The Territory of N.M. v. Kelly

• Decision Date: 01 February 1882
• Citation: 2 N.M. 292
• Parties: THE TERRITORY OF NEW MEXICO, Appellee,v.EDWARD M. KELLY, Appellant.
• Court: New Mexico Supreme Court

2 N.M. 292

THE TERRITORY OF NEW MEXICO, Appellee,

v.EDWARD M. KELLY, Appellant.

Supreme Court of the Territory of New Mexico.

Feb. 1, 1882.

Judgment will be reversed for placing shackles or manacles on a prisoner during his trial only in case the record shows affirmatively that there was no reason for doing so. It will not be reversed even in such case if the irons remained on the prisoner only while a few of the jurors were being called and examined.

*1 Appeal from the District Court of San Miguel county.

PRINCE, J.

The defendant, charged with the murder of one John Reardon in the month of October, 1880, was indicted and arraigned at the February term, 1881, of the district court held in and for the county of Santa Fe, and pleaded not guilty. He filed a motion for a change of venue to the nearest county free from exception, declaring against the counties of Santa Fe, San Miguel and Mora. This motion was resisted by the attorney-general, who filed a counter-affidavit, among others of the affiants to which were the foreman and various members of the grand jury finding the indictment against the defendant, alleging a belief that San Miguel county was free from the exception claimed by the defendant. The court overruled and denied the motion, in so far as it applied to changing the venue beyond San Miguel county, to which county the cause was sent for trial.

At the succeeding (March) term of the district court held in and for San Miguel county, the defendant moved for a continuance of his cause until the next regular term the court, urging as a necessity therefor the absence of an important material witness, one Thompson, whose testimony, defendant alleged, by affidavit, could not be produced at the then present term of court, and without which he could not safely go to trial. This motion was resisted by the attorney-general, and, although none of the facts which the defendant alleged could be proved by the witness, were admitted by the attorney-general, the motion was denied. The defendant, subsequently, and during said March term, again moved the court to grant him a continuance, and alleged extraordinary efforts to find and communicate with said witness, who was then reputed to be in the Black Range, in this territory. This motion was also denied.

This case was called for trial at 7.30 o'clock on the night of the last day but one of the term, and the prisoner brought into court shackled. The defendant, before trial, moved the court to have his shackles removed. This motion was denied and the impanelling of a jury directed to proceed. Seven jurors were accepted during the evening session, some of whom were summoned from the bystanders, or the county at large, before the regular panel was exhausted, and whose names had not been furnished to the defendant twenty-four hours before the trial. On the following day, prior to the incoming of the court, the shackles were removed from the defendant.

During the course of the trial, the defendant offered to show that after the shooting he was jumped upon, kicked, and otherwise abused, by the prosecuting witnesses, and that at the time of the shooting they (prosecuting witnesses) threatened to hang defendant. Also, that defendant had never had any difficulty prior to the killing charged in this case.

The defendant also offered to prove threats of the deceased prior to the difficulty. All of which evidence was ruled out by the court.

*2 The jury found the defendant guilty of murder in the first degree.

The defendant moved for a new trial, which was denied. Defendant then moved an arrest of judgment, which was also denied.

Caypless & Breeden for appellant.

It was error for the court to receive a counter-affidavit on a motion for a change of venue: Barrows v. The People, 2 Ill., 121; Baxter v. The People, 2 Gil., 578; Gen. Laws N. M., Prince's ed., sec. 17, pp. 117, 118, “Shall.”

The court erred to the prejudice of the defendant in changing the venue to the county of San Miguel, to which objection was made and shown to exist by appellant's affidavit: Gen. Laws N. M., Prince's ed., sec. 17, pp. 117, 118, “Free from exceptions.”

The defendant's application for continuance at the February, 1881, term of the district court for Santa Fe county should have been granted: People v. Diaz, 6 Cal., 248; People v. Dodge, 28 Cal., 445, and cases there cited; People v. Brown, 46 Cal., 103.

The defendant was entitled to a complete list of jurors, who were to try him, twenty-four hours before the trial, and the court erred in permitting persons to be sworn and to sit as jurors whose names had not been so furnished the defendant: Gen. Laws N. M., Prince's ed., sec. 20, p. 228; Bishop on Crim. Proced., sec. 931, and cases there cited; Woodside v. State, 2 How. (Miss.), 655.

