Territory v. Lopez

• Citation: 3 N.M. 156, 2 P. 364
• Case Date: January 31, 1884
• Court: Supreme Court of New Mexico

3 N.M. 156
2 P. 364

TERRITORY
v.
LOPEZ and another.

Supreme Court of the Territory of New Mexico.

January Term, 1884.

Technically, upon the trial of a juror for general or absolute disqualification under the statute, and expressly for bias, the challenge should be first interposed and the evidence introduced afterwards; but where, upon a voir dire, it appears that the juror is not the head of a family, a challenge therefor may be disposed of upon the evidence already received.

The term “head of a family” considered and defined.

It is irregular and improper for the court, in the absence of the defendant or his attorney, to receive the jury after they have once retired, or hold any communication with them in regard to the case submitted. The giving of instructions is a part of the trial, and a very important part, and in felonies it is not the province of the prisoner, by himself or by his attorney, to waive the right to be personally present.

It is error to instruct the jury that “they must determine the fact according as they would determine any fact in their own private affairs,” the rule being that the evidence must satisfy to the exclusion of every reasonable doubt.

Oral instructions, in whole or in part, are erroneous; they must be entirely in writing.

Technically, on the trial of a juror for general or absolute disqualification under the statute, the challenge should be first interposed, and the evidence introduced afterwards; but where, on a voir dire, it appears that the juror is not the head of a family, a challenge therefor may be disposed of on the evidence already received.

[2 P. 364] William Breeden, Atty. Gen., for the Territory.

Catron, Thornton & Clancy, for appellants.

BRISTOL, J.

The defendants below, Crecencio Lopez and Manuel Casias, who are appellants here, were jointly indicted for cattle stealing in the district court for the first judicial district and county of Colfax, and convicted and sentenced to five years imprisonment in the territorial prison. A large number of errors are assigned on behalf of the appellants; only a few of which do we deem it necessary to notice. Two of these errors are that the court below abused its discretion in severally overruling motions for a change of venue and for a continuance. Upon a careful examination of the whole record, including the affidavits on which such motions were made, and the evidence disclosed on the trial, and especially the evidence of the defendants themselves, we cannot conceive how the defendants could have acquired any advantage by a change of venue or a continuance, except the possible opportunity that might arise for them to escape or for the evidence to be suppressed by the death or absence of witnesses.[2 P. 365] Under the circumstances, there was no abuse of discretion in overruling the motions for a change of venue and for a continuance.

Another error assigned is that the court below erred in overruling challenge to the juror John Carico on the trial thereof, the ground of the challenge being that he was not the head of a family. Our statute specifies as one of the necessary qualifications of every juror, grand or petit, that he must be the head of a family. If not the head of a family he is absolutely disqualified as a juror; and if challenged on that ground, and on the trial thereof it is conclusively shown by the evidence that he is not the head of a family, it would be error on the part of the court to allow the juror to remain on the trial panel, however worthy he may be in character and in other qualifications required by law. As to this assignment of error, the record discloses the following facts: “That one John Carico was called as a juror in said cause, who also being duly sworn the truth to speak as to his qualifications as a juror in said cause, did then and there under oath say to the court that he was not the head of a family; that he was not a married man; that he had no children; that he and his partner kept a mess and house, at which he, his partner and employees ate and lived; that he, his partner, and their employees were all adults, and that no other persons ate or lived with them. Therefore the said defendants, through their attorneys, challenged and objected to said Carico as a juror in said cause for the reason that he was not a qualified juror according to law to try said cause, he not being the head of a family; but the court then and there rendered its judgment and decision overruling said challenged and objection, and directed and ordered said Carico to be sworn as a juror to try said cause.”

As presented by the record it would seem that no evidence was taken after the challenge had been interposed, but that the court disposed of the same on the evidence received in the previous examination of this juror as to his general qualifications. Our statues do not specially prescribe the manner in which a challenge to an individual petit juror shall be tried. But they do provide that the necessary qualifications of grand and petit jurors shall be the same; and they further provide how a challenge to an individual grand juror shall be tried, when the ground of challenge is that he is a minor, or that he is an alien, or that he is insane, or that he is the prosecutor upon a charge against the defendant, or that he is a witness on the part of prosecution, or that such a state of mind exists on his part in reference to...