Territory v. Mcginnis.

• Decision Date: 03 May 1900
• Citation: 10 N.M. 269,61 P. 208
• Parties: TERRITORYv.McGINNIS.
• Court: New Mexico Supreme Court

10 N.M. 269

61 P. 208

TERRITORY

v.McGINNIS.

Supreme Court of the Territory of New Mexico.

May 3, 1900.

Syllabus by the Court.

1. Section 9, c. 66, Laws 1899, prescribes the manner in which talesmen shall be selected, and repeals section 941 of the Compiled Laws of 1897.

2. One who upon the evidence is found to be guilty of murder, as a principal in the second degree, may be convicted under an indictment charging him as principal.

3. An indictment sufficiently charging murder in the first degree will support a conviction of murder in the second degree.

4. Where there is a question whether an act was done by any person, any fact which supplies a motive for such an act is deemed to be relevant, and this is true although it may tend to show the accused guilty of another offense than the one charged.

5. Where, upon a trial for murder, it appeared that the defendant, when the crime was committed, was in company with other persons, and the evidence left in doubt whether the fatal shot was fired by the defendant or by any one of his companions, the testimony for the prosecution tending to prove, however, that the defendant participated with his companions in the resistance of arrest which resulted in the homicide; and where there was evidence tending to prove that the defendant and the other persons had, prior to the time of the homicide, acted in consort as conspirators in the commission of a felonious assault upon, and robbery of, a railroad train, and had thereafter been for several days associated in a common endeavor to escape apprehension by flight,— held, that instructions by the court to the effect that if the jury believed the defendant to be a party to a conspiracy or common design to make violent opposition to arrest, and that in the carrying out of such conspiracy or common design the homicide in question was perpetrated by one the defendant guilty, as if he himself had fired the fatal shot, and that, if the jury believed the evidence as to the train robbery, they were to consider it as a fact tending to show that a felony had been committed, and that there was probable cause to believe that the defendant had taken part in such felony, and as evidence tending to show the motives of the different parties at the time of the crime was committed, were proper and unobjectionable.

6. An instruction that an “assault upon a railroad train (that is, what is known as ‘holding up’ such train)” is a felony, under the laws of the territory, held, under the circumstances of this case, to be correct and unobjectionable.

7. The arrest of a felon may be justified, by any person, without warrant, if a felony has in fact been committed, and an instruction laying down a contrary rule of law was properly refused.

8. One who is about to arrest a felon need give only such notice of his intention as could be expected, under all the circumstances of the case, of one governed by reason, good faith, and honest purpose. The question whether this rule of conduct was observed in any particular instance is a mixed question of law and fact, to be determined ultimately by the jury, under proper instructions from the court.

9. One who is a party to a criminal conspiracy, the direct result of which is a murder perpetrated by one of his co–conspirators, and who is actually present, assisting to the extent of his ability in the accomplishment of a common design, is himself guilty of murder, as principal, in the second degree; the extent and effectiveness of the assistance rendered by him being immaterial.

10. An instruction defining murder in the second degree, though omitting therefrom any reference to the element of malice, is not erroneous, where the court it its charge had theretofore specifically instructed the jury that all murder was the unlawful killing of a human being, with malice aforethought, either express or implied.

11. Remarks by the court to the jury that, if they should not find a verdict by 8 o'clock in the morning of the next day (Sunday), they would have to remain in their jury room until Monday morning (the court expecting to be absent from 8 o'clock Sunday morning until Monday morning), were not a coercion of the jury or prejudicial to the defendant, in view of the state of the testimony, and the length of the time the jury deliberated in this case.

Appeal from district court, Colfax county; before Chief Justice William J. Mills.

William H. McGinnis was convicted of murder in the second degree, and appeals. Affirmed.

Laws 1899, c. 66, § 9, prescribing the manner in which talesmen shall be selected, repeals Comp.Laws 1897, § 941, providing for the filling of vacancies in the regular panel of the grand and petit juries.

Edwin B. Franks and Andrieus A. Jones, for appellant.

