Territory of New Mexico v. Romine

• Decision Date: 25 January 1881
• Parties: THE TERRITORY OF NEW MEXICO, Appellee, v. RICHARD ROMINE, Appellant.
• Court: New Mexico Supreme Court

2 N.M. 114

1881 -NMSC- 010

THE TERRITORY OF NEW MEXICO, Appellee, v. RICHARD ROMINE, Appellant.

Supreme Court of Territory of New Mexico.

January 25, 1881

Appeal from District Court of Doña Ana county.

Appellant was indicted at the March term of the district court for killing Patrick Rafferty, on the 16th day of March, 1877, at the county of Grant, in the territory of New Mexico, with a hammer, and was convicted of murder in the first degree.

S. B Newcomb and Catron & Thornton , for appellant.

The jurors who sat in the trial of this case were Mexicans, and none of them understood the English language, in which the proceedings at the trial were had. The policy of the common law is, that " Where there is a wrong, there is a remedy," and the common law, as recognized by the United States and the several states of the union, is the rule of practice and decision in the territory of New Mexico in criminal cases: Compiled Laws of New Mexico, sec. 18, page 194. The defendant did not except to the jurors. He had a right to a trial by an English speaking and English understanding jury: Lyles v. The State , 41 Tex 172, and the cases therein cited. In this case, the learned judge, who delivered the opinion, says that the constitution says, " That the right of trial by jury shall remain inviolate." These precise words are found in the " Bill of Rights:" Compiled Laws of New Mexico, sec. 5 page 636. He further says, " It (the trial by jury) cannot be considered as remaining inviolate, when the jurors can neither speak, nor understand the language in which the proceedings were had," etc., etc. In Lyles v. The State , 41 Tex. 172, the court further say, " A trial by such a jury as sat in this case" (nine of whom did not understand nor speak the English language, in which the proce3edings were had) " was violative of section 16, article 1, of the ‘ Bill of Rights' of the constitution, which declares that, ‘ No citizen shall be deprived of life, liberty or property," DDD’ etc., etc., going on, giving the exact language, as that found in sec. 15, page 640 of the Compiled Laws of New Mexico, which see.

Sec 15, page 496, and sec. 21, page 498, Compiled Laws of New Mexico, state what is necessary to parties " liable to be chosen and to serve as grand and petit jurors," etc.

Such persons are not competent jurors, however, unless they can speak and understand the language, in which the proceedings are had on the trial. If such were intended it would be null and void. See Lyles v. The State , 41 Tex. 172, and also sec. 5, page 636, " Bill of Rights," Compiled Laws of New Mexico, and sec. 15, page 640, Id. also 8 Ala. 302.

The instructions to the jury were written in the English language and orally interpreted to the jury in the Spanish language. See 41 Tex. 172, and sec. 1, page 200, Compiled Laws of New Mexico, which declares that the instructions shall be in writing.

If the instructions were orally interpreted to the jurors, they were oral instructions-nothing but verbal instructions, and contrary to the law. To instruct the jurors in writing was a duty imposed upon the presiding judge, by the statutory law governing his judicial acts, and a right to which the defendant was entitled and could not waive. The purpose of instructing in writing is that the jury may see them while deliberating, and by verbal interpretation they cannot properly catch and retain them, and for this reason the law orders that they be given in writing, and therefore, any procedure which is a violation of the spirit of this law is an injury to the defendant. The law says that in a trial of this kind, certain acts shall be performed by the presiding judge. The law for wise purposes says the jurors shall be instructed in writing, and he disregards what the law says, and a plain and imperative duty is neglected, and the jurors are verbally instructed.

The defendant need not except; in a capital case he stands upon all his rights and waives nothing, and he is not required to instruct the court as to what are and what are not its duties, and if the plain letter and spirit of the law is not complied with, this dereliction is not chargeable to the defendant, and the case must be reversed because of this error: Nomaque, an Indian, v. The People , Breese (Ill.), 145; People v. McKay , 18 Johns. (N. Y.), 212.

" In a capital trial, if error intervene, it must be assumed to be injurious to the prisoner, and he is entitled to a reversal of judgment. The courts have no power to affirm the case: People v. Williams , 18 Cal. 187."

The court erred in commenting upon the evidence of appellant: Page 428 " Albany Law Journal," May 31st, 1879; Veatch v. State , 56 Indiana 584; 26 Am. Rep., 44.

