Territory v. Emilio.

• Decision Date: 27 February 1907
• Citation: 89 P. 239,14 N.M. 147
• Parties: TERRITORYv.EMILIO.
• Court: New Mexico Supreme Court

14 N.M. 147

89 P. 239

TERRITORY

v.EMILIO.

Supreme Court of the Territory of New Mexico.

Feb. 27, 1907.

Appeal from District Court, Lincoln County; before Justice Edward A. Mann.

Rosario Emilio was convicted of murder, and he appeals. Affirmed.

Laws 1903, p. 218, c. 112, § 1, provides that every jury commissioner shall be disqualified to select jurors for two successive terms of court. By Laws 1903, p. 175, c. 71, § 3, the regular terms of the superior court of L. county were fixed to be held on the first Monday of March and September in each year, but by Laws 1905, p. 204, c. 89, § 1, the time of holding such terms was changed to the second Monday of April and October, so that there was no term of such court in March, 1905. Held, that the fact that commissioners who selected the jury for the April, 1905, term at which accused was tried and convicted, were also the commissioners who would have selected jurors for the preceding March term, had one been held, did not disqualify them to select jurors for such April term.

George B. Barber and R. P. Bannes, for appellant.

W. C. Reid, Atty. Gen., for the Territory.

PARKER, J.

The appellant was indicted on April 11, 1905, charged with the murder of Antonia Carrillo de Mirabal on April 3, 1905, was tried, and on May 3, 1905, was convicted of murder in the first degree, and on May 5, 1905, was sentenced to death.

1. Appellant complains of the denial of his motion for a change of venue. He filed his motion setting up local prejudice against him, and supported the same by the affidavits of four witnesses. The court required the witnesses to be produced and examined as to whether they were disinterested, and, upon hearing, determined that they were not, and denied the motion. Counsel for appellant argue that the statute (section 2881, Comp. Laws 1897) is mandatory, and, upon showing in statutory form, no power resides in the trial court to inquire into the knowledge or disinterestedness of the supporting witnesses. The previous decisions of this court settle this question to the contrary, and the same needs no discussion here. See Territory v. Gonzales, 68 Pac. 925, 11 N. M. 301; Territory v. Vialpando, 42 Pac. 64, 8 N. M. 211; Territory v. Leary, 8 N. M. 180, 43 Pac. 688.

2. Appellant complains of the denial of his motion for a continuance. He alleged that he was unable to secure the attendance of a witness who would testify that the deceased committed suicide. The prosecution thereupon admitted that the absent witness, if present, would testify as alleged in the motion for continuance. The court thereupon overruled the motion. The admission was made in pursuance of section 2987, Comp. Laws 1897, which is a part of chapter 6, p. 47, Laws 1880, entitled “An act to regulate practice and procedure in the courts,” and applies to criminal as well as civil cases. Territory v. Kinney, 3 N. M. (Gild.) 656, 9 Pac. 599. No constitutional objection to the statute is urged. The court was right, therefore, in denying the continuance on this ground. Appellant further stated in his motion for a continuance “that he was indicted for the crime alleged against him on the 11th day of April, 1905; that in the limited time which the present term of the court will last neither himself, his family, his attorney, nor anybody else, nor all combined, will have a reasonable and sufficient time to prepare his defense if his case is tried at the present term of this court.” Appellant is alleged to have committed the crime on April 3d, was indicted April 11th, and put upon trial May 1, 1905. It is true that the procedure was prompt in view of the serious character of the charge in its consequences to the appellant. But the gravity of the charge alone furnishes no reason for a continuance. If the appellant could as well present his defense to–day to a charge of crime committed yesterday as he could at a later time, there is no reason for delay. In this case the law is perfectly simple and the facts plain. The charge is murder by shooting, and the defense is that deceased committed suicide. Appellant does not deny his presence at the scene, but, in fact, testifies to the details of the alleged suicide. So far as appears, every person who could throw any light or sidelight on the facts and circumstances was present and testified. Appellant does not point out wherein the facts are complicated or show why he was not as fully prepared for his trial as he could ever be. The motion for a new trial contains no hint that any new facts had been discovered tending to change the degree of appellant's guilt, or to show his innocence. He merely asserts that the bald claim in his motion that he could not be prepared for trial was sufficient to require a continuance. This claim is not well founded. Assuming that decisions such as this, resting in the sound discretion of the trial court, will not be disturbed except for a gross abuse of discretion, we decide that the action of the court below in denying the motion for a continuance in this case was entirely correct.

