Territory v. Cordova
| Decision Date | 25 April 1902 |
| Citation | 68 P. 919,11 N.M. 367,1902 -NMSC- 012 |
| Parties | TERRITORY v. CORDOVA. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. Errors relied on appeal must be specifically pointed out before they will be considered by the appellate court.
2. It is not error for the court to call the attention of counsel while they are addressing the jury, to what the court believes the evidence shows, so that they can correct any statements they may have made.
3. Section 2994 of the Compiled Laws of 1897, which provides that the court shall not comment on the evidence, relates solely to the instructions given by the court to the jury.
4. In addressing the jury, the district attorney said "Gentlemen, the verdict of the people and the community is that the defendant is guilty." It is not such language as would justify us in reversing this case especially as the court announced in the presence of the jury that these words were taken from them. The presumption is unless the contrary is shown by the record, that all of the acts of the presiding judge during a trial are regular and in accordance with the law.
5. Our statute requiring that each instruction should be marked on the margin either "Given" or "Refused" refers solely to instructions that may be asked by either party, and not to the general instructions the court gives of its own motion.
6. When the list of the jurors which is furnished to the defendant in capital cases 24 hours before trial contains a name that is wrongly copied from the list of jurors, it is not reversible error, unless the defendant objects to going to trial unless a correct list is furnished him.
Appeal from district court, Socorro county; before Justice Daniel H. McMillan.
The appellant, Lazaro Cordova, was indicted at the May term of the district court for the county of Socorro, charged with having murdered one Telesfor Luna, in said county, on February 27, 1901. Trial was had at the same term, and appellant was convicted of murder in the second degree; the jury recommending him to the clemency of the court. Motion for new trial was filed, argued, and overruled, and appellant was sentenced by the court to imprisonment for 21 years in the territorial penitentiary. Appeal was prayed and granted. Affirmed.
E. V. Chaves, for appellant.
Edward L. Bartlett, Sol. Gen., for the Territory.
The errors assigned are seven in number, of which the first, that "the court erred in admitting improper, irrelevant, and incompetent evidence in the trial of said case," is so general that we will not consider it; for we have held, in common with the general practice of appellate courts, that such a general assignment of error is not good ground for review. Territory v. Guillen, 66 P. 531; Cevada v. Miera, 61 P. 125; Neher v. Armijo, 66 P. 517. The rule requiring that errors relied on appeal should be separately pointed out, before they will be considered by the appellate court, is a wise one; for an attorney who has tried a case is familiar with all of the facts and points raised on the trial, while it is practically impossible for this court to search through the entire record with the view of ferreting out what errors, if any, have been committed on the trial.
The second and third assignments we can consider as one, for they relate to the same matter, to wit, that the court erred in stopping counsel for appellant while making his final argument to the jury, and saying in the presence and hearing of the jury, "The evidence is that both the deceased and defendant were facing each other at the time defendant fired." Just what the counsel for the appellant was saying to the jury at the time the court made this remark does not appear in the record, although in the written opinion filed by the learned judge who tried the case below, in overruling the motion for a new trial, it appears that the counsel for the defendant, in summing up, stated to the jury that at the time defendant fired the shot the deceased had turned round, with his back towards defendant, while attempting to load his gun; counsel taking an attitude before the jury, and illustrating how it supposedly occurred. We do not see how this remark of the judge was against any statute or recognized rule of law. The attorney for the appellant contends that the remark of the court was a comment on the weight of the evidence, and was thus in direct conflict with section 2994 of the Compiled Laws of 1897. That section is as follows, to wit: This statute, we think, relates entirely to instructions which are given by the court, and was intended, no doubt, to change the practice which exists in the United States courts, where the judge, in giving his instructions, is allowed to comment freely on the evidence, and point out to the jury such parts of it as he thinks are entitled to consideration at their hands. We do not think that it was intended to prohibit the court from calling the attention of counsel, when they were addressing the jury, to any inaccuracies or misstatements which may inadvertently have crept into their remarks. It is a well-settled rule that counsel, in addressing juries, must keep strictly to the facts. State v. Comstock, 20 Kan. 655. And they have no right to state to the jury, as facts, matters which the evidence does not bear out; and, if the court thinks that counsel do go outside of the record in addressing the jury, it is proper for the court to call their attention to what he thinks the evidence really is, so as to permit counsel to correct themselves. We cannot see that in this case the court did anything else. The language used by counsel in addressing the jury is not disclosed by the record, but it is perfectly evident that he was, or that at least the court thought that he was, misleading the jury by a misstatement of the evidence; and believing this, whether mistakenly or not, we think that it was perfectly proper for the court to call the attention of counsel to what he thought really was the evidence. When we say that the court throught that counsel was misleading the jury by a misstatement of the evidence, we do not mean to be understood as intimating that counsel was doing so intentionally, for nothing could be further from our minds; but, rather, that, in his zeal to guard his client's interests, he inadvertently said something which the court thought was not warranted by the evidence. In addition, it nowhere appears in the record that counsel claimed to the court that the evidence in the cause showed otherwise than the court stated it to be, nor that he pointed out to the court any evidence to corroborate his statement to the jury. We have examined a number of authorities cited by the learned counsel for the appellant in support of his contention, and all of those examined by us relate to comments made by the court on the evidence in the giving of instructions to the jury, and they therefore do not apply to the facts in this case. These assignments therefore point out no error.
The fourth assignment is that the district attorney, in addressing the jury, said, "Gentlemen, the verdict of the people and the community is that the defendant is guilty," to which counsel for appellant then and there excepted, and asked that it be taken from the jury, but that it was not so taken from the jury. We cannot see that the use of the language complained of by the district attorney was such as would justify us in reversing this case. In both the cases of Chacon v. Territory, 7 N. M. 247, 34 P 448, and Territory v. Chamberlain, 8 N. M. 538, 45 P. 1118, equally as strong language was used, but this court held that the cases should not be reversed therefor. As stated in the case of Chacon v. Territory, supra, the "trial court enjoys peculiar facilities for observing the propriety of forensic arguments, and its discretion, when invoked, should only be interfered with in the absence of obvious or probable injury." Let us examine and see just what did happen. The record says: ...
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