State v. Vigil.
| Decision Date | 06 February 1928 |
| Docket Number | No. 3206.,3206. |
| Citation | 266 P. 920,33 N.M. 365 |
| Parties | STATEv.VIGIL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The correctness of the overruling of a challenge to a juror is not to be judged by another ruling in the same case.
The state, prosecuting by information, need not allege or prove that accused has had or waived preliminary examination.
Objection that accused has not had or waived preliminary examination must be raised before plea.
Verdict of guilty supported by substantial evidence will not be disturbed.
Before the jury finally retired to consider its verdict, erroneous instructions withdrawing the charges of murder in the first and second degrees and submitting manslaughter were recalled and new instructions, excluding manslaughter and submitting first and second degree murder, given. This was not a second jeopardy nor otherwise erroneous.
Appeal from District Court, Mora County; Armijo, Judge.
Dominico Vigil was convicted of second degree murder, and he appeals. Affirmed.
Recalling, before jury finally retired, erroneous instructions withdrawing charges of first and second degree murder and submitting manslaughter and giving new instructions, excluding manslaughter and submitting first and second degree murder, held not to constitute second jeopardy.
D. J. Leahy, of East Las Vegas, for appellant.
Robert C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.
Dominico Vigil appeals from a conviction of murder in the second degree for the killing of Daniel Duran.
[1] Objection is urged to the overruling of appellant's challenges to three jurors, because entertaining opinions as to guilt or innocence. It is not directly contended that such opinions are necessarily disclosed by their voir dire examinations. But it is pointed out that there is no substantial difference between the answers of these jurors and those made by another who was excused on the court's own motion, over appellant's objection. The point made is that the court's rulings were so inconsistent as to show prejudice against appellant. As it seems to us, the law is the standard by which the rulings must be judged. Some other ruling in the case is not a correct criterion. Without having the advantage of observing the demeanor of the jurors under examination, we are not in a position to judge as to their intelligence or sincerity, and cannot say that the rulings were in fact inconsistent.
[2] The next attack is directed to the information which recites “that Dominico Vigil now in this form here held to answer for the crime charged herein, after having waived the preliminary examination therefor before an examining magistrate,” etc. It is contended that the recital is insufficient to show that appellant had or waived preliminary examination before a committing magistrate, as required by article 2, § 14, of the Constitution, as amended in 1923 (see Laws 1923, p. 351). The point was raised, first, by objection to any testimony on the part of the state, and, later, by motion to dismiss at the close of the state's case. The point is without merit, since we held in State v. Rogers, 31 N. M. 485, 247 P. 828, that the state need not allege or prove that the accused has had a preliminary hearing, but that, if he has not been allowed or waived such hearing, it is a matter of defense to be raised by plea in abatement or other appropriate remedy.
[3] Appellant, in the course of his defense, offered the testimony of the clerk of the court which he contends shows lack of a sufficient record of a preliminary examination or a waiver thereof. Thereupon he again moved to dismiss, and now complains of the overruling of the motion. We do not think the point well taken. The Constitution provides that no person shall be held to answer for a capital, felonious, or infamous crime on information without having had or waived a preliminary examination. The examination is entirely foreign to the crime and to the question of guilt or innocence. Hence, as we have already decided, it need not be alleged or proved. The constitutional right is a guaranty against being held to answer. If, when called upon to answer, that is to plead, it is objected that there has been no preliminary examination or waiver thereof, the fact must be determined to the contrary before the accused can be required to plead. That is all the Constitution requires. It being a right which may be waived, it may be waived at one time as well as at another. When the accused is arraigned, if he makes no objection, but pleads not guilty, he must be held to have waived examination, if he has not already received one. To permit such objection to be interposed after jeopardy had attached would open a door to great abuse in the administration of justice. The Constitution does not require it, and it is against sound policy and the liberal spirit of the constitutional amendment and of the procedural statute (Laws 1925, c. 145.)
[4] The next point is as to the sufficiency of the evidence to support the verdict. It is thus stated in the brief:
“The evidence in this case establishing self-defense preponderated so strongly in favor of appellant that the guilt of appellant was not shown by any substantial evidence upon which to base a verdict of guilty, and the court erred in overruling appellant's motion to dismiss, made when all of the evidence had been presented.”
Appellant admitted the homicide, and claimed self-defense. There were no eyewitnesses of the killing. It was, in our judgment, for the jury to decide the issue of self-defense from all the facts and circumstances shown. Appellant might well have argued to the jury that there was a preponderance of evidence in favor of his plea, or that the state had failed to satisfy the burden of proof beyond a reasonable doubt. But such is not the question here. There is substantial evidence to support the verdict. Beyond that we do not inquire. State v. Pennington, 28 N. M. 543, 215 P. 815, is cited. That case is different, both in law and in fact. It was a stronger case of self-defense than this. Yet this court held that, but for the Attorney General's concession that the preponderance of evidence supported the plea, “we would feel bound to affirm this judgment upon...
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State v. McClurg, 5622
... ... constitutional provisions and statutes to those governing ... here (Const., art. 1, sec. 8; C. S., sec. 8816. See 31 C. J ... 643; State v. Rogers , 31 N.M. 485, 247 P. 828; ... People v. Shubrick , 57 Cal. 565; State v ... Vigil , 33 N.M. 365, 266 P. 920; State v. Lewis , ... 31 Wash. 515, 72 P. 121; Williams v. State , 6 Okla ... Crim. 373, 118 P. 1006; Quen Guey v. State , 20 Ariz ... 363, 181 P. 175; State v. Finley , 6 Kan. 366) ... The ... trial was held in the annex of the Methodist Episcopal ... ...
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Pearce v. Cox, 8142
...v. Rogers, 31 N.M. 405, 247 P. 828, 834. 5 State v. Bailey, supra; State v. Gallegos, 46 N.M. 387, 129 P.2d 634, 635; State v. Vigil, 33 N.M. 365, 266 P. 920, 921. 6 Silva v. Cox, 10 Cir., 351 F.2d 61, 64; Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270; Knoell v......
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Pearce v. Cox, No. 8142
...v. Rogers, 31 N.M. 405, 247 P. 828, 834. 5 State v. Bailey, supra; State v. Gallegos, 46 N.M. 387, 129 P.2d 634, 635; State v. Vigil, 33 N.M. 365, 266 P. 920, 921. 6 Silva v. Cox, 10 Cir., 351 F.2d 61, 64; Hebert v. State of Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 71 L.Ed. 270; Knoell v......
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State v. Jones
...he waived this right by his plea. State v. Gallegos, 46 N.M. 387, 129 P.2d 634; State v. Trujillo, 33 N.M. 370, 266 P. 922; State v. Vigil, 33 N.M. 365, 266 P. 920.' Appellant's third point contends that the amended information charged him with having obtained $500 from Mrs. Holden, while t......