Territory v. Lynch.

• Decision Date: 31 May 1913
• Citation: 18 N.M. 15,133 P. 405
• Parties: TERRITORYv.LYNCH.
• Court: New Mexico Supreme Court

18 N.M. 15

133 P. 405

TERRITORY

v.LYNCH.

Supreme Court of New Mexico.

May 31, 1913.

Syllabus by the Court.

In the superintendence of the process of impaneling the jury, a large discretion is necessarily confided to the judge, which discretion will not be revised on error or appeal, unless it appears to have been grossly abused or exercised contrary to law.

Within reasonable limits, each party has a right to put pertinent questions to show, not only that there exists proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will exercise his right of peremptory challenge.

Where persons have authority to arrest, and are resisted and killed in the proper exercise of such authority, the homicide is “murder” in all who take part in such resistance.

Where the arrest is illegal, the offense is reduced to “manslaughter,” unless the proof shows express malice toward the deceased.

If the outrage of an attempted illegal arrest has not excited the passions, a killing will be murder.

Nothing short of an endeavor to destroy life or inflict great bodily harm will justify the taking of life in those cases where an illegal arrest is attempted.

As to the sufficiency of a “warrant,” it should appear on its face to have duly proceeded from an authorized source. It need not set out the crime with the fullness of an indictment, but it should contain a reasonable indication thereof.

A ministerial officer, acting under process fair on its face, issued from a tribunal or person having judicial powers, with apparent jurisdiction to issue such process, is justified in obeying it against all irregularities and illegalities except his own.

Where there is any evidence tending to show such a state of facts as may bring the homicide within the grade of manslaughter, defendant is entitled to an instruction on the law of manslaughter, and it is fatal error to refuse it.

Appeal from District Court, Chaves County; before Justice Roberts.

James O. Lynch was convicted of murder in the first degree, and he appeals. Reversed and remanded.

On the examination of jurors, each party may ask pertinent questions to enable him to decide whether he will exercise his right of peremptory challenge.

The appellant was indicted by a grand jury of the county of Chaves for the murder of Roy Woofter at the city of Roswell, in said county, and thereafter on change of venue was tried and convicted of murder in the first degree in the district court sitting for Eddy county. He now brings the case into this court by appeal.

From the record it appears that Woofter was the city marshal of the city of Roswell, and that in the afternoon of the 26th day of May, 1911, between the hours of 4 and 5 o'clock, he, accompanied by Henry and Ed. Carmichael, who were city policemen, encountered the defendant and one Fred Higgins in an alley of the city of Roswell, and there informed the defendant that he had a warrant for his arrest and for the search of defendant's house for the purpose of seizing any intoxicating liquor which might be found upon the premises, and handed the warrant to defendant, who examined the same; that the defendant told the deceased that he had no right to search his house for liquor, as the same was not a place of business; that the deceased then stated that the search was to be made, and, in company with the defendant, the two policemen, Fred Higgins, and one Red Tom, proceeded to the house of defendant; that defendant opened the front door of the house, and all six men entered the front room. Shortly after entering, the defendant passed out of the front room by a side door and into a hallway, fastening the door behind him, and the five men left in the room immediately went out of the front door, and the deceased, together with Henry Carmichael, went around the house on the porch thereof to a room which was used as a kitchen. In the meantime, according to the testimony of the defendant, having left the front room, he went into the kitchen, slipped off his shoes, and transferred three cases of whisky from the pantry into the dining room, and then sat down in the kitchen, and at about that time he saw the deceased pass the south window of the kitchen, walking in a westerly direction, and he next saw him when he appeared at the west window, when the deceased started to raise the screen of the window, and at the same time Henry Carmichael appeared at the south window “with his six-shooter in his hand and tried to look in.” The defendant jumped up close to the window at which the deceased was standing, and said, “Don't you break into this window or house,” or something like that, and the deceased “kind of stepped back and went for his gun like this, in a stooping position,” whereupon the defendant instantly shot him with a Winchester rifle; the bullet first passing through a curtain which was on the window and also the wire screen. The deceased, after receiving the shot, staggered away from the window in a stooping position with his hands clutching to his stomach, and was thereafter assisted by the two Carmichaels and Higgins to an adjacent house, where he was placed upon the bed and his pistol removed from a hip pocket. Subsequently Woofter was removed to a hospital, where he died the following morning, after making a dying declaration, which was introduced in evidence upon the trial of the case. In this declaration the deceased stated that he was walking along on the porch at the time he was shot, and that he could not see the defendant at the time the shot was fired; that immediately preceding the firing of the fatal shot the defendant said, “Keep off my back porch;” and that he knew that it was the defendant who used that language.

