State v. Stewart.
| Citation | 30 N.M. 227,231 P. 692 |
| Decision Date | 17 November 1924 |
| Docket Number | No. 2764.,2764. |
| Parties | STATEv.STEWART. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Ordinarily a general objection to the admission of evidence on the ground that it is immaterial, without more, raises no question for review on appeal, where the immateriality is not clearly apparent.
A “dying declaration” is admissible in evidence only when it is shown that the declarant was conscious of the approach of death at the time the same was made; and, where the only evidence of such consciousness on the part of the declarant is the character of the wound and the state of his illness, such a declaration cannot be admitted, where all the surrounding facts and circumstances indicate that no such consciousness existed.
Ambiguities in a written statement offered as a dying declaration, caused by interlineations made by the writer who prepared it, should be explained, if testimony for that purpose can be procured.
The admission in evidence of a dying declaration does not deprive a defendant of any constitutional right.
The refusal of the court to permit a witness to answer a question propounded in the trial of the case furnishes no ground for review on appeal, where the question fails to disclose the nature of the evidence sought to be elicited, and the court is not informed what the testimony of the witness is expected to be.
It is error for the court to exclude preliminary proof, offered for the purpose of showing a similarity of conditions attending an alleged occurrence, and an experiment made to test the truth of testimony relative thereto.
Since there was no evidence of flight or concealment, there is no apparent error in the exclusion of testimony as to the defendant's whereabouts prior to his arrest.
The admission of testimony, which is subsequently withdrawn, with instructions to the jury not to consider it, furnishes no ground for appeal, in the absence of a motion for a mistrial, where no injury to the rights of the defendant is apparent.
It is not error for the court to refuse to permit an unnecessary repetition of testimony.
Appeal from District Court, Dona Ana County; Ed Mechem, Judge.
Wesley Stewart was convicted of murder in the second degree, and he appeals. Reversed and remanded for new trial.
It is not error for the court to refuse to permit an unnecessary repetition of testimony.
Holt & Sutherland, of Las Cruces, for appellant.
Milton J. Helmick, Atty. Gen., John W. Armstrong, Asst. Atty. Gen., and J. Benson Newell, Dist. Atty., of Alamogordo, for the State.
Wesley Stewart was indicted for the murder of G. I. Maloy, which is alleged to have occurred on August 21, 1921, and at the trial was convicted of murder in the second degree, and from this conviction he appeals.
The appellant, Stewart, who will hereafter be referred to as the defendant, had an interest in lands in Dona Ana county, under the Picacho community ditch, the waters of which were distributed under the old community ditch system by a majordomo, who, at the date of the killing, and for some time prior thereto, was the deceased, G. I. Maloy. There was a difference between the owners of the water rights under this ditch as to the advisability of turning this ditch over to the United States Reclamation Service, and the defendant was the leading spirit of those favoring such change, and Maloy, the majordomo, and McElyea and Denny, the ditch commissioners, were leaders among those who opposed the change. Considerable ill feeling existed between the two factions, and various threats, the one toward the other, were in evidence. The immediate controversy which resulted in the homicide arose from the alleged nonpayment by the defendant of a small disputed ditch assessment, of about $3. Maloy had threatened to cut off the defendant's water, unless this assessment was paid, and on the morning of August 12th the water was cut off, at his order. The defendant armed himself with a shotgun loaded with buckshot or BB shot, went to his headgate, opened it, and turned the water into his irrigating ditch, and seated himself nearby with his gun. Shortly thereafter, Maloy, the majordomo, came across the bridge near the point where the defendant's headgate was situated, and, after some words between them, the defendant shot Maloy at a distance of some 50 or 60 feet, one of the shots entering Maloy's abdomen, and several entering the fleshy part of his thigh. Maloy fell from the mule he was riding, and walked a short distance, falling into some weeds nearby. The only witnesses to the shooting were Maloy, J. O. Luther, and the defendant. The witness Luther, at the time Maloy rode up, was engaged in cleaning out a lateral to the ditch with a shovel, with his back toward the scene of the difficulty, at a distance of approximately 800 feet from the place where Maloy was sitting on the mule, and testified that his attention was first attracted by a remark of Maloy, who said to the defendant, “Come out of hiding, Stewart; don't be a damn coward; come and let's talk this over;” to which some one, whose voice he could not identify, said in a lower tone, “Throw up your hands;” that he heard further talking, but could not distinguish the words, and then heard the report of the gun, but did not see who fired it; that the deceased, at the time of the shot, had his hands on the pommel of the saddle from which he fell. The shooting occurred between 7:30 and 8:30 o'clock in the morning, and Maloy died during the afternoon of the same day. An alleged dying declaration was admitted in evidence, which was in substantial accord with the statement of Luther as to what was said. The testimony of the state further sought to show that upon the approach of Maloy the defendant repaired to a cornfield nearby and concealed himself, from which point he fired the shot.
