Territory v. West

• Decision Date: 02 September 1908
• Citation: 99 P. 343,14 N.M. 546,1908 -NMSC- 028
• Parties: TERRITORY v. WEST.
• Court: New Mexico Supreme Court

99 P. 343

14 N.M. 546, 1908 -NMSC- 028

TERRITORY v. WEST.

Supreme Court of New Mexico

September 2, 1908

Rehearing Denied Jan. 19, 1909.

Appeal from District Court, Chaves County; before Justice William H Pope.

Jim West was convicted of receiving stolen property, and appeals. Affirmed.

Appellant Jim West, was indicted at the October term, 1904, of the district court of Chaves county for the larceny of one horse and for receiving and aiding in the concealment of stolen property knowing the same to have been stolen. The indictment is the usual two-count form. Appellant was arraigned on said indictment at the October term, 1904, of said Chaves county district court, and, after interposing certain preliminary motions and special pleas, including a plea in abatement and of former acquittal, he pleaded generally to the indictment "not guilty." Trial was had at the regular fall term, 1906, of said Chaves district court, and resulted in a mistrial. Afterwards, to wit, at the April term, 1907, of said Chaves district court, appellant was rearraigned on said indictment, and after interposing certain preliminary motions and special pleas, including his former plea in abatement and of former acquittal, and all parties announcing themselves ready for trial, the case was submitted to a jury. And thereafter, to wit, on the 25th day of said term, after instructions were given by the court, and exceptions thereto filed by the appellant, the jury returned a verdict of "guilty," as charged in the second count of the indictment.

Gatewood & Bateman, for appellant.

J. M. Hervey, Atty. Gen., for the Territory.

McFIE J.

The case is now in this court on appeal by the defendant in the court below from the judgment and sentence rendered upon the verdict of guilty returned by the jury upon the second trial of the cause.

Upon the trial below the court gave the jury the following instruction, relating solely to the plea of former acquittal: "To this charge the defendant has interposed two pleas, one of a former acquittal, and the other the plea of not guilty. As to the first plea the court charges you that, under the law as applied to the facts, the same is not sustained by the evidence, and your findings thereon must be in favor of the territory. This leaves for your determination solely the issue as to the guilt or innocence of the defendant, and as to this I charge you that the defendant, by his plea of not guilty herein, has imposed upon the territory the burden of proving each and all of the material allegations of the indictment to your satisfaction, and beyond a reasonable doubt." The giving of this instruction is assigned as error, upon the ground that it withdrew from the jury a question of fact which it was their sole province to determine. The plea of former acquittal is based upon the facts that another indictment was returned against the defendant at the same term of court, by the same grand jury, making the same charge against the defendant, except as to the animals and the ownership thereof. In one indictment the animal alleged to have been stolen was a horse owned by William R. Potter, whereas in the other indictment it was alleged to be a horse owned by Lem Tanner. The record shows that the defendant was tried twice for the stealing of the Tanner horse; that upon the first trial the jury was unable to agree, and were discharged, without objection, but there is nothing in the record or testimony which shows that any proceedings were ever had, other than the finding of the indictment and its return, under the charge against the defendant for the theft of the Potter horse. The indictment for the stealing of the Potter horse is the one set up in the plea of former acquittal; and, there being absolutely nothing in the record to show any further proceedings in that case, it is difficult to find error in the court's instruction upon that issue. There was a replication filed to this plea, which was in its nature an affirmative plea, and the weight of authority is to the effect that the burden is upon the defendant to sustain it. 1 Bishop's Cr. Pr. § 816; Davidson et al. v. State, 40 Tex. Cr. R. 285, 49 S.W. 372, 50 S.W. 365; Fehr v. State, 36 Tex. Cr. R. 93, 35 S.W. 381, 650; Willis v. State, 24 Tex.App. 586, 6 S.W. 857; Commonwealth v. Daley, 70 Mass. 209; State v. Williams, 43 Wash. 505, 86 P. 847. Where under such plea a trial is had, and conflicting evidence is introduced, a mixed question of law and fact arises for the determination of a jury; but, where the defendant offers a special plea, such as former acquittal, and the prosecution denies the facts alleged, and the defendant offers no evidence to support the plea, the court may direct the jury to find for the territory on such plea, there being no question of fact for the jury's consideration. Ed. Morton v. State, 37 Tex. Cr. R. 131, 38 S.W. 1019; Oakley v. State, 135 Ala. 29, 33 So. 693; Johnson v. State, 34 Tex. Cr. R. 115, 29 S.W. 473; Commonwealth v. Brown, 28 Pa. Super. Ct. R. 296. The case of Territory of New Mexico v. Kee, 5 N. M. 510, 25 P. 924, and the other cases cited in appellants brief, do not relate to an issue raised by plea of former acquittal, but to the trial of the main case under the plea of not guilty. It is well settled that the court cannot direct the jury to find the defendant guilty, no matter how clear and undisputed the testimony may be, but those authorities are not in point upon the issue raised by a plea of former acquittal and replication denying the facts stated in the plea, where there is no attempt to support the plea by proof.

