State v. Upton, 5912

• Decision Date: 23 September 1955
• Docket Number: No. 5912,5912
• Citation: 60 N.M. 205,1955 NMSC 87,290 P.2d 440
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. James Larry UPTON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 440

290 P.2d 440

60 N.M. 205

STATE of New Mexico, Plaintiff-Appellee, v. James Larry UPTON, Defendant-Appellant.

No. 5912.

Supreme Court of New Mexico.

Sept. 23, 1955.

Rehearing Denied Nov. 21, 1955.

Wilson P. Hurley, Morgan S. White, Albuquerque, for appellant.

Richard H. Robinson, Atty. Gen., Fred M. Standley and W. R. Kegel, Ass't Attys.Gen., for appellee.

KIKER, Justice.

This is an appeal from a conviction of murder in the first degree for which a sentence of death by electrocution has been imposed. Appellant bases his appeal upon three grounds which will be set out and determined after the facts are briefly stated.

On September 10, 1954, James Larry Upton, the appellant, was hitchhiking from Nowata, Oklahoma, to Los Angeles, California. At about eight-thirty that morning he was picked up on the outskirts of Amarillo, Texas by an Air Force Corporal, Donald T. Dilley, who was driving to Salt Lake City, Utah, by way of Albuquerque, New Mexico. Upton and Cpl. Dilley continued on Highway 66 toward Albuquerque through the course of the morning, stopping once to change a flat tire, and again, so that Cpl. Dilley might purchase gasoline. At about one-thirty in the afternoon, when they were approximately four and one-half miles east of Albuquerque on Highway 66, Upton drew a pistol from a package that he had on the seat beside him and ordered Cpl. Dilley to stop the car. Instead of stopping, Cpl. Dilley speeded up. Upon a further warning from Upton, Cpl. Dilley grabbed the keys from the ignition switch and threw them from the car's window. Then he stopped the car across the highway pointing south with the rear wheels on the highway divider and the front of the car in the east bound traffic lane. Upton shot Cpl. Dilley four times with a .38 caliber revolver. Upton got out of the car and Cpl. Dilley, still alive, slumped behind the wheel. The car began to roll south, off the highway, carrying Cpl. Dilley with it, and came to rest in an arroyo some forty feet from the highway. Cpl. Dilley was thrown out and lay on the left side of the automobile. Upton remained on the highway and waved various vehicles on, then he fled up a canyon north of the highway where he was arrested about two hours later.

Appellant's first contention is that the court below erred in refusing his motion for a mistrial, which motion was based on an alleged statement by a witness for the state to the effect that the appellant had been arrested for other crimes prior to the crime for which he was being tried. This argument constitutes an attack upon the accuracy of the record.

Appellant made no direct attack upon the record as, for example, by recalling the witness and questioning him as to what he had said; but simply sets forth in his brief his recollection of the witness's answer, as follows:

'A. In explaining different situations he laughed or made light of them--he--not necessarily concerning this incident, but other things. I asked him about his life; the other situations in which he had been arrested * * * and * * *' (Emphasis by the court.)

The record, however, shows the witness making the following statement:

'A. In explaining different situations he laughed or made light of them--he--not necessarily concerning this incident but other things. I asked him about his life; the situation in which he had been arrested * * * and * * *' (Emphasis by the court.)

The record furnishes no foundation for appellant's motion; to hold with him we would have to repudiate the record and accept appellant's recollection of the witness's statement. Language used by us in State v. Beal, 1944, 48 N.M. 84, 88, 146 P.2d 175, 178, is pertinent here:

'The veracity of neither court nor counsel is * * * involved. It is purely a matter of correctly recalling what transpired, yet so grave a case as this may not be decided upon the memory of those present at the trial. We are bound to consider the case, as presented here, upon the record made in the trial of the case.'

We have said many times in varying situations that we are limited to a consideration of the certified record. See Waldo v. Beckwith, 1854, 1 N.M. 97, 102; Pino v. Hatch, 1855, 1 N.M. 125, 131; Sanchez v. Luna, 1857, 1 N.M. 288, 245, 246; State v. Smith, 1918, 24 N.M. 405, 407-408, 174 P. 740; State v. Edwards, 1950, 54 N.M. 189, 191-192, 217 P.2d 854. It follows that we must presume that record to be true and accurate. Adoption of a contrary rule would disrupt the orderly administration of justice without enuring to the slightest substantive benefit of anyone. Since the record is conclusive on us and there is no basis in the record for appellant's motion for a mistrial we cannot say that the trial court erred in denying that motion.

