State v. Stewart.

• Decision Date: 09 February 1929
• Docket Number: No. 3123.,3123.
• Citation: 34 N.M. 65,277 P. 22
• Parties: STATEv.STEWART.
• Court: New Mexico Supreme Court

34 N.M. 65

277 P. 22

STATE

v.STEWART.

No. 3123.

Supreme Court of New Mexico.

Feb. 9, 1929.Rehearing Denied May 7, 1929.

Syllabus by the Court.

The record examined, and held no error committed in the admission of dying declaration; the requirements for such admission as defined in former appeal having been fairly met.

It is competent to refresh the memory of a witness by reminding him of the testimony given by him at a former trial.

The cross-examination must be confined to the subject-matter of the original examination. The trial judge is clothed with a large discretion in the application of the rule.

Error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it.

Admissibility of statements as a part of the res gestæ depends more on circumstances than on time.

The modern rule is to admit generic threats directed to a class, and leave their weight for the jury.

A threat being directed to a class of persons to which deceased belonged, evidence was not objectionable for indefiniteness.

A motion to strike evidence, admitted without objection, is addressed to discretion.

The requested instructions of defendant examined, and held to be properly refused; they being sufficiently covered by the court's general instructions.

Error in overruling motion for directed verdict at close of state's case is waived by introduction of defense evidence.

It was not error for the court to submit second decree murder instructions. The point being controlled by State v. Smith, 26 N. M. 483, 194 P. 869.

On Motion for Rehearing.

Additional Syllabus by Editorial Staff.

Where, in murder prosecution, motion for new trial for newly discovered evidence was made more than three years after trial but motion was not verified and failed to show diligence and that the new evidence would likely change the result, the motion was properly overruled.

Appeal from District Court, Doña Ana County; Raymund R. Ryan, Judge.

Wesley Stewart was convicted of murder in the second degree, and he appeals. Affirmed.

See, also, 32 N. M. 242, 255 P. 393.

The matter of permitting cross-examination of accused beyond the scope of his direct examination rests in the trial court's discretion.

Holt & Sutherland, of Las Cruces, for appellant.

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

BICKLEY, C. J.

Wesley Stewart was indicted for the murder of G. I. Maloy, which is alleged to have occurred on August 21, 1921.

At the first trial of the cause, defendant was convicted of murder in the second degree and appealed. The judgment in the trial court was reversed and the cause remanded for a new trial. On the second trial, the defendant was again convicted of murder in the second degree, and it is from this conviction that he appeals. The disposition of the appeal from the first conviction is reported in 30 N. M. 227, 231 P. 692. A general statement of the facts is there set forth. Many errors are assigned. We will consider first those which grow out of matters dealt with in the former appeal.

[1] The first, and one of the more important, involves the admissibility in evidence of the purported dying declaration of the deceased. In our opinion, in the former appeal, the requisites for admissibility of such a declaration were set forth, and it was held that the record did not show facts and circumstances which would support a finding by the court that the deceased Maloy believed that his wound was fatal when the statement was made, nor could the belief be inferred from the nature of the wound itself and the circumstances existing at the time the statement was made, and held that the trial court erred in admitting the declaration upon the evidence introduced.

Evidence upon this specific point was introduced at the second trial, and it was objected in substance that the evidence did not sufficiently show a belief on the part of the declarant that death was imminent.

