Territory v. Pettine.

• Decision Date: 01 February 1911
• Citation: 16 N.M. 40,113 P. 843
• Parties: TERRITORYv.PETTINE.
• Court: New Mexico Supreme Court

16 N.M. 40

113 P. 843

TERRITORY

v.PETTINE.

Supreme Court of the Territory of New Mexico.

Feb. 1, 1911.On Motion for Rehearing, Feb. 11, 1911.

Appeal from District Court, Bernalillo County; before Justice Ira A. Abbott.

Antimo Pettine was convicted of murder in the second degree, and he appeals. Affirmed.

Where the court in its instructions defined murder, express and implied malice, murder in the first degree, deliberation and premeditation as relating to murder in the first degree, and justifiable homicide, and defined murder in the second degree, and to none of the instructions were any exceptions taken, except the general exception that accused excepted to the giving of the instructions, and to each and every one of them, and accused in the motion for new trial did not point out the error complained of as to any of the instructions, errors as to the instructions defining murder in the second degree were not reviewable.

The defendant, Antimo Pettine, was indicted for the crime of murder by the grand jury of Bernalillo county, the indictment alleging, in the usual form, that on the 4th day of February, 1907, the defendant killed and murdered Benedito Berardinelli. To this indictment defendant pleaded “not guilty,” and was tried before a jury in November, 1908. The jury returned a verdict finding the defendant guilty of murder in the second degree. The court gave 17 paragraphs of instructions to the jury, to the giving of which instructions (at the conclusion of the same) the defendant excepted in the following language: “To the giving of said instructions, and each and every one of them, and each paragraph thereof, the defendant then and there excepted.” The defendant also moved the court to instruct the jury in instructions contained in 19 different paragraphs, all of which requested instructions were refused by the court, except in so far as they were included in the instructions actually given by the court. “To the judgment and decision of the court in overruling said motion and refusing to give said instructions, or any one or any part thereof as prayed for, the said defendant then and there objected and excepted.” After trial and verdict the appellant filed his motion for a new trial, setting up seven grounds of error. The first and second grounds of error relate to the admission and rejection of evidence, but the evidence is not set out, and these two objections are not urged upon appeal. The third, fourth, and sixth grounds of error in the motion for new trial were as follows: “(3) The court gave the jury illegal, wrongful, improper, and misleading instructions in said cause, on the trial thereof, which were not asked for by the defendant, and which were objected to by the defendant at the time and exceptions taken to the overruling of the objection. (4) The court refused to give the jury legal, proper, and pertinent and material instructions, which were asked for by the defendant on the trial of said cause, to which refusal the defendant then and there excepted.”“(6) The court did not instruct what were the essential elements of murder in the second degree, or what the jury must believe to find the defendant guilty from the evidence.” The fifth ground of error related to the testimony of the witness Campagnoli. It appears from said assignment of error that Campagnoli made an affidavit, which is attached to the motion for new trial, to the effect that certain testimony given by him upon the trial was false, and it is alleged that such false testimony influenced the verdict of the jury. The seventh and last assignment of error in the motion for a new trial is merely the general saving assignment added to all motions for new trial, and need not be considered upon this appeal. The motion for a new trial was overruled, to which ruling of the court the defendant duly excepted.

Thomas B. Catron, for appellant. Frank W. Clancy, Atty. Gen., for the Territory.

