State v. Williams.

• Decision Date: 20 September 1916
• Docket Number: No. 1908.,1908.
• Citation: 161 P. 334,22 N.M. 337
• Parties: STATEv.WILLIAMS.
• Court: New Mexico Supreme Court

22 N.M. 337

161 P. 334

STATE

v.WILLIAMS.

No. 1908.

Supreme Court of New Mexico.

Sept. 20, 1916.On Motion for Rehearing, Dec. 15, 1916.

Syllabus by the Court.

Unless the assignment of error in the motion for a new trial clearly specifies the legal ground of objection, the objection will not be considered on appeal, where the question is not one of jurisdiction.

Where the facts as to whether a witness is an accomplice are in dispute, the requested instruction, charging that the witness is an accomplice, is properly refused.

A new and original question cannot be considered for the first time on motion for rehearing.

The corrupt act of a justice of the peace in delivering to a third person papers of a case tried and determined by him and appealed to the district court, instead of delivering same to proper authority, constitutes bribery under section 1670, Code 1915, and indictment therefor held sufficient.

Appeal from District Court, Curry County; McClure, Judge.

Robert N. Williams was convicted of wrongfully accepting a bribe, and he appeals. Affirmed.

A new and original question cannot be considered for the first time on motion for rehearing.

O. O. Askren, of Roswell, and W. A. Gillenwater, of Clovis, for appellant.

H. S. Bowman, Asst. Atty. Gen., for the State.

HANNA, J.

The appellant, Robert N. Williams, was convicted of the offense of receiving and accepting a bribe. He appeals from the judgment of the court sentencing him to serve a term in the state penitentiary of from not less than 3 1/2 years nor more than 4 years.

The appellant's brief omits a statement of facts; hence the following statement of facts appearing in the brief of the state will be considered as the facts of this case on appeal:

The appellant was elected to the office of justice of the peace of precinct No. 2, Curry county, N. M., January 13, 1913, for a term of 2 years, and qualified as such officer immediately thereafter. Late in the month of November, 1913, there were filed with appellant, as such justice of the peace, two complaints, each charging one Ray Moss with the offense of unlawful carrying of deadly weapons. Upon a hearing Moss was found guilty and a fine of $50 and a jail sentence of 50 days was imposed in each case. A motion for a new trial was filed, and the motion was granted by the justice, but upon consultation with the assistant district attorney and learning that the motion for a new trial had been erroneously granted, because there was no jurisdiction in the justice of the peace court to grant a new trial, this action of the court was vacated, and an appeal from the judgment of the court imposing the fine and jail sentence was prayed for and granted, and appeal bonds were filed. Upon request of appellant the docket was written up by the assistant district attorney. The transcript of the docket entries and the papers in the two cases were never transmitted to the clerk of the district court, as required by statute in cases appealed from justice of the peace courts.

From this point the material evidence, as shown by the record, was conflicting. George B. Moss, father of Ray Moss, testified for the state: That he was approached by appellant on the streets of Texico, and in conversation that ensued appellant agreed to dismiss the two cases of the state against Ray Moss upon the payment to him by the senior Moss of the sum of $50. That he (Moss) then procured $45, which appellant agreed to accept, and ordered the witness to go up to his office and place the money in appellant's desk. Witness complied, and later the same day appellant called witness to the front door of the former's office and delivered to him the papers in the two cases. These papers were later burned by the witness. Later he examined the docket entries of the two cases, and found they had not been marked “Dismissed,” as appellant had agreed should be done. That he went to appellant's house and suggested to the latter's wife that the docket be destroyed to prevent appellant “getting into trouble.” All of this incriminating testimony was denied by appellant and his witnesses. The testimony of the appellant was to the effect that during his absence from the state because of sickness the docket of his court and the papers in the Moss case had been taken from his office and had never been returned.