3. Appellant complains of the denial of his motion to quash the venire of petit jurors. He alleges as ground for said motion that two of the three commissioners to select the jury were also commissioners to select jurors for the preceding March term, in violation of section 1, c. 112, p. 218, Laws 1903. It appears that formerly the regular terms of the district court for Lincoln county were fixed by law to be held on the first Mondays of March and September of each year. See section 3, c. 71, p. 135, Laws 1903. On March 2, 1905, the time of holding said terms was changed to the second Monday of April and October. Section 1, c. 89, p. 204, Laws 1905. On March 15, 1905, it was provided that the next regular term for the county should be held on the second Monday in April (this was the term at which appellant was convicted), and that thereafter they should be held on the second Monday of May and November of each year. It thus appears that no March term of court could have been held; the power to hold the same having been taken away before the same could have been held. The objection, then, to the commissioners becomes a purely technical one, if, indeed, it is well founded upon the strict letter of the statute. The statute provides: “Every such commissioner shall be disqualified to select jurors for two successive terms of court.” Section 1, c. 112, p. 218, Laws 1903. The whole object of the jury law, as it then existed, was to provide for rotation in office both as to commissioners and veniremen. Its plain object was to provide against professional commissioners and jurymen, and thus bring a larger portion of the people into touch with the courts and the administration of the law. It was surely no violation of the spirit of the law to hold that commissioners who had selected the jurors for a term of court which was never held might act and select the jurors for the succeeding term. Nor was it a violation of the letter of the law. A term of court is not such unless it is held. When the term is opened by a proper judicial officer, jurors impaneled, and business transacted, it then becomes a term of court within the meaning of the jury law. The court was right in overruling the motion.

4. Appellant complains of the admission of an alleged confession by him as to the homicide. The form in which the same was introduced is as follows: Jose Gonzales, the deputy sheriff who made the arrest of appellant, testified that he ordered appellant to surrender, and that he replied that he would not; that he then ordered the posse to fire at appellant, which was done; that witness thought he heard appellant groan, and then ordered the posse to cease firing; that appellant then said not to shoot, that he would surrender; that witness then ordered appellant to get up and throw up his hands, which he did; that, when within about six yards from witness, appellant dropped one of his hands, and witness told him to again raise it or he would shoot appellant. Witness then testified: “I told him that I was sorry for having shot at him. Then he told me he had killed the woman– (Objection by counsel for appellant. Objection overruled.) Then he said that he had killed a woman. I says to him, ‘I came to arrest you because you have killed a woman’; and he says, ‘Yes; I killed her.”’ Objection was here interposed as follows: “We object to that, and ask to have it stricken out, as no foundation has been laid for any admission on the part of the defendant.” The objection and motion was overruled. From this point of arrest appellant was taken to near the body of the deceased, when the witness said: “At that time there was a great many people there. I don't know who they were, and I stopped them, and took Estolano Sanches, Rob Hart, and Bob Brady, and went to where the deceased was. Then some one struck a match. I think it was Rob Hart–I was behind him. When they struck that match, then I asked him if that was the woman he had killed.– (Objected to by counsel for defendant on the ground that the circumstances show that the statement was made when the defendant was put in fear. Overruled). Then he says, ‘Yes.”’ Another witness, Robert Brady, testified as follows: “Then Jose Gonzales says to Rosario Emilio, ‘This is the woman that you have killed?’ (Objected to for the same reason heretofore mentioned. Overruled.) He says, ‘No.’ Then Jose Gonzales says to him again, ‘Didn't you just tell me that you had killed her?’ Then he says, ‘Yes; this is the one that I killed.”’ The same witness testified concerning the circumstances of the arrest: “Then he says to me, ‘If I hadn't recognized you by the voice, none of these s_____s of b_____s would have got me.”’ The fundamental principle upon which confessions have been excluded which are induced by promises or threats, hope, or fear is that under such circumstances the temptation to speak falsely is so great as to render...