State v. Waggoner.

• Decision Date: 03 January 1946
• Docket Number: No. 4906.,4906.
• Citation: 49 N.M. 399,165 P.2d 122
• Parties: STATEv.WAGGONER.
• Court: New Mexico Supreme Court

49 N.M. 399

165 P.2d 122

STATE

v.WAGGONER.

No. 4906.

Supreme Court of New Mexico.

Jan. 3, 1946.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Dick Waggoner was convicted of assault with intent to kill, and he appeals.

Affirmed.

Refusal of instruction to acquit defendant of assault with intent to kill, if jury believed that defendant had right to defend property on land leased to him from trespass by prosecuting witness and that it was necessary to shoot such witness to prevent trespass, was not error, in view of given instructions sufficiently covering law applicable. 1941 Comp. § 41-607.

[165 P.2d 122 , 49 N.M. 400]

J. Benson Newell, of Las Cruces, for appellant.

C. C. McCulloh, Atty. Gen., and Thos. C. McCarty, Asst. Atty. Gen., for appellee.

MABRY, Chief Justice.

Appellant, Dick Waggoner, was charged, and convicted, upon trial to jury of the crime of assault with intent to kill, 1941 Comp., Sec. 41-607, by discharging a pistol at one J. W. Harper, Jr., and he appeals. Appellant had leased a ranch from one Mrs. Cox who thereafter lived with him and his wife on the Cox property. Mrs. Cox had borrowed a water tank from a neighbor, one Sam Swope, her son-in-law, appellant bringing the tank from the Swope ranch and connecting it to the windmill on the Cox property. He used some of his own fittings, of small value, to make the connection with the well, and the water conveyed to the tank was used by both families at the Cox place for domestic purposes and for watering a small number of Waggoner's livestock on the place.

Thereafter Swope sold his ranch to one Jack Prather and J. W. Harper, Jr., the last named being the prosecuting witness. Waggoner was advised that the tank which Mrs. Cox had borrowed for his and her use at the Cox ranch went to the purchasers of the Swope ranch. Harper, one of the purchasers, saw Waggoner and told him he wanted to get the tank and advised that he was later coming for it. Prior to Harper's coming for the tank there was some discussion as to whether he should get Mrs. Cox's permission to remove it since she herself had borrowed it from the Swope ranch. It appeared that appellant may not have been willing to give up the tank until the permission of Mrs. Cox, the borrower, should be granted. In any event, as subsequent developments disclosed, he was not ready to release, or return, the property when Harper wanted it.

Harper and a neighbor thereafter went to the Cox place, disconnected the tank from the windmill, ‘rolled it out to the fence and across it,’ off the premises and into the highway and were in the act of loading the tank on the back of his pickup truck when Waggoner approached, began calling to him and fired at him, the bullet passing through Harper's hat.

Seven assignments of error are made, as follows:

1. The court erred in refusing to instruct the jury to acquit defendant upon the close of state's case.

2. The court erred in refusing to admit testimony of witness for defendant, Mrs. Ellis Wright.

3. The court erred in refusing to admit testimony of defendant's witness Mrs. Virgie Smith.

4. The court erred in ruling out testimony of defendant of conversation with Mrs. Cox, owner of the ranch.

5. The court erred in ruling out proffered testimony of Mrs. Wright and Mrs. Smith at close of case.

6. The court erred in refusing to give defendant's requested Instruction No. 1.

7. The court erred in refusing to give defendant's requested Instruction No. 3.

There is no merit to Assignment No. 1, based upon the court's refusal to instruct the jury to acquit defendant.

Without recounting the facts and circumstances of the assault in particular detail, we are prepared to say that there is ample showing of the elements of malice, unlawfulness, deliberateness and premeditated design and intent to take the life of the person assaulted, if the jury should choose to believe the state's witness, as it did; in other words, there was proof of every ingredient necessary to have constituted the crime of murder if death had ensued. Territory v. Sevailles, 1 N.M. 119. There is no showing, if indeed there is a claim, that the prosecuting witness knew of the impending assault until the moment it occurred. And, there is no claim that appellant was facing any danger, threatened or otherwise, from Harper, apparently unaware until the moment of the assault, that appellant was armed and intended to so assault him.

There is likewise no merit to Assignments 2 and 3 whereby the court refused to admit certain testimony from Witnesses Wright and Smith which purported to relate the conversation with, or statement made by, Mrs. Cox prior to the time of the incident. Incidentally, Mrs. Cox died subsequent to the alleged assault and prior to the trial of this case. The testimony offered was to the effect that these two parties had a conversation with Mrs. Cox sometime prior to the time of the attempted removal of the tank and that she had told these witnesses that she didn't want anyone to take it away until Sam Swope, the owner of the tank, had settled with her, and that they had no right to take it. It was objected to as hearsay, irrelevant and incompetent, and the court appropriately sustained the objection.

Assignment No. 4, charging error because of the ruling out of certain testimony offered on behalf of appellant as to what Mrs. Cox had told him, is likewise without merit. The proffered testimony was purely hearsay. Appellant was enabled to show that he had been instructed by Mrs. Cox to get the tank from the Swope ranch and that he had gone for it and brought it to the Cox place, and any detailed conversation or statement beyond showing why he had gone for it or under what circumstances he got it from the Swope ranch would be unimportant, as well as inadmissible. Appellant was allowed to show under what circumstances he got the tank and how they all made use of it, i. e. he was enabled to explain what happened, but not to give any detailed and inadmissible conversation with the third party. And, moreover, the only objection interposed to the ruling out of that part of appellant's testimony is found in counsel's statement after objection was made and sustained on the ground that the conversation was hearsay. The statement, clearly not a proper objection, was: ‘Certainly it can't do any harm to anybody, it's just explaining why he happened to go for it.’ He urged no further objection at that time to the court's sustaining the nonadmissibility of the details of the conversation with this third person.

Assignment No. 5 covers the same question raised by Assignments 2 and 3. At the close of the case, appellant had reoffered the testimony of Witnesses Wright and Smith. The court refused to admit it upon this second offer...