners were beyond the jail confines and out of the custody of the officers. This point is argued in connection with eight exceptions to the admission of evidence during the progress of the trial. It appears from the record that one of the prisoners took from the jailers his pistol, watch and $5 in money. The admission of the watch and a portion of the money is complained of in this connection. One Snodgrass was called on the telephone immediately after the escape and induced...