[4] The court overruled the objection, requiring, however, that the two interlineations commented on in our opinion on the former appeal be explained. One of these interlineations was withdrawn by the district attorney, and the evidence concerning it stricken, and the jury charged not to consider the testimony of the witness regarding the withdrawn interlineation. Counsel for appellant claims that notwithstanding this situation defendant had suffered prejudicial error by the previous adverse ruling, because the witness had been permitted, over objection, to testify that Maloy had made the statement in question. “The general rule is that where evidence erroneously admitted during the progress of the trial is withdrawn or stricken out by the court, the error is cured.” 17 C. J. 325, § 3666. Also: “The rule is recognized in a large number of decisions that error in the admission of incompetent evidence may ordinarily be cured by instructions to disregard the evidence improperly admitted.” 17 C. J. p. 326, § 3667. The evidence alleged to be objectionable having been timely withdrawn, stricken, and by the court charged out of the case, and not being of a character to come within the exceptions to the rule, no prejudicial error appears on account of the proceedings relative to the interlineation. The dying declaration was received in evidence and read to the jury as follows:

“Picacho, Friday, August 12, 1921.

As I was going to my work I saw Mr. Stewart walk off the bridge about three hundred yards 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, leaned forward 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 wouldn't throw up my hands to no man and he then shot me without hesitation. I couldn't see him when he shot me or any time afterwards.

[Signed] Ditch Boss George I. Maloy.

Witnesses: T. C. Sexton and Oscar McElyea.”

Not only was the court satisfied in the exercise of the proper discretion that the essential elements to render the declaration admissible existed, but the jury were instructed as to said dying declaration as follows: “There has been introduced in evidence what purports to be the dying declaration of the deceased, G. I. Maloy. Dying declarations are admissible in evidence when they are shown to have been made under a realization of certain approaching death. When a dying declaration is admitted in evidence by the court, it is for the jury to consider and weigh such statement by the same rules as any other evidence in the case, and to give it such weight and credence as they deem it entitled to; but, you are further charged that you may not consider the dying declaration offered in this case for any purpose whatsoever unless you believe from the evidence beyond a reasonable doubt that at the time it was made by the said G. I. Maloy, prior to his death, it was so made by him under a realization of certain approaching death.”

So we must assume that the jury either disregarded the declaration or deemed that a sufficient foundation had been established to warrant its consideration. After a careful consideration of the record and argument of counsel, including a review of the objections upon constitutional grounds, we conclude that there was no error in the admission of the dying declaration.

[2] A witness for the state was permitted to have his recollection refreshed, as to the time of his discovery of a certain physical condition, by having read to him portions of his testimony at the former trial. In Billingslea v. State, 85 Ala. 323, 5 So. 137, in similar situation the court decided: “Refreshing recollection of witness by memorandum.-A witness, being questioned as to the time of the commission of the offense charged against the defendant, may refresh his memory by reading a memorandum of his testimony on a former examination, which was written down and subscribed by him at the time; and may testify as to the time as thereby shown, although he has no independent recollection of it.”

That such method of refreshing witness' recollection is frequently resorted to, see First and Second Decennial Digest: Witnesses, 255 (9). This point is ruled against appellant.

[3] Appellant's point No. 2 is based upon the alleged erroneous exclusion of testimony sought to be elicted from the witness Roger Mayfield upon cross-examination. The witness on direct had detailed a conversation with deceased about shutting off the water, which was the subject of a bitter controversy between appellant and deceased. The cross-examination, rejected, related to another and different conversation concerning which witness had not been interrogated and to which the witness had not referred. There was no error in the rejection. The witness could be cross-examined on all matters which were pertinent to the conversation to which he had just testified, but here he was interrogated as to a separate and distinct transaction which was not covered on his examination in chief. In the case of Johnson v. Wiley, 74 Ind. 233, the court said: “The appellee had not asked the witness any question concerning the conversation called for by appellant's cross-examination, and the witness had not stated it. The appellant had no right, therefore, to elicit that conversation upon cross-examination, for it was not a matter brought out upon the examination-in-chief. It is well settled that a cross-examination must be confined to the subject-matter of the original examination.”

If the appellant desired to show the attitude of the deceased toward appellant by another and different conversation, it was a part of his case and not proper subject of cross-examination. See, also, State v. Archuleta, 29 N. M. 25, 217 P. 619. The correctness of the court's ruling depends on whether the conversation refused was so connected with the matters...