Territory v. Ayers.

• Citation: Territory v. Ayers, 15 N.M. 581, 113 P. 604, 1910 NMSC 50 (N.M. 1910)
• Decision Date: 29 August 1910
• Citation: 113 P. 604,15 N.M. 581
• Parties: TERRITORYv.AYERS.
• Court: New Mexico Supreme Court

15 N.M. 581

113 P. 604

TERRITORY

v.AYERS.

Supreme Court of the Territory of New Mexico.

Aug. 29, 1910.Rehearing Denied Jan. 5, 1911.

Syllabus by the Court.

In laying the foundation for the introduction of the record of former testimony given by a witness claimed to be absent from the territory, declarations made by the witness as to his intention to leave the territory permanently, and the return of the sheriff of “Not found” indorsed on the subpœna issued for the witness, are each of them competent to prove that the witness was not available.

The evidence in this case was considered, and held not to tender a plea of self-defense. Held, that an instruction as to self-defense, though erroneous, was an error of which the appellant could not complain.

Where a trial court fails to instruct the jury as to all the essential ingredients of the crime charged, and the defendant neither calls “the court's attention to such omission, nor takes exception thereto,” he cannot avail himself of such error on appeal. Territory v. Watson, 12 N. M. 419, 78 Pac. 504.

An instruction defining a “reasonable doubt” to be “one for which a reason could be given, based on the evidence or want of it,” though erroneous, does not in this particular case constitute reversible error, where the jury might well have found the defendant guilty solely on his own testimony.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Carlos Cecil Ayers was convicted of murder, and he appeals. Affirmed.

Pope, C. J., and Wright, J., dissenting.

Where a trial court fails to instruct the jury as to all the essential ingredients of the crime charged, and the defendant neither calls “the court's attention to such omission nor takes exception thereto,” he cannot avail himself of such error on appeal.

E. W. Dobson and Thos. K. D. Maddison, for appellant. Frank W. Clancy, Atty. Gen., for the Territory.

MECHEM, J.

This is an appeal from a conviction of murder in the third degree. Five assignments of error are made and insisted upon in the argument and brief of appellant's counsel. The fifth assignment covers the same objections that are raised in the second and third assignments.

1. It is first claimed that the record of the testimony given by one Dr. Cutter at the preliminary hearing of the appellant was improperly admitted. This question is raised by exceptions to the action of the trial court: (1) In allowing the witness Davern to testify over appellant's objections that Cutter was located in Los Angeles, Cal., that he left Albuquerque to go there about a year before the trial, that, before leaving, he stated to Davern that he was going to Los Angeles to take a position as surgeon of a traction company there. On cross-examination Davern testified that all he knew about Cutter's leaving was what Cutter told him and that he had not seen Cutter since he left. (2) Because the court considered the return of the sheriff on the subpœna issued for Cutter, which was in the following words: “I further certify that Dr. James B. Cutter could not be found in my territory, and is now in California. P. Armijo, Sheriff of Bernalillo County, *** by R. Lewis, Deputy Sheriff.” The subpœna was written October 27, 1908, filed by the sheriff November 13, 1908, and the case was called for trial the 18th of the same month. In the case of King v. McCarthy et al., 54 Minn. 190, 55 N. W. 960, the Supreme Court of Minnesota in commenting on the competency of declarations of an absent witness said: “Whether he intends to return is a fact only positively known to himself, and upon that question his own declarations are admissible in connection with other evidence of the fact of his departure or absence from the state. We do not understand that the competency of evidence upon a preliminary question of this kind which is to a certain extent addressed to the sound discretion of the court is governed by the same strict rules which apply to the admission of evidence upon the issues of the case. Anything which will reasonably satisfy the court that the absent witness is not likely to return within the jurisdiction of the state may be admitted. See Wyatt v. Bateman, 7 Car. & P. 586; Austin v. Rumsey, 2 Car. & P. 736; also, Prince v. Blackburn, 2 East. 250.” In the case of Hill v. Winston et al., 73 Minn. 80, 75 N. W. 1030, the court not only allowed the admission of the declaration of the absent witness as to his residence, but also received the sheriff's return of “Not found” on the subpœna, and as to the competency of the return said: “Nor did the court rule incorrectly when it received in evidence as preliminary to the admission of the former testimony the return of the sheriff by his deputy made upon the subpœna issued April 29th for this same witness, the return bearing date May 12th. The return that after due and diligent search and inquiry for the witness Johnson throughout the county he could not be found therein, made but two days before the trial, was competent as proof of the fact that the personal presence of the witness could not be obtained in connection with other proof of the same fact.” There was sufficient evidence of a competent character to satisfy the trial court that the witness Cutter was beyond the reach of process of the court, and there was no error in admitting the record of his testimony at the preliminary hearing, where the appellant had the opportunity, and did, cross-examine the witness.

2. The appellant complains of certain instructions given as to the right of self-defense. We have read the evidence in the case with great care, and are of the opinion that the appellant was not entitled to any instructions as to self-defense. There were no eyewitnesses to the shooting. There was nothing in the dying declaration of the deceased that in any way tended to show that appellant acted in self-defense, and, if the plea was tendered in any manner, it was by the evidence of the appellant. The appellant, who was a night operator at Isleta, had been allowed by the conductor of a passenger train to go upon a coach and get ice water. According to his testimony, he had just filled a bucket and was descending the steps of the coach, when he met deceased, a colored porter on the train. Quoting from appellant's testimony: “As I was going down the steps, I met this colored porter on the second step, and I-he asked me, ‘What the hell I was doing on there getting ice water off the car?’ I told him I had permission from the conductor to get the water off there, and it was none of his damned business, and, as I went to get off the car, I had the bucket in my left hand. I went to get off, and he struck me aside of the head a terrible blow, and I fell off, which naturally, which knocked the bucket upside. *** I was terribly scared, and for fear he would follow up his attack I pulled my revolver, and shot him at the moment. Q. How much time elapsed between the time you struck the ground and the time you shot him? A. Instantly. I shot him instantly. Q. What was the result of the blow to you? A. It frightened me terribly. Q. Describe the position Harrison was in when you fired the shot. A. He was on the second step, looked as if he was fixing to - (objection; no ruling). A. He was on the second step. Q. Which way was he facing? A. He was facing me. Q. How far was it from the lower step to the ground at the place he knocked you off the step? A. I suppose it must have been three feet. Q. What position were you in to the best of your recollection at the time you fired the shot? A. I was on my back. Q. The train had not started when you fired the shot? A. Yes, sir; it was moving along slowly as best I can remember.” There was no evidence that the deceased was armed with a deadly weapon, or that at the time of the shooting the appellant was being attacked, or that he had any reason to apprehend that he was in danger of even great bodily harm. “It is clear that, to establish a case of justifiable homicide, it must appear that something more than an ordinary assault was made upon the prisoner. It must also appear that the assault was such as would lead a reasonable person to believe that his life was in peril.” Allen v. U. S., 164 U. S. 492, 17 Sup. Ct. 154, 41 L. Ed. 528. “But the danger which will warrant an exercise of that right of self-defense must have been one of great injury to the person, that would maim or be permanent in character, or might produce death.” Wharton on Homicide, 376; Acers v. U. S., 164 U. S. 388, 17 Sup. Ct. 91, 41 L. Ed. 481. “The phrase ‘great personal injury,’ as used in the statute, means something more than apprehension, however imminent, of...