Territory of New Mexico v. Webb
| Decision Date | 28 January 1881 |
| Citation | 2 N.M. 147,1881 NMSC 012 |
| Parties | THE TERRITORY OF NEW MEXICO, Appellee, v. JOHN J. WEBB, Appellant. |
| Court | New Mexico Supreme Court |
Appeal from the District Court of San Miguel county.
The facts appear in the opinion of the court.
S. M Barnes, for appellant.
The finding and verdict of the jury and the judgment and sentence of the court thereupon are contrary to law and void. The jury found the defendant guilty of murder in the first degree, but failed to assess the punishment, as required by law. The court assessed the punishment without authority of law. See Laws of New Mexico, by L. Bradford Prince; Practice in Criminal Cases; Kearney Code, sec. 22, p. 289; Wharton's Criminal Pleading and Practice, 8th edition, sec. 752, chap 15: " Where a statute requires in the verdict a designation of a degree, or the specific assessment of a punishment, a general verdict without such designation or assessment will be a nullity," and the numerous cases cited by Wharton, as above, sustain these positions.
The verdict of the jury being contrary to the law and evidence will be set aside: Wharton's Crim. Plead. and Practice sec. 813, chap. 18, p. 551, and cases cited therein.
The appellant should have been asked before the sentence was pronounced against him, if he had anything to say why sentence should not be pronounced against him, and it is essential that it should appear on record that this was done. The transcript of the record does not show that he was so asked. See, in support of this view, Wharton's Crim Plead. and Practice, sec. 906, chap. 19, p. 604, and the numerous adjudged cases there cited. This is the doctrine and practice at common law in all capital felonies.
A new trial should be granted, where the court below, as it did in this case, allowed the prosecuting counsel, in his closing speech, to charge the defendant with other offenses besides that on trial. The court should have not permitted this, even though no objection was made by appellant's counsel. See Wharton's Crim. Pleading and Practice, sec. 853, chap. 18, p. 584, and adjudged cases therein cited.
The jury in this case was controlled by prejudice and popular excitement against appellant at and before the trial, and the facts in this case, as developed in the transcript, show that the appellant did not obtain a fair and impartial trial, and should not, from the law and evidence, have been found guilty and sentenced to be hung. The verdict of the jury was the result of misconduct of the sheriff at the close of the argument, in announcing improperly and untruthfully, in the presence and hearing of the court and jury, that defendant's friends were present to rescue him. The jury retired to consult without this announcement being denied or explained. The jury, by the conduct of the sheriff, as above stated, and the appeals of counsel to popular prejudice against defendant, were induced to render an unjust verdict against him. These facts entitle the defendant to a new trial: Wharton's Crim. Plead. and Practice, sec. 561 and cases therein cited; secs. 849, 853, 889, and the 8th Cal. Report, 441, and adjudged cases cited.
The appellant was a peace officer of San Miguel county, N. M., at and before the alleged killing. He was justified in attempting to disarm the deceased, and in killing him in self-defense. See Laws of N. M., acts 1871, 1872, p. 59, and acts 1873 and 1874, p. 27.
It was made the positive duty of appellant, as a police officer under said laws, to arrest and disarm deceased, and if he had failed in this he would have been subject to indictment and punishment under said laws above referred to. See also Prince's General Laws of New Mexico, p. 315. The appellant, under said laws of New Mexico, was authorized and empowered as a private citizen to arrest and disarm the deceased. See Prince's Gen. Laws N. M., p. 314, sec. 9.
The proof in this case fully shows that deceased was in a public drinking saloon at a late hour in the night, acting in a boisterous, improper manner, armed with a pistol, a deadly weapon, and threatening to kill appellant, and when appellant attempted to disarm him, the deceased made an effort to shoot the appellant and refused to be disarmed. The proof shows clearly that the appellant shot deceased in his own necessary self-defense. A new trial should have been granted him: Wharton on Homicide, secs. 501 to 507, inclusive, and authorities cited; Wharton's Criminal Law, secs. 1021 and 1026. The charge of the court below was contrary to law, and, in fact, was a comment upon the evidence.
Breeden & Waldo, for appellee.
