Territory v. Lobato.

• Decision Date: 09 May 1913
• Citation: 134 P. 222,17 N.M. 666
• Parties: TERRITORYv.LOBATO.
• Court: New Mexico Supreme Court

17 N.M. 666

134 P. 222

TERRITORY

v.LOBATO.

Supreme Court of New Mexico.

May 9, 1913.On Motion for Rehearing, July 21, 1913.

Syllabus by the Court.

An indictment for murder in the first degree, in other respects sufficient, which concludes in the following language: “Did strike and beat the said Juan Trujillo, giving to him, the said Juan Trujillo, in and upon the top of the head of him, the said Juan Trujillo, one mortal contusion, bruise, fracture, and wound, of which said mortal wound the said Juan Trujillo thence continually languished until, on the 30th day of December, A. D. 1909, between the hours of 2 and 3 o'clock in the morning of said day, he there died”––charges that the deceased died of the mortal wound alleged to have been inflicted by the defendant.

The common law, adopted by statute in this state as the rule of practice and decision in criminal cases, requires the defense of former jeopardy to be specially pleaded, and such defense is not admissible under the general issue. Held, where such defense is not so pleaded, it cannot be raised by motion, upon the conclusion of the state's case, for an instructed verdict.

The record in this case shows that a valid jury was impaneled to try defendant.

The granting or denying of a motion for continuance is within the discretion of the trial court, and unless such discretion has been abused, to the injury of the defendant, the denial of such motion will not constitute error.

It is not an abuse of discretion by the trial court to refuse to grant a continuance, where the only ground stated in the application is the absence of counsel for defendant in an adjoining county, attending court.

Where instructions given by the court in a criminal case are objectionable to the defendant, he must call the court's attention to the claimed error in such instructions, prior to or at the time they are given, so that the court may have an opportunity to correct the alleged error; and objections filed in the clerk's office to instructions two days after the trial and verdict will not be considered.

The same rule applies to requested instructions which the court refuses to give. It is the duty of the defendant, if he intends to predicate error upon such refusal, to except to the action of the court, at the time, in refusing to give such instructions.

In cases of homicide, it is permissible to allow the defendant to show the general reputation of the deceased as to being a lawless and violent character; but specific acts of violence on the part of the deceased may not be shown.

The trial court properly admitted in evidence a portion of the skull of the deceased, showing the character of one of the claimed mortal wounds alleged to have been inflicted by the defendant.

Defendant cannot predicate error upon the action of the court in permitting the sheriff, who arrested defendant, to testify to an alleged conversation had with defendant, where there was no showing that such statement was made under duress, threats, or promises.

Additional Syllabus by Editorial Staff.

The question of former jeopardy may be raised, where the facts upon which it is based appear in the record of the same case, by a plea in bar, or by a motion of the defendant, or by objecting to entering upon the second trial, upon such ground, or in any other appropriate manner in which the matter is called to the attention of the trial court; but such question must be raised at the first opportunity.

Appeal from District Court, Taos County; before Justice E. C. Mechem.

Benito Lobato was convicted of voluntary manslaughter, and appeals. Affirmed, and rehearing denied.

An indictment was returned against the appellant, by the grand jury of Taos county, charging him with the crime of murder in the first degree. He was tried, found guilty of voluntary manslaughter, and by the court sentenced to a term of not less than seven nor more than ten years in the territorial penitentiary. From such judgment this appeal is prosecuted.

The record in this case shows that a valid jury was empaneled to try defendant.

Catron & Catron, of Santa Fé, for appellant.

Frank W. Clancy, Atty. Gen., and H. S. Clancy, Asst. Atty. Gen., for the Territory.

ROBERTS, C. J.

Appellant relies upon six grounds of error for a reversal of this cause, which we will discuss in the order presented.

[1] The first contention urged is that the court erred in overruling the demurrer to the indictment. Several grounds of demurrer were stated, but appellant here urges for consideration only the following: “Said indictment does not charge that deceased died of the mortal wounds alleged to have been inflicted by the defendant.” The same objection was also raised by motion in arrest of judgment. That portion of the indictment necessary to be set out in order that the ground of objection may be intelligently understood, reads as follows: “Did strike and beat the said Juan Trujillo, giving to him, the said Juan Trujillo, in and upon the top of the head of him, the said Juan Trujillo, one mortal contusion, bruise, fracture, and wound, of which said mortal wound the said Juan Trujillo thence continually languished until, on the 30th day of December, A. D. 1909, between the hours of 2 and 3 o'clock in the morning of said day, he there died.”

