Territory v. Pridemore.

• Decision Date: 29 January 1887
• Citation: 4 N.M. 275,13 P. 96
• Parties: TERRITORYv.PRIDEMORE.
• Court: New Mexico Supreme Court

4 N.M. 275

13 P. 96

TERRITORY

v.PRIDEMORE.

Supreme Court of the Territory of New Mexico.

January 29, 1887.

Appeal from district court, San Miguel county.

Where the judge, in charging the jury, gives them a definition of murder in the fourth degree, and instructs them, by inadvertence, that such facts constitute murder in the third degree, and the jury so find, there being insufficient evidence to support a verdict of murder in the third degree, the judgment on such verdict will be reversed on appeal for the error in the charge, notwithstanding a correct definition of murder in the fourth degree, with the penalty, given in a subsequent part of the charge.

Wm. Breeden, Atty. Gen., for appellee.

Fiske & Warren, for defendant.

HENDERSON, J.

Appellant, Thomas Pridemore, was indicted for the murder of Robert S. Cochran, by the grand jury of San Miguel county. He was tried, and convicted of murder in the third degree, and his punishment fixed at nine years in the penitentiary. Numerous exceptions were taken during the progress of the trial, and properly saved by bill of exceptions.

Defendant moved for a new trial and in arrest of judgment. These motions were overruled, and the case brought here by appeal.

The facts may be stated, in general terms, as follows: On the evening of the twenty-fourth day of December, 1885, appellant, Pridemore, the witnesses Green, Coleman, Swearinger, deceased, (Cochran,) and one De Graftenried were on their way in a small wagon on the public highway to a dance in San Miguel county. Pridemore, Swearinger, and De Graftenried were on a seat in the front of the wagon; Cochran towards the hind end, sitting on the bed of the wagon; while Coleman and Green were in the back end. Green had his feet on the outside, hanging over the rear end of the wagon. Appellant was on the right side, and was driving the team. It was about 8 o'clock, and the night rather dark. All the men were drinking more or less. Coleman says he was drunk. Green had been drinking rather freely. At a point on the road, about an hour before the difficulty took place, Green had shot at a dog following a Mexican family passing in the opposite direction. At this, Pridemore, who seems to have been in charge of the party, and over whom he had control under their employment on the Lynch ranch, spoke to Green, saying “that if he didn't behave he would have to get out and walk.” Just before the shooting took place, Green asked De Graftenried to give him a drink. There was a jug in the forepart of the wagon, in reach of De Graftenried, but at the request of appellant he declined to comply with the request. The request was repeated, but again denied, at which Green seems to have become angered, and replied in very indecent and offensive language. At this time appellant made some remarks to Green, but exactly what he did say the witnesses are not agreed. Either immediately after, or while appellant was addressing these remarks to Green, the firing began. Green says they (himself and appellant) fired at the same time. The shooting was kept up until four, five, or six shots in all were fired. Green says that the deceased was leaning against his back, facing to the front, while he was facing to the rear of the wagon. Coleman says the deceased was sitting on the bottom of the wagon, near the middle of the bed, facing to the front when the shooting began. Two shots fired by Green took effect,-one in the face, and the other in the back of the neck or head, of Pridemore. Swearinger testified that there were two bullet holes through the seat on which appellant, witness Swearinger, and De Graftenried sat. This accounts for four shots from the rear end of the wagon. Green swears he fired but three shots,-two in the wagon, and one on the ground, after getting out. He also swears that he was shot once through his hat, and another in his coat-sleeve. This makes six shots. The shot that killed Cochran, this witness says, could not have been either of those passing through his hat or coat. It is certain that Cochran was killed by a pistol shot fired at that time. The deceased was directly between Green and appellant, according to Green's own statement, when he fired the last shot from the road; that is, deceased was in the bed of the wagon, between Pridemore and witness Green. Green says deceased undertook to get up when he fired the first shot, and that after that time he took no notice of him, for the reason that he had other business to attend to in watching the movements of appellant. Coleman says deceased was in the wagon when De Graftenried halted the team, and was wounded. Whether deceased was shot from the front or rear does not clearly...