State v. Ybarra

• Decision Date: 17 July 1918
• Docket Number: No. 2209.,2209.
• Court: New Mexico Supreme Court
• Parties: STATEv.YBARRA.

24 N.M. 413

174 P. 212

STATE

v.YBARRA.

No. 2209.

Supreme Court of New Mexico.

July 17, 1918.

Syllabus by the Court.

Deliberation and premeditation, intent to kill, and other elements of murder in the first degree, may be sworn, like other facts, either by direct proof or by circumstances from which their existence may be inferred. Evidence examined, and held to sustain verdict of murder in the first degree.

Where the capacity of a witness is questioned on account of immature years and a preliminary examination touching his competency is allowed by the trial court, at the conclusion of which the court expresses the opinion that the child is too young to testify, but thereafter upon the request of the state it permits such child to testify, it is to be presumed that the trial court exercised the discretion conferred by section 2165, Code 1915, and that the court adjudged the witness to be prima facie competent to testify, although the court permitted such testimony to be given subject to the right to strike the same from the jury.

The fact that a child states in express terms that he does not understand the nature of an oath is not of itself sufficient ground for his exclusion as a witness, where it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts accurately, and knows that it is wrong to tell an untruth and right to tell the truth, and that if he told an untruth he would be punished, and from other facts, that he is in fact competent.

In a capital case it is essential that defendant be asked by the court, before judgment is passed, whether he has anything to say why sentence of the court should not be pronounced upon him. And, where it does not affirmatively appear from the transcript of record that such inquiry was made of the defendant at the time of sentence, the judgment will be reversed; but a reversal on these grounds only affects the sentence and judgment and leaves the verdict and precedent proceedings in full force and effect.

Appeal from District Court, Grant County; Ryan, Judge.

Pablo Ybarra was convicted of murder in the first degree, and he appeals. Remanded, with instructions as to the entry of judgment and sentence upon the verdict.

That a child says he does not understand the nature of an oath is not alone sufficient to exclude his testimony, where he has sufficient intelligence to understand its nature, to narrate the facts accurately, knows it is wrong to tell an untruth, and otherwise appears to be competent.

A. B. Renehan and Carl H. Gilbert, both of Santa Fé, for appellant.

H. L. Patton, Atty. Gen., and C. A. Hatch, Asst. Atty. Gen., for the State.

ROBERTS, J.

Appellant was convicted of murder in the first degree, and appeals. Counsel who represented him in the court below, by appointment, having enlisted in the United States Army, this court requested Hon. A. B. Renehan of Santa Fé to brief the case in this court. In this work he was assisted by Carl H. Gilbert, also of Santa Fé.

Counsel argue that the judgment should be reversed on three grounds: First, because there was no evidence from which it could be properly inferred that the homicide was either premeditatedly or deliberately committed; second, that the court erred in permitting the district attorney to examine the witness Francisco Torres as to the facts at issue in the case and in refusing to withdraw that testimony from the jury; and, third, because the record does not show affirmatively the allocutus.

[1] The first point made requires a statement of the facts as presented by the evidence for the state. The jury having found the appellant guilty of murder in the first degree, its action must be sustained unless there is an absence of evidence showing directly, or circumstantially, premeditation and deliberation. The evidence on behalf of the state shows that the defendant went to the home of the deceased, Sarah Lemos, with whom, apparently, he had prior thereto been living, although the parties were not married to each other. The deceased was living in a house with another woman; each, however, having separate apartments. He first went to the door of the apartment occupied by Mrs. Barela and asked for the deceased. He wanted to go through her room, but the witness would not allow him to do so and told him to go around the house. Mrs. Barela then went into the kitchen and told the deceased that Pablo, the accused, was calling her. Accused called the deceased, who first refused to go outside, but stood in the door and talked to him. After talking with accused for a short time, deceased went back into the room after her shawl, and Mrs. Barela told her not to go out; that Pablo was going to hurt her, but deceased replied that she thought she would go out and make up with him. She put on the shawl, stepped outside the door, and the people in the apartment heard her scream and say, “Don't kill me!” They rushed outside and found her with four or five knife wounds. This, in brief, is the version of the facts testified to by the state's witnesses.

In Wharton on Homicide, 225, the author says:

“Deliberation and premeditation, intent to kill, and other elements of murder in the first degree, may be shown, like other facts, either by direct proof, or by circumstances from which their existence may be inferred. No rule can be laid down as to the character or amount of proof necessary to show deliberation and premeditation; each case must depend upon its own facts. A premeditated design to kill may be inferred from the facts. And that a malicious killing was murder in the first degree may be shown by circumstantial evidence. The question is one for the jury to determine upon a consideration of all the surrounding circumstances tending to show the relations of the parties to each other, and the animus of the accused toward the deceased. Premeditation or other elements of murder in the first degree will not be inferred, however, from the bare fact of killing. Their existence may be inferred from the circumstances, but not presumed; in this sense the words ‘inferred’ and ‘presumed’ are not synonymous. Intent to kill and other characteristics of murder in the first degree are matters of fact which cannot be implied as matters of law, but may be inferred from the nature of the weapon used, or from acts of malice which, in the usual course of things, would cause death, or great bodily harm. And in arriving at the intention regard should be had to what transpired at the time of the killing, as well as to what transpired before and after that time. So, in case of assault with intent to kill, the intent is as necessary to be proved as the act itself; but it is unnecessary to prove the specific intent by direct, positive, and independent evidence; it may be inferred from other facts in evidence. And in...