Appellant's second contention is that the trial court erred in the admission of two enlarged photographs of the deceased. One of the photographs is a view of the back of deceased's naked body showing the wounds after they had been cleaned. The other is a view of the front of decedent's body from the hips up showing the wounds before they were cleaned. These photographs were admitted shortly after the admission of a photograph of the deceased, taken while he was alive, dressed in the uniform of the Air Force. Appellant urges that these photographs are inherently, and by virtue of the sequence of their admission, gruesome and inflammatory and rendered the jury emotionally incapable of hearing the case impartially; he urges that his judicial admission of the nature and location of the wounds and his offer to stipulate that deceased was shot in the back dissipated the grounds for admission of the photographs; he urges that the photographs are of slight probative value and are cumulative.

The controlling principle may be stated as follows: Photographs which are calculated to arouse the prejudices and passions of the jury and which are not reasonably relevant to the issues of the case ought to be excluded.

We have examined the photographs involved in the instant case; we do not find them gruesome or inflammatory nor do we think the sequence of their introduction lent to them qualities which they do not inherently possess.

A judicial admission has been said to do away with the necessity of proof by the benefiting party. 9 Wigmore on Evidence, Sec. 2591 (3d Ed.1940), see also the same work Sections 1058 and 2588. Appellant here made a judicial admission of the nature and location of the wounds and offered to stipulate that the deceased was shot in the back. Appellant did not, by this admission, relieve the state of its entire burden of proof, for appellant still stood on his plea of 'Not Guilty and Not Guilty By Reason of Insanity'. We think the photographs were admissible for the purpose of clarifying and illustrating the testimony of witnesses, for proving the corpus delicti, and for the purpose of corroborating the identity of the deceased. We have held that photographs which may be characterized as cumulative evidence are properly admitted if they serve to corroborate other evidence. State v. Jones, 1948, 52 N.M. 118, 123, 192 P.2d 559; State v. Horton, 1953, 57 N.M. 257, 262-263, 258 P.2d 371; State v. Johnson, 1953, 57 N.M. 716, 721, 263 P.2d 282. In the latter case we also held, 57 N.M. at page 721, 263 P.2d at page 285, that,

'The admission of photographs rests largely in the discretion of the trial court and ordinarily his decision will not be disturbed.'

For the foregoing reasons we cannot say here that the lower court abused its discretion in the admission of these photographs.

Appellant's third contention is:

'That the defendant was wrongfully brought to trial when his mental condition at the time of trial was of such a nature, based on the uncontradicted testimony of a qualified psychiatrist, as to render him incapable through mental defect of conducting his defense.'

Our statute, Section 41-13-3, NMSA 1953, as construed in Territory v. Kennedy, 1910, 15 N.M. 556, 110 P. 854, and in State v. Folk, 1952, 56 N.M. 583, 247 P.2d 165, shields and protects persons who are insane. Proof of defendant's 'insanity' or 'mental disorder' is necessary in order to bring the defendant within the shelter of the statute. Once this condition: insanity, has been established, our statute offers protection to defendants in two situations.

One: Where the defendant is insane at the time of the commission of the crime. The proper inquiry here is the M'Naghten rule as extended by State v. White, 1952, 58 N.M. 324, 330, 270 P.2d 727, 731:

"'The jury must be satisfied that, at the time of committing the act, the accused, as a result of disease of the mind * * * (a) did not know the nature and quality of the act or (b) did not know that it was wrong or (c) was incapable of preventing himself from committing it."'

This inquiry goes to the responsibility of the accused for his alleged criminal act and may affect the decision as to accused's guilt or innocence.

Two: Where the defendant is insane at the time of arraignment, trial, judgment or execution. The proper inquiry here is:

'Has the defendant capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to make a rational defense?' Weihofen, Mental Disorder as a Criminal Defense, at page 431; see also State v. Folk, cited supra, 56 N.M. at page 592, 247 P.2d 165.

This inquiry goes solely to the propriety of proceeding against accused during the existence of such condition.

It is on Number Two, insanity at the time of trial, that appellant rests his contention. We stated the universal rule applicable here in In re Smith, 1918, 25 N.M. 48, 56, 176 P. 819, 822, 3 A.L.R. 83:

'All the courts hold * * * that the common law forbids the trial * * * of an insane person for a crime while he continues in that state. * * *'

The reason for this rule is set out in Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 34 L.R.A.,N.S., 1115,...