Edward L. Bartlett, Sol. Gen., for the Territory.

CRUMPACKER, J.

On September 19, 1899, in the district court of the Fourth judicial district of the territory of New Mexico, within and for the county of Colfax, the defendant, William H. McGinnis, was indicted for the murder of one Edward Farr. On September 21, 1899, the defendant was arraigned, and pleaded not guilty. The defendant filed a motion for a continuance, which was overruled. On October 2, 1899, the cause came on for trial, and on October 7th the jury returned a verdict of murder in the second degree against the defendant. He was sentenced to the penitentiary for life. Thereafter the defendant filed a motion in arrest of judgment and a motion for a new trial, which were overruled. Judgment was entered against defendant, where–upon he took an appeal to this court. The record discloses the following important facts in the case: That on July 16, 1899, a posse of seven members, organized by the United States marshal for the district of New Mexico under telegraphic direction from the attorney general of the United States, while in pursuit and upon the trail of a band of felons, known to be three or more in number, who on the night of the 11th of July, 1899, held up and robbed of expressage a passenger train carrying the United States mail on the Colorado Southern System of Railway in New Mexico, suddenly, in a secluded and rugged place in the mountains of Colfax county, N. M., came upon the objects of their search. That one of the felons was believed to be a notorious desperado, named Sam Ketcham, for whom the United States marshal held a warrant charging him with a violation of the postal laws theretofore committed. The testimony of the witnesses for the prosecution tended to prove that the designated leader of the posse, Wilson Elliott, being the first to see the defendant McGinnis, called upon him, in a tone of voice which he believed loud enough to be heard by defendant from a distance of about 50 yards, to surrender; that thereupon the defendant, who was in motion, instantly stopped and raised to his shoulder what Elliott believed to be a gun; and that instantly thereupon shots were exchanged simultaneously between other members of the posse and the defendant and those with him. This the defendant denied, testifying that he was at the time on his way from the camp to a spring of water a few yards distant, for a pail of water, and unarmed. The evidence is conflicting upon the question from which side the report of the first shot came, but it is clear from the testimony of all the witnesses for the prosecution that the first report of the rifles from the opposing parties came so close together as to be almost indistinguishable. At the first firing the defendant fell wounded. Shots continued to be rapidly exchanged between the posse and the defendant's associates for about 10 minutes. The effect of the shots from the felons was the shooting of Edward Farr through the heart, causing his instant death, and the wounding of two other members of the posse; and the effect of the shots from the posse was the mortal wounding of Sam Ketcham and the wounding of defendant. The shooting having ceased, both parties retired,—the posse to care for their wounded; and the defendant, with his confederates, to make good their escape. The continued vigilance of the authorities, however, resulted in the apprehension of the defendant on the 16th of August, 1899, by the sheriff of Eddy county, N. M., who, with his posse, came upon the defendant at a point in Southeastern New Mexico some 300 miles from the place where Farr was killed. The defendant then again offered most strenuous resistance to arrest by the officers; wounding, by shooting, one of that posse, and also an old man whom he suspected of having betrayed his whereabouts to the authorities. The prosecution in the course of the trial also proved, besides other material facts, the whereabouts of the defendant and his confederates a few days prior to the assault upon the train, their sudden disappearance, and their presence next near the scene of the assault and robbery early on the night of the hold–up; identified the defendant and his dead confederate, Sam Ketcham, as two of the men engaged in that assault; established the flight of the defendant and his confederate from the scene of the assault, and the fact that within a few hours thereafter the authorities were in pursuit and upon their trail, which pursuit, with some interruptions and delays, caused by the weather and formally organizing the marshal's posse, was continued down to the time of the fatal encounter in the mountains. The first incriminating evidence found was the torn letter addressed to Franks, one of the bandits, discovered early on the day following the assault by Sheriff Titsworth at the place where the defendant and his confederates had been observed camped the day of the hold–up, in the vicinity of the scene of the assault; and at the mountain camp of the defendant and his confederates property was discovered which was identified as having been stolen from the car of the train which had been assaulted. The testimony as to what took place at the time of...