We do not believe the language used in the indictment and quoted above, by any rule of construction, justifies the assertion that it does not charge that the deceased died of the mortal wounds inflicted by the defendant. Briefly stated, and stripped of legal verbiage, the indictment charged that Trujillo was given a mortal wound by the defendant, “of which mortal wound” the said Trujillo “there died.” It is true the indictment alleges, after using the language “of which said mortal wound,” that “the said Juan Trujillo continually languished until, on the 30th day of December, A. D. 1909, between the hours of 2 and 3 o'clock in the morning of said day,” and that such language intervenes between the words “of which said mortal wounds” and “he there died”; still it is all a part of one sentence, and such language simply relates what occurred between the infliction of the wounds and the death. The charge is that he died of the mortal wounds so received, and the recital is made that of the mortal wounds so received he languished, followed by a statement of the time of his death. The charge is all part of one sentence, separated only by commas, and only by a strained construction can appellant's contention be sustained.

In the preparation of this indictment the district attorney did not follow the usual approved form, and such practice is not to be commended. Such officials, by the exercise of ordinary care and prudence in drafting indictments, can avoid all question as to the sufficiency thereof. While innovations are unwise, the antagonism to them that will preclude the use of equivalent expressions would be even more pernicious. Borrego v. Territory, 8 N. M. 446, 46 Pac. 349. Appellant has cited us to the following cases, which he insists hold such an indictment defective: State v. Blan, 69 Mo. 317; State v. Sundheimer, 93 Mo. 311, 6 S. W. 52; People v. Jacinto Aro, 6 Cal. 208; People v. Wallace, 9 Cal. 31; Edmondson v. State, 41 Tex. 496. An examination of the cases, however, will show that the language used in the indictments therein under consideration was altogether different from that used in the one now before the court.

On the other hand, the Attorney General has called our attention to the case of Lutz v. Commonwealth, 29 Pa. 441, where the charge that death resulted from the wounds inflicted was not nearly so positive or direct as in the indictment in this case, and the same was upheld by that court. In the Pennsylvania case the language was as follows: “One mortal wound, of the length of one inch and the depth of six inches, of which said mortal wound he, the said Richard O'Leary, from the said 27th day of June, in the year aforesaid, at the county aforesaid, until the 28th day of the same month of June, in the year aforesaid, at the county aforesaid, did languish, and languishing did live, on which said 28th day of June, in the year aforesaid, the said Richard O'Leary, in the county aforesaid, died.” Speaking of this language, the court there say: “The rule undoubtedly is that an indictment for murder must expressly show that the party died of the hurt specially described and set forth; but in construing indictments we are not, whilst avoiding intendments against the life of the prisoner, to fall into such extreme astutia as shall ignore the force and meaning of language.”

The holding of the Pennsylvania court was approved by the Supreme Court of Illinois in the case of Palmer v. People, 138 Ill. 356, 28 N. E. 130, 32 Am. St. Rep. 146. The court say: “The mortal wound was given one day, and the deceased languished or grew weaker until the next day, and died. It is clear that he died of the mortal wound given, of which he languished to death. The respective dates of the stroke and of the death are sufficiently stated. Lutz v. Commonwealth, 29 Pa. 441; 2 Bishop, Crim. Proc. § 528; Bishop's Directions and Forms, § 520; State v. Conley, 39 Me. 78; State v. Haney, 67 N. C. 467; 9 A. & E. Enc. Law, 636.”

In the case of Tickle v. State, 6 Tex. App. 623, an indictment of similar phraseology was held sufficient. The court say: “The indictment alleges that the defendant, on the 5th day of March, 1876, in the county of Navarro and state of Texas, inflicted upon James Shields a mortal wound, ‘of which mortal wound he, the said James Shields, then and there languished, and afterwards, to wit, on the 10th day of March, 1876, languishing, died.’ This we think sufficiently charges that the death of Shields proceeded from the wounds.” See, also, U. S. v. Ball, 163 U. S. 662, 16 Sup. Ct. 1192, 41 L. Ed. 300.

For the reasons stated, we are of the opinion that the demurrer to the indictment was properly...