W. W. Gatewood, of Roswell, R. L. Graves, of El Paso, Tex., O. O. Askren, of Roswell, and A. B. Story, of San Antonio, Tex., for appellant.

F. W. Clancy, Atty. Gen., for the Territory.

HANNA, J. (after stating the facts as above).

The first nine errors assigned by appellant relate to the impaneling of the jury.

The first assignment predicates error, by the trial court, in sustaining a challenge for cause by the territory, over objection of the defense, to the venireman J. D. Merchant, on the grounds that there was insufficient proof to support the challenge, and that the defendant was not given an opportunity to examine said venireman.

The second assignment of error is based upon the alleged failure of the territory to specify grounds for challenge in the case of venireman Merchant, which was sustained by the court.

The third assignment avers a lacking of proof to support the territory's challenge in the case of venireman J. R. James.

The fourth assigns error in sustaining the territory's challenge in the case of venireman James, for an alleged failure to specify a ground for challenge.

The fifth error is predicated upon the trial court's action in overruling defendant's challenge for cause to venireman Gossett, who testified that he had a fixed and abiding opinion, predicated upon what he had read in the newspapers and conversations with different persons, which would require evidence to remove; later testifying, however, that if selected as a juror he would decide the case solely upon the sworn testimony, and not permit what he had heard to influence him in reaching a verdict.

The sixth error has to do with the trial court's action in overruling the challenge of the defendant for cause to venireman Schuester, who testified to an opinion arrived at through what he had heard one witness in the case say, which opinion was an abiding and fixed opinion requiring evidence to remove it. In response to questions by the court he said he would lay aside his opinion, when sworn as a juror, and would decide upon the evidence as introduced upon the witness stand.

The seventh error assigned by appellant is based upon the overruling of defendant's challenge, for cause, directed against venireman Galton. This venireman, upon his examination, testified that he had read newspaper accounts, shortly after the occurrence, from which he formed a decided opinion concerning the guilt or innocence of the defendant, requiring evidence to remove and which was then abiding with him; later he said he thought he could try the case with the same degree of equipoise of mind and impartiality as if he had never formed an opinion.

The eighth alleged error relied upon is based upon the overruling of defendant's peremptory challenge directed against venireman Crawford. The defendant had exhausted his quota of peremptory challenges, and asserts he was wrongfully forced to use a peremptory challenge in each of the cases referred to under assignments of error numbered 5, 6, and 7, and that it was an abuse of discretion, on the part of the trial court, to refuse to allow an additional peremptory challenge, good cause being shown.

The ninth assignment predicates error upon the refusal of the trial court to allow certain questions to be propounded to venireman Wm. Carson by the defense. The facts pertinent to this assignment of error can be more clearly pointed out by quoting from the record, viz.: “Q. I will ask you whether now you have any strong leaning for or against prohibition? Mr. Fullen: We object to that method of interrogating the juror, on the ground we don't believe a prohibition question enters into the trial of this case. The question is whether or not this man was justified in the kiling of the man he did. Mr. Gatewood: We would like to be heard on that. (Jury withdrawn.) Court: I will hear you ten minutes. Will your defense be self-defense? Mr. Gatewood: Yes, sir. Court: I will sustain the objection for that defense. The question of prohibition will not enter into it. Mr. Gatewood: Exception. (Jury returns.) I will ask you this question: That if in the course of this trial it should be developed by the testimony that the deceased, Roy Woofter, was a strong Prohibitionist, and ...