Territory v. Trapp.

• Decision Date: 22 December 1911
• Citation: 120 P. 702,16 N.M. 700
• Parties: TERRITORYv.TRAPP.
• Court: New Mexico Supreme Court

16 N.M. 700

120 P. 702

TERRITORY

v.TRAPP.

Supreme Court of the Territory of New Mexico.

Dec. 22, 1911.

Appeal from District Court, Lincoln County; before Justice Mechem.

Malcom Trapp was convicted of manslaughter, and he appeals. Affirmed.

Searches and seizures provided against in the Constitutional guarantee are those of the government or the states under state constitutions and are not the unlawful acts of individuals.

Gatewood & Graves, for appellant. Frank W. Clancy, Atty. Gen., for the Territory.

PARKER, J.

The appellant was indicted jointly with his father and brother for the murder of one Webb J. McAdams; the court excluding murder from the consideration of the jury, and submitting the sole question of the guilt or innocence of the defendants of voluntary manslaughter. It appears that the deceased was a constable, and, with one Davidson, whom he had asked to accompany him, went to the home of the Trapps, for the ostensible purpose of arresting the elder Trapp. The court held that the warrant in the possession of the deceased was illegal and conferred no rights on the deceased, and so instructed the jury. Upon arrival at the Trapp home, the deceased attempted to arrest the elder Trapp under the illegal warrant, and thereupon a mortal combat ensued, in which the deceased was shot and killed by the appellant. The account of the actual difficulty differs, naturally, as given by the prosecution and the defense. The prosecution showed that, as soon as the deceased attempted to arrest the elder Trapp, appellant presented a six-shooter at the side of his father and fired on deceased, wounding him in the abdomen, and instantly fired on deceased again, after he had fallen from the effects of the first shot. The defense showed that the deceased and said Davidson attacked the elder Trapp and fired at him, and that appellant, in defense of his father, shot the deceased. The father and brother were acquitted, and appellant convicted of voluntary manslaughter.

[1][2][3] 1. Appellant complains that there is no evidence to support the verdict. In the first place, it is to be observed that appellant in his eleventh and seventeenth requested instructions expressly asked the court to submit to the jury the question of the guilt or innocence of appellant and the other defendants of manslaughter. No motion was made at the close of the territory's case for an instruction by the appellant, nor was any made at any time during the trial. Under such circumstances, the error, if error it was, was invited by appellant, and he cannot be heard to complain here. But there was no error in submitting the issue to the jury. Following, as correct, the rule laid down in Territory v. Sais, 15 N. M. 171, 103 Pac. 980, cited by appellant, that a verdict will not be set aside when it is supported by substantial evidence we can see no force in the argument of appellant. He proceeds to argue that the circumstances attending the killing, previous threats of deceased, the circumstances of the attempted illegal arrest, the preponderance, in number at least, of the witnesses for the defense over the one for the prosecution, as to the actual killing, so overwhelmed the prosecution as to render it improper to allow the verdict to stand. All this was eminently proper to present by way of argument to the jury which tried the case, but it has no place here. That there was substantial evidence upon which to base the verdict seems apparent from the testimony of Davidson, who accompanied the deceased when he attempted to make the arrest, and when he was killed.

[4] 2. Appellant complains of the refusal of the court to withdraw from the jury an alleged harmful remark made by the court in ruling on the admission of evidence. It appears that the witness Davidson, who accompanied deceased, claimed to be a deputy sheriff, and, upon cross-examination, he was asked whether he bad exhibited, with his testimony at the preliminary examination of defendants, his commission as deputy sheriff. Objection was interposed by counsel for the territory, on the ground that the record of the preliminary examination was the best evidence. The objection was overruled, and the court then said: “He had a right to be there, if McAdams told him to come. That is the view of the court. It is immaterial.” It is apparent that the court was impressing upon counsel that Davidson's presence with the deceased at the Trapp home was equally lawful, so far as he was concerned, whether he was a deputy sheriff, or was merely a citizen who had been summoned by an admitted officer to assist in arresting a person, as was shown by the undisputed evidence. Counsel for appellant complains that this statement conveyed to the jury the information that, in the opinion of the court, the deceased and the witness Davidson were rightfully at the Trapp residence. We do not so construe the remark. The remark was merely a general declaration of the law to the effect that a citizen has a right to go, if requested, with a constable to make an arrest, and referred to no opinion of the court on the facts. When the court came to apply the law to the facts in the case, he gave his fourteenth instruction, in which the jury was specifically directed that the alleged warrant was illegal and void, and conferred no right on deceased or any one else to go upon the premises of the Trapps for any purpose.

[5] 3. Appellant complains of the alleged misdirection of the jury in submitting forms of verdict. The court submitted five forms, as follows: (1) Guilty as to all defendants; (2) guilty as to appellant and father and not guilty as to brother; (3) guilty as to appellant and brother and not guilty as to father; (4) guilty as to appellant and not guilty as to father and brother; (5) not guilty as to all defendants. Appellant contends that proper instructions required forms as follows: (1) Acquittal of appellant and conviction of father and brother; (2) acquittal of appellant and father and conviction of brother; (3) acquittal of appellant and brother and conviction of father; (4) acquittal of all three. He argues that appellant was denied the right of acquittal separately from the others. But counsel overlooks the controlling fact that appellant was the person who committed the actual homicide. Under the facts, the father and brother could not be convicted, and the appellant acquitted. If the appellant was to be acquitted, all of the defendants must necessarily be acquitted. There is therefore no merit in the contention.

[6] 4. Appellant complains of the exclusion of the testimony of two witnesses to alleged threats by deceased. The witness Thompson testified to a conversation with the deceased, in which he told that “he [McAdams] was going to arrest Trapp and take Cleve Hibler along, and get Trapp and him [Hibler] into a fight and kill one another.” This was taken from the jury, over the objection of the appellant. The witness Jump testified that deceased told him, at the time of service of process, in an action by the elder Trapp against the deceased, that he (the deceased) would have the elder Trapp in the Lincoln jail inside of 24 hours. This testimony was stricken out, over the objection of the appellant. Neither of these alleged threats were communicated to any of the Trapps. Whether either of these statements were of such a nature, especially the latter, as to be admissible at all as threats is extremely doubtful. They were offered as tending to show the probability of the deceased having begun the difficulty. At that stage of the trial, no evidence had been offered by the defense as to the circumstances of the killing, and the prosecution had shown by an eyewitness that appellant was the aggressor, and that deceased had committed no overt act of hostility. Under such circumstances, the statements were properly excluded for this, if for no other, reason; there having been at this time no evidence presented from which the attitude and conduct of the deceased was in doubt. 1 Wig. Ev. §§ 110, 111; 6 Ency. Ev. p. 789 et seq.

[7][8] 5. Appellant complains of the exclusion by the court of an alleged conversation between the elder Trapp and the deceased, in which the deceased told the witness of different difficulties he had had, and that he had assaulted other men, and had had different fights, and bragged about being a fighter and a shooter. This conversation was not communicated to the appellant. If the evidence was offered to show the violent character of the deceased, as reflecting on the view appellant took of the appearance at the time of the homicide, it is perfectly apparent that the fact must, in order to be relevant, be known to the person who acted. 2 Bish. New Cr. Proc. § 611. If the evidence was offered as reflecting on the question of who began the difficulty, it antagonized the well-recognized rule against showing specific acts of violence, and requiring proof of general reputation. 2 Bish. New Cr....