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

The first ground of error considered by appellant in his brief is the one referred to in the statement of facts as the fifth ground of error, and relates to the testimony of the witness Campagnoli. Upon the trial of the case the witness Campagnoli testified that the defendant, Antimo Pettine, came to his shop about three months after the death of the deceased, Berardinelli, and that upon entering the shoeshop said to him (Campagnoli) that he had killed Benedito Berardinelli, and that if he had a chance he intended to kill Ceaser Grande and Charlie Grande, or words to that effect. In the affidavit filed in support of the motion for new trial, the witness Campagnoli sets out that on this occasion, when he had the conversation in his shoeshop, he had never before seen the party who made this statement; that at the time he did not know the defendant, Pettine, but he supposed it was Pettine; that at that time he, affiant, was intoxicated, so that he could not clearly see the man to distinguish who he was; that after the trial was over, while he was on the train returning to Santa Fé, he met the defendant, Pettine, and that he then for the first time knew and understood that Pettine was not the man who had come into his shop and made the statements as testified to by him at the trial, but such person was some man unknown to affiant. This assignment of error, if raised at all, is here upon the exception to the order overruling the motion for new trial.

The ordinary function of a motion for new trial is to call the attention of the trial court to errors committed on the trial, and thus preserve the questions for review in the higher court. Included therein are both errors of law and errors of fact, or of matters within the discretion of the trial court. With reference to matters in the motion addressed to the sound discretion of the court, this court, in the case of the Territory v. Emilio, 14 N. M. 147, 89 Pac. 239, has laid down the rule that the order overruling the motion for new trial is not reviewable. In the case cited, supra, Mr. Justice Parker collected and discussed practically all of the cases decided by this court bearing upon that point. If the rule laid down in the Emilio Case is to be considered as controlling, no further discussion of this assignment is necessary.

In the case of Territory v. Emilio, cited supra, the question considered related to the disqualification of a juror, and it was held in that case that such matters were addressed wholly to the discretion of the trial court, and while this case seems to lay down the broad general proposition that the appellate court cannot under any circumstances review, upon appeal, matters wholly within the discretion of the trial court, we will, in view of the fact that counsel have considered this assignment with reference to the rule laid down in the case of United States v. Biena, 8 N. M. 105, 42 Pac. 70, consider the case at bar in the light of the rule so laid down. In the Biena Case this court laid down the rule that this court will not review upon appeal assignments of error based upon the discretion of the lower court in overruling a motion for new trial, unless gross abuse of such discretion appears on the face of the record. In that case the court uses the following language: “A trial judge is frequently called upon to rule on matters and material facts which he sees transacted before him, and of which he must take notice as substantial things in the case, but do not and cannot become a part of the record, and which the appellate court can have no knowledge of; and an appellate court should labor to affirm the findings of a jury, when it shall appear from the whole record that the trial court proceeded in the regular and orderly manner prescribed by law, and that the result arrived at by the jury was fair and substantial justice to all parties. The granting or refusing a new trial is a matter resting in the sound discretion of the trial judge to whom it is addressed, and it is not reversible, unless it shall plainly appear that such discretion has been grossly abused, and that does not here appear.”

Admitting the power of this court, for the sake of argument, to review the discretion of the trial court in refusing to grant a new trial, there was no abuse of discretion in the case at bar. An examination of the record shows that there was ample evidence to warrant a conviction, eliminating the testimony of Campagnoli entirely. The trial court, seeing the witness and his manner of testifying upon the stand, may well have taken the position that Campagnoli was not worthy of belief, and that his testimony could not, under any circumstances, have affected the verdict of the jury. In fact, the trial court may well have considered that his testimony was favorable to the defendant, rather than adverse. Such being the record in this case, it is not incumbent upon the court, at this time, to determine whether the case at bar should be said to be within the rule laid down in the case of Territory v. Emilio or the case of United States v. Biena, cited supra, as under either view of the rule the assignment of error is not well taken.

2. The second assignment of error discussed by the appellant relates to alleged error in the forth instruction given by the court. The fourth instruction so given by the court is as follows: “Murder in the second degree is ‘all murder which shall be perpetrated by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or which shall be perpetrated unnecessarily, either while resisting an attempt by the person killed to commit any offense against person or property or after such attempt shall have failed. The absence of deliberate premeditated design is what chiefly distinguishes it from murder in the first degree.”’ This instruction is based upon the statute as it existed prior to the amendment of 1907. An examination of the...