The defendant should have been relieved of his shackles before being brought to trial, and the judgment should be reversed for a failure so to do: People v. Harrington, 42 Cal., 165; State v. King, 1 Mo., 438; Bishop on Crim. Proced., sec. 955; Lee v. State, 51 Miss., 566.

Defendant was entitled to show that he was jumped upon, kicked and beaten by prosecuting witnesses, and the court erred in refusing to permit him so to prove, and also to prove that some of the prosecuting witnesses, at the time of the killing, threatened to hang the defendant.

The court erred in refusing to permit the defendant to prove that he never had any difficulty prior to the killing charged in this case.

The court erred in refusing to permit the defendant to prove threats by the deceased not communicated to the defendant: People v. Scroggins, 37 Cal., 676; People v. Crowin, 34 Cal., 192; Stokes v. People, 53 N. Y., 164; Whart. Crim. Ev., sec. 757, and cases there cited; Whart. Crim. Law, sec. 1027; Holler v. State, 37 Ind., 57; State v. Turhin, 77 N. C., 473; 93 U. S., 465; 19 Vt., 116; 16 Ill., 17.

*3 The court should have directed the jury to find the defendant not guilty.

The court should have given the instructions asked for by the defendant.

A new trial should have been allowed, and the court erred in refusing the same.

William Breeden, attorney-general, for the territory of New Mexico, appellee.

The defendant's application for a change of venue from Santa Fe county was granted; this was all he was entitled to.

The receiving of the affidavits presented in opposition, was in the discretion of the court, and the defendant was not prejudiced thereby.

An application for a continuance is addressed to the discretion of the court, and is not reviewable: 1 Gildersleeve, pp. 371, 372; 1 Bishop Crim. Proced., sec. 951, and numerous cases there cited.

The defendant was entitled only to a list of the jurors summoned to attend the term-which he received: Prince's Statutes, sec. 20, p. 288. He was only entitled to such list upon requiring the same. It does not appear that such list was required or applied for.

The defendant's shackles were removed before the trial commenced: 1 Bishop Crim. Proced., sec. 955, and cases there cited.

Threats by the deceased, in cases like this, are only admissible when there is a doubt as to which party was the aggressor, or commenced the assault: 19 Vt., 116; 93 U. S., 465; 16 Ill., 17. In this case there was no doubt or conflict of evidence on that point.

The defendant had a right to prove that he had previously been of a good reputation as a man of peace and good order, but evidence of particular facts, or that he had never before had a difficulty were not admissible: 1 Bishop Crim. Proced., sec. 1117; 2 Ind., 91; 57 N. H., 245; 74 N. C., 591; 119 Mass., 342; 4 Humphrey, 381; 76 N. C., 216.

The instructions asked for by the defendant were clearly improper.

The motion for a new trial was addressed to the discretion of the court, and its action in denying the same is not reviewable: 1 Bishop Crim. Proced., sec. 1274; 65 Ill., 17 to 24; 57 Ga., 482; 56 Ga., 84; 2 Texas Appeal, 46.

BRISTOL, Associate Justice:

The material facts disclosed by the record are substantially as follows:

The appellant, Edward M. Kelly, was indicted for the crime of murder in the first degree, at the February term, 1881, of the district court of Santa Fe county, in the judicial district aforesaid; and after being arraigned, and pleading not guilty, at the term aforesaid, the appellant made an affidavit for a change of venue from the county aforesaid to the nearest county free from exceptions. This affidavit, in addition to positive averments sufficient for a change of venue from Santa Fe county where the cause originated, contained the averment that the same objections existed in San Miguel county, and in several other counties specified. Counter-affidavits were received and read under objection and exception by the appellant as to the grounds of exception to San Miguel county, upon appellant's motion for a change of venue upon his said affidavit, which was supported by two other affiants. The court, upon all the affidavits under objection and exception by the appellant, ordered a change of venue to said San Miguel county, in the judicial district aforesaid. The then next succeeding term of the district court for said county of San Miguel commenced on the 7th day of March, 1881. On that day, at such term, the cause was set for trial the following Monday, the 14th day of March, 1881. On the sixteenth day of that month, the appellant made a motion for a continuance to the then next term, based on affidavits made by him and by others on his behalf therefor. This motion was overruled, and such ruling excepted to the same day. On the last day but one of the term, at 30 minutes past 10 in the evening, the case was brought on for trial. The prisoner being brought before the court for trial, with shackles on his legs, he moved the court to have them removed, whereupon the sheriff having the prisoner in charge, informed the court, “That the irons were riveted on, and in order to remove them, the prisoner would have to be taken...