The defendant denied that he was in the cornfield, but asserted that he was seated on the ditch bank, and his account of what took place was substantially as follows: After he opened his headgate, he seated himself nearby on the ditch bank, with his shotgun on his lap, to watch his headgate and protect himself against a previously threatened violent attack by Maloy, and, while thus seated on the main road bounding his property, the deceased rode up on a mule to the north boundary fence, stopped near the gate, about 12 or 15 feet west of the main ditch, reached back to his hip, and said to the appellant, “You G ----- d ----- s ----- of a b -----, you move and I will kill you;” that the defendant instantly fired to protect himself from Maloy's threatened assault; that the deceased dropped off the mule on his knees and hands, threw something toward the ditch, broke, and ran west about 30 feet, and fell into the weeds near the side of the road. There was much evidence of bad feeling between the defendant, on the one side, and Maloy, McElyea, and Denny, on the other, and of previous threats, counter threats, and verbal assaults.
A number of errors are assigned, which will be considered in the general order set out in the appellant's brief.
[1] 1. Upon the trial of the case defendant's counsel asked the witness Luther this question:
“But there was some feeling between Maloy and Denny and McElyea, on one side, and Mr. Stewart, on the other-you knew that didn't you?”
To which the witness replied:
Upon redirect examination, counsel for the state propounded this question to the witness:
To which the witness answered:
“I had heard rumors to that effect; nothing definite.”
This question and the answer were objected to by the defendant as immaterial. No reason for its immateriality was suggested in the objection, nor in the brief in this court, and we are unable to determine the grounds upon which this objection is urged. No authority is cited; it being merely alleged that it was highly prejudicial to the rights of the appellant, without any suggestion as to how the defendant was prejudiced. In the brief, counsel state that it is unnecessary to cite authorities in support of the well-known and well-established rules of evidence upon which the objection is founded. Ordinarily, an objection, in general terms, to evidence on the ground that it is incompetent, irrelevant, and immaterial, without calling the attention of the court to the specific reason why such evidence is incompetent, irrelevant, and immaterial, is too general to base an exception to a ruling of the court overruling such objection. 3 C. J. 818, 819, § 733, and cases cited in note 26; McKenzie v. King, 14 N. M. 375, 93 P. 703; Noll v. Nolan, 135 Ga. 712, 70 S. E. 577.
[2] 2. Another exception is to the admission of the following writing, signed by the deceased, and attested by two witnesses, purporting to be a dying declaration of the deceased, relative to the shooting:
“Friday
Picacho, August 12, 1921.
As I was going to my work, I saw Mr.
Stewart walk off the bridge about Three yds. distance from where I was and disappear in the corn field near where I had a job to do. I rode up to the fence leanded over on my mule and called to him in a respectable manner to come out and talk the matter over with me and settle the matter like men. He answered saying throw up your hands or I will shoot you. I told him that I would not throw up my hands to any man (as I had done nothing), and he then shot me without hesitation. I could not see him when shot me or any time afterwards. Mr. Stewart and I had always been on friendly terms prior to the time I taken the job as ditch boss
[Signed] George I. Maloy.
T. C. Sexton. Oscar...
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