First. 1. The verdict of the jury, and the judgment and sentence of the court thereon were correct, and sufficient in form. The verdict was murder in the first degree, and the punishment is fixed by law: Comp. L. of New Mexico, sec. 2, p. 318. 2. The statute requiring the jury to assess the punishment, could not apply to this case, in which the jury had no discretion as to the punishment to be imposed, and no power to vary or change the punishment prescribed by law. 3. The statute provides that the jury shall assess the punishment. The language clearly implies a power and discretion in the jury in determining the amount or character of punishment to be imposed; a reference to the judgment of the jury as to the punishment to be inflicted. To assess means to ascertain, to determine, to fix: Bouvier's Law Dictionary, Title, " To assess," " Assessment." 4. There is no ambiguity or uncertainty in the language used, and the words of the statute are to be taken and understood in their general, usual and well-known meaning and acceptation: Beardstown v. Virginia , 76 Ill. 34; Dunn v. Reid , 10 Peters (U.S.), 524. 5. The jury could not vary the punishment prescribed by the statute. It was not their province to determine or ascertain the punishment. The statute must have a reasonable application, and the verdict in this case was all that was necessary or required by law: 1 Bish. Proced., 834; 2 Bish. Proced., 625; Littell's Select Cases (Ky.), 419.
Second. 1. The verdict was fully warranted by the evidence. The case was fairly submitted to, and determined by the jury. The most that can be said for the appellant is that there was a conflict of evidence; this it was for the jury to pass upon, taking into consideration all the evidence before it, the credibility of witnesses, their manner and appearance on the stand, etc.; this the jury did, and it is not for the court to review their finding. 2. The evidence for the prosecution being amply sufficient to warrant a conviction, this court will not disturb the verdict merely because there was conflicting and contradictory evidence, even if the court itself might upon the whole case disagree with the finding of the jury: Hilliard on New Trials, sec. 8, p. 46; Id. , sec. 11, p. 50; secs. 1 and 2, p. 91, sec. 3, p. 92; p. 6; Winfield v. The State , 3 Greene, Id. , 339; The State v. Elliott , 15 Id. , 52; 53 Ill. 509; People v. Ah Loy , 10 Cal. 301; 4 Ga. 335; 1 Scam. 130; 15 Ia. 72.
Third. 1. The omission to ask the defendant, if he had anything to say why sentence should not be pronounced against him, was unimportant, inasmuch as the purpose of such question was to enable him to offer anything he might present in mitigation of punishment, which in this case could have availed nothing, as the court had no power to mitigate or reduce the punishment, and the reason for such practice was removed by the statute admitting the defendant to testify, and the practice of hearing affidavits in support of the motion for a new trial. In any event, all that could result from this objection is, that the cause should be remanded for re-sentence upon the verdict already found.
Fourth. 1. The defendant cannot take advantage of the alleged fact that improper remarks or unfair statements or arguments were made to jury by counsel for the prosecution, because he made no objection and gave the court and counsel no opportunity for the correction thereof at the time; and the objection was fully considered on the motion for new trial by the judge before whom the cause was tried, and who saw and heard all that occurred: 57 Ga. 42; Wharton's Crim. Pleading, 560-577. 2. And, besides, the objection only appears in the record in connection with the motion for a new trial, which motion and the matters connected therewith, were determined by the court below, and its ruling thereon is not subject to review in this court: Pate v. The People , 8 Ill. 644; Holliday v. The People , 9 Ill. 111; 37 Pa.St. 168; 51 Pa.St. 332. 3. The common law was the rule of practice: Comp. L., sec. 18, p. 194. The overruling of a motion for new trial could not be assigned for error at common law.
Fifth. 1. There is nothing to show that the jury was controlled or influenced by popular prejudice, feeling or excitement, but their verdict was according to the evidence, or fully warranted by it. That being the case, this court should not disturb the verdict. 2. That question, as well as the alleged action of the sheriff, was presented, considered and determined upon the motion for a new trial, before the judge who saw, heard, and was familiar with all that transpired at the trial. Both were questions of fact, presented on the motion for new trial, and determined by the court. 3. Besides, they are only presented in connection with the motion for a new trial, and not properly brought into this court for, or subject to review.
Sixth. 1. The statements in the appellant's brief, as to his being a police officer, and the right or wrong of his action, are all matters of evidence fairly submitted and determined by the jury, and in this case not subject to review by this court.
Seventh. 1. The instructions to the...
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