The court erred when it told the jury that the evidence showed the offense to be either murder in the first degree, or murder in the fourth degree, or that the killing was justifiable, because it invades the especial province of the jury, and takes from the consideration of the jurors the other degrees of criminal homicide, a right to which the defendant is entitled. See The State of Iowa v. Ezra C. Clemons , " Northwestern Reporter," vol. 1, p. 82 (No. 9 New Series), which says, " All the degrees of criminal homicide should be explained and submitted to the jury. *** The degree of the crime is to be determined by the jury, and not by the court, and there can be but one rule for the court, in all cases." See also 41 Tex. 172.

The court erred, when it told the jury what the evidence tended to show, and on what points certain evidence had some bearing: Bill v. The People , 14 Ill. 432; Bond v. The People , 39 Ill. 26; Kennedy v. The People , 44 Ill. 283; Hopkins v. The People , 18 Ill. 264; Morrison v. The State , 41 Tex. 516; Bishop v. The State , 43 Tex. 390; Rice v. The State , 3 Ct. of App., 451; Haskew v. The State , " Texas Law Journal," November 26th, 1879, published at Tyler, Texas. Opinion filed November 12th, 1879. Note the following extracts from the instructions: First, the judge says, " From the evidence before you, if the defendant is guilty of murder in any of the degrees designated by law, it must be either murder in the first degree or murder in the fourth degree." Then, further on, he says: " Murder in the fourth degree, on which some part of the evidence, if true, has some bearing, consists," etc.

This tells the jury that the defendant's evidence is false, and, therefore, there is no evidence to show it to be in the fourth degree. Is this the law? Is it just and fair? The jury are to pass untrammelled upon the credibility of the witnesses and the bearing of the evidence. Then, again, " If the defendant actually killed Rafferty, then the case, as presented by the evidence, is either murder in the first degree or murder in the fourth degree, or the killing was justifiable." Again, " If the killing was justifiable, then the case, as presented by the evidence," etc. If this is the law, what is the province of the jury? What figure do juries cut in legal investigation? Finally, the court says: " You have heard his statement of the case. In determining the question as to whether the defendant has told the truth, and all the truth, as to the position of the deceased at the time he received the fatal blow, and in reference to all the circumstances, it will be proper for you to consider the fact that he is the defendant; and that the greatest possible temptation is presented to him to testify in his own favor, if he is really guilty."

This is not proper as an instruction from the court. It ignores the reasonableness or unreasonableness of his statement, taken in connection with the other circumstances proved by other evidence.

In a capital case, when the instructions do not announce correct legal principles, or, being correct, do not apply to the case, though no exceptions are taken to them, the appellate court, in the face of the record, will not pronounce sentence of death on the prisoner, but will award a new trial: Falk v. The People , 42 Ill. 331; Schlenker v. The State , Supreme Court of Nebraska, October 15th, 1879, Northwestern Reporter, vol. 2, New Series, p. 710. In criminal cases, where life is at stake, it is not required that the evidence be palpably insufficient to warrant a conviction, before an appellate court will reverse, the rule being different in civil and criminal cases, and especially where life is at stake: Falk v. The People , 42 Ill. 331.

If the prisoner was guilty the evidence would have equally well applied to murder in the third or fifth degrees as to murder in the first and fourth: Comp. L., secs. 12 and 13, p. 320.

The court should also have instructed as to both causes of justifiable homicide. The first cause being equally applicable to the case with the second: Comp. L., sec. 5, 1st and 2d ed., p. 313.

The jury should have assessed the punishment: Comp. L., sec. 22, p. 372; People v. Bonney , 19 Cal. 446; People v. Bonney , 40 Cal. 129; People v. Marquis , 15 Cal. 38; People v. Nichols , 34 Cal. 217.

Premeditation must be proven, and cannot be presumed from the mere fact of killing: Stoakes v. People , Thompson's Cases, 931.

W. L. Rynerson and Wm. Breeden, for appellee.

The jury was a lawful one; whether they understood English or not is of no consequence. If this were a valid objection it was waived by the defendant in consenting to go to trial and failing to challenge the jurors on that ground: 1 Bish. Crim. Law, 995, et seq. , and particularly sec. 997 and authorities there cited.

It was not necessary that the verdict should fix the punishment. The indictment charged murder in the first degree, and the verdict was guilty as charged, that is, guilty of murder in the first degree. The punishment of this offense is...