[1] The first five points made in appellant's brief concern the admission of evidence over his objection. The state contends that these points are not properly before the court for consideration because the motion for a new trial does not set forth the reasons why the admission of such testimony is erroneous. An examinaton of the record discloses that no reasons were assigned in the motion for a new trial as to why the admission of such evidence was erroneous. An illustration of the method pursued by appellant with reference to these points is as follows:

“(6) The court erred in admitting the testimony of the witness George B. Moss, and in overruling the defendant's objection proponded to said Moss as follows: ‘You were asked, Mr. Moss, if you did not get these papers yourself out of the office of Mr. R. N. Williams, the justice of the peace. I will ask you to state to the jury whether or not you know of this defendant, Williams, accepting money from other persons to drop cases on his docket.’ And to which the witness answered: ‘Well that is just hearsay, not of my own personal knowledge; I wasn't an eyewitness.’ And to which ruling of the court the defendant at the time excepted.”

The two statutory provisions of this state referring to motions for a new trial (sections 4226 and 1407, Code 1915) are silent as to what the motion must contain in order to constitute a proper assignment of error.

In Dutton v. State, 92 Ga. 14, 18 S. E. 545, the second paragraph of the syllabus reads as follows:

“Several grounds of the motion for a new trial complaining that evidence was admitted over objection, but not stating what the objection was, these grounds of the motion are not sufficiently definite to be considered.”

In Hoffer v. Gladden, 75 Ga. 532, the court said:

“The assignments of error on the first, second, third, and fourth grounds of the motion [for the new trial] cannot be considered here, because they all go to the admission of evidence, and the ground on which that evidence was objected to is not specified in either of the several grounds of the motion above numbered.”

In Georgia Railroad & Banking Co. v. Bohler, 98 Ga. 184, 26 S. E. 739, the court said:

“We do not think the exception to the charge of the court as stated in the motion for a new trial was well taken. The language complained of in this instruction is substantially the language employed in section 3018 of the Code, which gives a right of action for the character of injuries complained of, and is a fair statement of a sound proposition of law. It will be seen, from reading the ground of the motion wherein complaint is made because the court permitted the plaintiff to testify to certain facts, that it affords no reason for the reversal of a judgment denying a new trial, for the reason that, while it appears that the plaintiff objected to the introduction of the evidence, it is not stated what objection was made by him at the time it was offered. Therefore we cannot say whether the court ruled properly upon the objection or not. To say in the motion for a new trial that the movant objected to certain evidence, and there said that the objection should have been sustained because the evidence offered was irrelevant, does not imply that at the time it was offered the same reason was assigned why it should be rejected as was assigned as a reason why a new trial should be granted because of its admission. In other words, there was as to this ground no legal assignment of error, and the court could properly disregard it in passing upon the motion for a new trial.”

In Bray v. Walker, 112 Ga. 364, 37 S. E. 370, the court said:

“One of the grounds of the motion for a new trial is ‘because the court erred in admitting the fi. fa. in said case in evidence over the objections of claimants.’ It has been repeatedly ruled that a ground in a motion for a new trial complaining of alleged error in admitting evidence cannot be considered by this court when it does not appear from the assignment of error in the motion what objection was made by the movant to the introduction of the evidence. This court will not look through the brief of evidence in order to ascertain, if possible, therefrom what objection, if any, was made to the admission of evidence. Taylor v. State, 105 Ga. 847, 33 S. E. 190.”

In passing upon a similar question the Indiana Appellate Court, in Stout v. Harlem, 20 Ind. App. 200, 50 N. E. 492, 48 N. E. 235, said:

“A motion for a new trial must be sufficiently certain and specific to enable the court to identify the rulings without resort to any other part of the record. This court cannot look to the bill of exceptions to aid the motion, for the reason that the bill was not on file at the time the motion was presented to the trial court. It must appear that the ruling was fairly presented to the trial court for review before any question can be presented to the appellate tribunal.”

In 12 Cyc. 745, the doctrine is thus stated:

“The moving, papers should specify with clearness and certainty the grounds on which a new trial is sought. * * *”

See, also, Chestnut v. State, 112 Ga. 366, 37 S. E. 384, and 3 C. J. 967.

We cannot assume that, because appellant objected to the introduction of this evidence on certain grounds at the trial, the same objections were argued by him on the hearing of the motion for a new trial. It was his duty to clearly specify the grounds of his objection in his motion for a new trial, and, not having properly done so, no question on these points is presented for our consideration.

[2] 2. Appellant argues that the court erred in not instructing the jury that...