Territory v. Gonzales
| Decision Date | 25 April 1902 |
| Citation | 68 P. 925,11 N.M. 301,1902 -NMSC- 007 |
| Parties | TERRITORY v. GONZALES. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. Under section 2881, Comp. Laws 1897, and rule 9 of this court, the court may, in its discretion, require defendant to produce in court the supporting witnesses to his application for a change of venue, to be examined orally under oath, as to their knowledge and interest.
2. Where such examination shows such witnesses to be incompetent, it is not error to deny the application.
3. Where there is evidence for the prosecution which, if true sustains a verdict of guilty, the verdict will not be disturbed on appeal.
4. The word "can" is properly used in an instruction informing the jury that although the indictment was for murder in the first degree they could find the defendant guilty of the lesser degrees, or not guilty as the evidence warranted.
5. It is not error for the court to instruct the jury that it is their duty to return a verdict, and that it is also their duty to harmonize the evidence, if they can do so.
6. If in the instructions of the court, the jury are fully informed as to the law of justifiable or excusable homicide, the same need not be repeated in paragraphs referring to the different degrees of murder.
7. Where there is evidence tending to show that the defendant was the aggressor, and brought on the encounter in which the deceased, being unarmed, was shot and killed, and where the defendant pleaded self-defense, it is not error for the court to charge the jury "that a person charged with the murder of another cannot avail himself of the claim of necessary self-defense, if the necessity for such defense was brought on by his own deliberate, wrongful act."
8. Where counsel are of opinion that the court's instructions do not fully cover the issues in the case, it is the duty of counsel to submit proper instructions covering omissions claimed in the trial court; and if counsel fail to do so, he is not in position to assign error upon such grounds in this court.
9. Where objection is made that the court's charge does not fully cover the issues of self-defense, but the record shows that the court gave the instructions, prepared by defendant's counsel, fully covering all defects claimed held no error.
10. It is not error for the court to refer to the defendant, in an instruction as to the credibility of witnesses, if such instruction is otherwise proper.
Appeal from district court, San Miguel county; before Chief Justice William J. Mills.
Catarino Gonzales was convicted of murder in the second degree, and sentenced to 20 years' confinement in the penitentiary from the 23d day of December, A. D. 1899, in the district court of the Fourth judicial district in and for the county of San Miguel. From this judgment and sentence he appeals. Affirmed.
An instruction that, though the indictment is for murder in the first degree, the jury "can" find the defendant guilty of a lesser degree, or not guilty, as the evidence warrants, is not erroneous in using the word "can".
The testimony in this case is quite voluminous, and somewhat conflicting. Several witnesses testified, in behalf of the territory, substantially to the following effect: That on the 24th day of June, A. D. 1898, which was St. John's Day, a difficulty occurred between the appellant and the deceased in which an ordinary fight took place, in which the appellant was the aggressor, and the appellant, getting the worst of it, made threats against the life of the deceased; that on the night of the 16th of July following, the deceased gave a dance, of which he was the manager, and the guests were invited by him; that the appellant, though uninvited, came to the dance; that he was armed with a revolver, and did not disarm himself during the dance, as required by law; that he entered the ballroom unmolested, and was invited to participate in the dancing by the deceased, and that he did so participate; that he acted in a surly and angry manner while in the dance hall; that he approached one of the guests, who had not been assigned a place on the floor, and endeavored to prejudice him against the deceased, who was managing the dance, by suggesting to him that he had been slighted by the manager, and that during the evening he had used vile language towards the deceased, and invited him to come out of the ballroom, but that the deceased did not go, nor did he at any time during the evening show any ill feeling toward the appellant; that when the dance was over the deceased started to leave the house, going towards his mother-in-law's house, with his wife on one side and Franciaco Valencia on the other side. The appellant, who was standing to one side of the door, a short distance outside of the dance hall, called to the deceased, and said, "Come here, you son of a bitch!" that the deceased, hearing this vile language addressed to him by the appellant, turned from his wife and Valencia, and started back toward where the appellant was standing, and at the same time the appellant started to go toward the deceased, and that before they reached each other, the distance being stated differently by different witnesses, the appellant fired three or four shots at the deceased; that when the first shots were fired, Alcario Valencia, who was standing beside the deceased, grabbed the revolver with his hand, and that after he had taken hold of the revolver, one or two other shots were fired by the appellant; that Valencia and the appellant scuffied for the possession of the revolver, and Valencia finally obtained the revolver, and delivered it to the officers; that several witnesses testified that the deceased was unarmed, and that there were no weapons of any kind in his hands when he was advancing toward the appellant; that there was no fight between the deceased and the appellant; that the only struggle was between Valencia and the appellant, and this took place after the first shots had been fired, and in the struggle both the appellant and Valencia fell to the ground; at the deceased was taken to the residence his mother-in-law, and two wounds were found upon his person, one in his body and other in his wrist; and from the physician's testimony, and the other testimony the territory, the deceased died from the infects of the wounds inflicted by the appellant. The testimony on behalf of the decease, as disclosed by the testimony of the appellant, is that he was at the dance, and he was invited to dance, but that he did not participate; that the reason he was armed was that he was going out to hunt some stock; and the reason he did not disarm was because the manager of the dance did not ask him for his revolver; that the deceased asked him to leave; denied that he invited the deceased out of the house, but testified that the deceased invited him out of the house to settle their former difficulty; that before the dance was over he went over to a near-by saloon, and that as he was coming from the saloon the people were leaving the dance hall, and, as the deceased passed by where he was standing, with his wife and Valencia on either side of him, he said to him, "Have you not gone away yet?" and, "I will make you go," or words to that effect; that the deceased came toward him and struck him, and that other parties who were with the deceased attacked him, knocked him down, and beat him very badly. He admitted that he fired one shot, and that he shot at the deceased. He said he heard other shots, but did not know who fired them. He claimed that he fired the shots because he was attacked by the deceased and other parties, and he was afraid they would do him bodily injury. He did not testify that he saw any weapons in the hands of the deceased, or that the deceased attempted to use any weapons upon him. He testified that a man by the name of Romualdo Ruis was standing there, and called to the parties meeting him to stop, that they would kill him, and that Ruis lifted him up from the ground and took him away. Ruis was afterwards put on the stand in rebuttal, and positively denied all of the statements of the appellant in his testimony as to his making the statement claimed, or having seen any parties beating him, or helping to lift him up and take him away. One or two other witnesses claimed to have seen a fight, and that the deceased had struck the appellant first. In rebuttal, certain testimony was given, contradicting some of the statements of the witnesses for the appellant. At the conclusion of the testimony, the arguments of the counsel, and the instructions of the court, the jury returned a verdict, in which they found the appellant guilty of murder in the second degree.
O. A. Larrazolo, for appellant.
Edward L. Bartlett, Sol. Gen., for the Territory.
McFIE, J. (after stating the facts).
The first assignment is that the court erred in refusing to grant the appellant a change of venue. A motion for change of venue was made by counsel for the appellant in the court below supported by an affidavit of the appellant, setting up substantially that the appellant could not have a fair trial, because of the prejudice of the inhabitants of the county of San Miguel against him, and for that reason a fair and impartial jury could not be obtained in the county of San Miguel, and that the same objection existed as to the counties of Mora and Guadalupe. This affidavit was supported by two citizens of San Miguel county, Amador Ulibarri and Guadalupe Lopez. The court required the supporting witnesses to be examined under oath as to their knowledge and interest, so as to enable the court to determine the sufficiency of the affidavit. This examination disclosed the fact that the supporting witnesses knew nothing about any prejudice existing...
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