Territory v. Donahue.
| Decision Date | 26 January 1911 |
| Citation | 16 N.M. 17,113 P. 601 |
| Parties | TERRITORYv.DONAHUE. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.
Jack Donahue, alias John Donahue, was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Where the objection and exception to the manner of the discharge of the jury were never made a part of the record by a bill of exceptions, the objection not appearing on the record proper nor by bill of exceptions, and as far as the record is concerned, it appears that the jury was discharged without objection and with the implied consent and in the presence of the appellant, the stenographer's record will not be received to control the record in the case.
E. L. Medler, Thos. N. Wilkerson, and W. C. Heacock, for appellant. Frank W Clancy, Atty. Gen., for the Territory.
This is an appeal from a conviction of murder in the second degree.
1. Appellant complains of the action of the trial court in sustaining a motion to strike the material allegations of a plea of former acquittal made by him on April 13, 1909, when the case was called for trial a second time. The plea alleged that at a former trial thereof the case went to the jury about 9 o'clock Saturday evening, November 7, 1908; that on the following day, Sunday, the 8th, about 2 p. m., Henry Westerfield, foreman of said jury, was allowed to separate himself from the rest of the jurors and, in charge of the bailiff, telephoned the judge of the court that the jury could not agree; that the judge told the foreman that they must try further, and the jury proceeded to again deliberate and ballot upon their verdict; that, after deliberating and balloting, they again on the same day told the bailiff they could not agree, and in a body went to the room in which there was a telephone, and by means of it, through their foreman, so informed the judge, at his residence, and thereupon by direction of the court the bailiff permitted the jury to separate and retire to their respective homes; that, after the separation of the jury, one of the jurymen telephoned to the judge to ascertain whether he should report for further duty as a juror, and he was informed by the court that he was drawn on a special venire for that case, and that he would not be held and need not report for further duty; that the defendant was not present, nor were his counsel, nor was his consent ever asked or obtained to such separation, nor was a record made thereof, nor was the court actually in open session, nor was the court in recess, but an adjournment of the same had been taken on Saturday night, the 7th of November, until Monday morning, the 9th of November, 1908; that on Monday, November 9, 1908, at 9:30 a. m., the regular hour of convening court, the jury which had been considering the case was called into the box at the direction of the judge, and, one of the jurors not appearing, he having been excused as above set forth, he was sent for and asked to come to court in order that the jury might be reconvened and formally discharged; that the jury was reconvened, and an order made discharging them and continuing the cause until a future time; that the discharge of the jury in this manner at that time was objected to and exceptions saved by the defendant. To this plea the territory moved to strike out those paragraphs which contained statements of the transaction which took place on Sunday, the absence of one of the jurors on Monday morning, his being sent for by the court, and the reconvening of the jury, upon the ground that these matters were “irrelevant, immaterial, redundant, and unauthorized, and were contrary to the record in the case.” This motion was sustained, and defendant excepted.
We are to pass upon this question on the record presented to us. The matters occurring on Sunday set forth in the plea of abatement, the objection to the discharge of the jury on Monday morning, are not shown by the record. As to the objection to the discharge of the jury and the exceptions to the court's ruling on the same, the plea contained the following: “To the discharge of said jury in the manner aforesaid, the defendant, by his counsel, then and there objected and excepted, although such objection does not appear upon the court's record of the case, but does appear upon the stenographer's record of the proceedings in said cause, and would appear of record in a bill of exceptions, if the same should ever be made.” The objection and exception were never made a part of the record by a bill of exceptions. The objection not appearing on the record proper nor by bill of exceptions, as far as the record is concerned, it appears that the jury was discharged without objection and with the implied consent and in the presence of the appellant. The stenographer's record will not be received to control the record in the case. District of Columbia v. Woodbury, 136 U. S. 450-467, 10 Sup. Ct. 990, 34 L. Ed. 472.
The language used by Mr. Justice Brewer in the case of Evans v. Stettnisch, 149 U. S. 605, 607, 13 Sup. Ct. 931, 37 L. Ed. 866, in which a motion was made for a new trial, based on an affidavit that neither plaintiff nor his counsel were present at the trial at which the verdict was rendered and judgment entered in the case, when the record showed that the plaintiff was present, by his attorneys, is applicable here. He said in that case: ...
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State v. Paul
...and with the implied consent and in the presence of the appellant.’ " (approvingly quoting Territory v. Donahue , 1911-NMSC-004, ¶ 2, 16 N.M. 17, 113 P. 601 )).4 In O'Kelly , however, our Supreme Court implied that it will not infer consent where the record indicates that a defendant may ha......
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State v. Manlove, 87
...in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and by our Territorial Supreme Court in Territory v. Donahue, 16 N.M. 17, 113 P. 601 (1911). See also State v. Hunt, 26 N.M. 160, 189 P. 1111 (1920), in which is discussed the general rule concerning the giving of s......
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State v. Moore.
...of the court to give additional instructions was recognized by this court in State v. Hunt, 26 N.M. 160, 189 P. 1111, and Territory v. Donahue, 16 N.M. 17, 113 P. 601. It is manifest that when the jury has requested additional instructions, or if the court, without request, recharged the ju......
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State v. Hunt
...the court below, and, according to the authorities, this is the only possible error in the instruction. In the case of Territory v. Donahue, 16 N. M. 17, 113 Pac. 601, an instruction given under similar circumstances, and which went almost as far as this instruction, was approved by the ter......