The second assignment alleging error relates to the court's instruction No. 23, which is in the following language: "You are instructed that the witnesses Jim Brown and Jake Neatherlin are what is known in the law as 'accomplices,' and, while it is a rule of law that a person accused of crime may be convicted upon the uncorroborated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination, in the light of all other evidence in the case, and you ought not to convict upon such testimony alone, unless, after a careful examination of the same, you are satisfied of the truth thereof, and are satisfied thereby beyond a reasonable doubt that the defendant is guilty as charged. But if, on the other hand, such testimony carries conviction, and the jury are convinced of its truth, they should give it the same effect as would be allowed to a witness who is in no respect implicated in the offense charged." It is objected that, in stating in that instruction that Jim Brown and Jake Neatherlin are what is known in law as "accomplices" the court decides a question of fact which should have been left to the jury. Counsel for the defendant refers to only one case in support of this assignment-that of Heivner v. People, 7 Colo. App. 458, 43 P. 1047. An examination of this case shows that the court does not cite any other cases in support of the view therein expressed. The case at bar is one where the testimony on both sides shows that the witnesses Brown and Neatherlin were accomplices. There is no dispute as to this fact, and counsel for the defendant upon the trial recognized this to be true by requesting the court to give four instructions in almost the identical language of the court's instruction above set out. Instruction No. 12, requested by the defendant is as follows: "The defendant requests the court to give to the jury the following instruction: 'You are instructed that the witness Jim Brown is what is known in law as an "accomplice"; and, while it is a rule of law that a person accused of a crime may be convicted upon the uncorroborated testimony of an accomplice, still a jury should always act upon such testimony with great care and caution, and subject it to careful examination in the light of all other evidence in the case. You ought not to convict upon such testimony alone, unless, after a careful examination of such testimony, you are satisfied beyond a reasonable doubt of its truth, and that you can safely rely upon said testimony."' In this, and also in Nos. 16, 18, 20 of the instructions requested by the defendant, the court is asked to charge in the same form as far as accomplices are concerned. The court adopted the request in this respect, and now it is assigned for error. Under these circumstances the assignment will not be considered by this court. Where the evidence is undisputed, it is not error for the court to instruct the jury that a witness is an accomplice. People v. Sternberg, 111 Cal. 3, 43 P. 198; Sessions v. State, 37 Tex. Cr. R. 58, 38 S.W. 605; Hatcher v. State, 43 Tex. Cr. R. 237, 65 S.W. 97; Wilkerson v. State (Tex. Cr. App.) 57 S.W. 956; Torres v. Cuneo (Tex. Civ. App.) 53 S.W. 828. There was a general exception to this instruction in the court below, but it was not excepted to upon the ground stated in the assignment of error, nor was it objected to upon that ground in the motion for a new trial. Not having been brought to the attention of the court in the court below, it cannot be properly assigned as error in this court.

The third assignment of error is not sustained by the facts disclosed in the record. The error alleged is "that during the progress of the trial in said case, the judge of said court, without declaring an adjournment of court, and without suspending proceeding in said trial, absented himself from the courtroom, and left said trial to proceed, and said court to conduct itself, without a judge on the bench." It is of course essential that the judge of the court trying a criminal case shall be present during all of the proceedings; and, if he desires to retire from the courtroom,...