Territory v. Lermo.
| Decision Date | 01 September 1896 |
| Citation | 8 N.M. 566,46 P. 16 |
| Parties | TERRITORYv.LERMO. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Eddy county; before Justice G. D. Bants.
The defendant, Agustin Lermo, was indicted, tried, and convicted of murder in the first degree, at the November, 1895, term of the district court for the county of Eddy, in this territory, on the charge of having on the 9th day of May, 1894, shot and killed Assad Toma. After motions for a new trial and in arrest of judgment had been heard by the court and denied, the defendant was sentenced to be executed in the manner prescribed by the law, from which rulings of the court an appeal was prayed and granted, and the case is here for determination on the alleged errors in the court below. Reversed.
Under Laws 1889, p. 26, § 24, providing that no defendant shall be required to exercise any peremptory challenge as to any particular juror until the prosecution shall have finally passed upon and accepted such juror, it is reversible error, when less than 12 jurors are in the box, and the regular panel becomes exhausted, to compel defendant to pass peremptorily on such jurors before a special venire is issued.
A. A. Freeman and A. S. Bateman, for appellant.
John P. Victory, Sol. Gen., for the Territory.
The record discloses that all the facts in this case, upon which appellant was convicted, were purely circumstantial. It appears that the body of the deceased, Assad Toma, was found, some seven or eight hours after the supposed time of the homicide, in the bed or channel of the Delaware river,-which at the time was dry,-with a coat and some weeds thrown over it, with a gunshot wound in the head, and one in the body and one in the arm, with indications on the ground that deceased had been killed at the wayside, and the body dragged some distance from the place of the killing, and there partially concealed. Some 10 days after the homicide, defendant was arrested in the state of Texas, and a watch identified as the property of the deceased found in his possession; and also some articles of jewelry, concealed on the inside of the vest of the defendant, and a number of other articles such as are usually sold by peddlers, were also found in defendant's possession at the time of the arrest. It also further appears that the deceased was an Assyrian peddler, and was seen in the neighborhood of the place of the homicide, plying his trade, the morning of the day that the body was found,-in the afternoon, about 3 or 4 o'clock. The defendant did not testify, nor did any witness testify in his behalf. The testimony upon which defendant was found guilty of murder in the first degree was purely circumstantial, as there was no eyewitness to the homicide. Nor was the defendant seen in the neighborhood of the place where the killing occurred, at or near the time when it is supposed to have taken place. The possession of deceased's watch by the defendant and his flight, both of which facts were unexplained by the defendant, were the most damaging, and in fact almost all the testimony in the record which authorized a conviction in the case.
On page 3 of what purports to be the bill of exceptions we find this entry: And on page 7 of what seems to be the record, inter alia, we find this: “And, both parties announcing themselves ready for trial, the following named members of the petit jury are duly drawn, accepted, and impaneled to serve as jurors for the trial of the issues joined in this cause pending, to wit: A. J. Allen, W. L. Webster, J. S. Crozier, John Ruark, A. J. Froman, J. C. Anderson,”-thus leaving only six jurors in the box when the special venire was ordered. Then follows an order for drawing and serving a special venire. But there is no mention of this error-for such it is-in the motion for a new trial; and it was not called to the attention of the trial court, and he was given no opportunity to correct his rulings on this exception,-the very purpose for which a motion for a new trial is made and intended. People v. Phipps, 39 Cal. 326.
The error above referred to is assigned as the second error in appellant's brief, and authorities cited in support thereof. The language of the statute on that subject is as follows: Laws...
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