The Territory of N.M. v. Yarberry

• Decision Date: 31 January 1883
• Citation: 2 N.M. 391
• Parties: THE TERRITORY OF NEW MEXICO, Appellee,v.MILTON J. YARBERRY, Appellant.
• Court: New Mexico Supreme Court

2 N.M. 391

THE TERRITORY OF NEW MEXICO, Appellee,

v.MILTON J. YARBERRY, Appellant.

Supreme Court of the Territory of New Mexico.

Jan. 1883.

*1 Appeal from the District Court for Bernalillo county.

John H. Knaebel, for appellant.

I. The defense was clearly entitled to prove what was said by the deceased, shortly before the homicide, in the presence of the witness Greenleaf; and the objection to the said statement, namely, that it was incompetent and irrelevant, ought not to have been sustained.

1. If the course of examination was objectionable on any other ground, the failure to specify such other ground amounts to a waiver of further objection, and the prosecution can now insist only on the ground actually specified: Marston v. Gold, 69 N.Y., 220-228.

2. The prosecution objected prematurely, and having, in making the objection, assumed that the suppressed statement would, if permitted to be proved, disclose incompetency and irrelevancy, such objection was bad, unless such statement could not in any view be competent or relevant.

3. The prisoner was entitled to the benefit of the statement, if anything at the interview in question could possibly have been said by the deceased that would have been competent, relevant and material evidence for the defense.

4. The prisoner was not bound to ask leading questions, or, in the absence of any inquiry from the court, to make any statement or offer respecting what he intended to prove by the witness.

5. Every intendment is against the prosecution for suppressing the testimony, and in favor of the importance of the latter. See Stokes v. People, 53 N. Y., 183.

6. Therefore the appellant is now entitled to claim that, if the statement of the deceased had been allowed in evidence, it would have established animosity on his part against the appellant, and the utterance by the deceased, shortly before the homicide, of threats against the appellant.

7. Such proof would have been material, and possibly controlling in the appellant's favor, when taken in connection with the other circumstances of the killing, as presented in the appellant's evidence.

It would have tended directly and effectually to the corroboration of the appellant's account of the occurrence: Stokes v. People, 53 N.Y., 164, 175; People v. Arnold, 15 Cal., 476; People v. Scroggins, 37 Cal., 676; Wiggins v. People, 93 U.S., 465; Davidson v. People, 4 Col., 145.

II. The defense was also entitled to prove, as part of the res gestœ, first, by the witness Ronan, what appellant said, after the “first shot” was fired, and immediately preceding the tragedy; and, secondly, by the witness Annijo, what the appellant said to the sheriff who arrested him, in response to a question of the latter, four or five minutes after the tragedy.

*2 1. It must always be borne in mind that the appellant was an officer of the law (a constable), charged with the duty of arresting the deceased for the latter's infraction of the law against carrying and using deadly weapons: Prince's Laws, 314, secs. 9, 13; see, also, Id., p. 258, secs. 4, 5; and for malicious and disorderly conduct: Id., p. 259, sec. 5, chap. 3; and that, in this view, the res gestœ commenced, as soon as, by the information and pursuit, the appellant was brought into official relation with the deceased, pursuing and attempting to arrest the latter on complaint made, no warrant or display of official badge or authority being necessary: Prince's Laws, 314, sec. 9; Caufort v. People, 5 Ill., 404, Head v. State, 44 Miss., 731; McKee v. People, 36 N. Y., 113; Commonwealth v. McPike, 3 Cush., 181, 1 St. Ev., sec. 108, and note; Opinion, Thatcher, J., 9 Cush., 36.

III. The newly discovered evidence upon which the motion for a new trial was in part based, was highly relevant and material, and had it been before the jury it would undoubtedly have changed the result.

1. The affidavit of Reese (the coroner) shows that the evidence was not communicated to the prisoner or his counsel before the trial, and it is evident, or highly probable, that it was not only not obtainable, but actually concealed from the prisoner and his counsel, by unscrupulous accusers.

2. Such evidence would have strongly corroborated the prisoner's account of the affray, and have tended to prove him either guiltless, or answerable only for a less offense.

3. It would also have contradicted some of the most important testimony of the prosecution—that which tended to show the deceased to have been a harmless, unarmed man, wickedly set upon by a malicious murderer—and would have afforded a basis for the effective employment against such testimony of the maxim falsus in uno, falsus in omnibus.

IV. There being no proof of a conspiracy or common purpose existing between the appellant and his companion, the court erred in refusing to charge the fifth instruction requested.

V. The judge's charge amounts to a “comment on the weight of evidence.” See Stokes v. People, 53 N.Y., 182.

VI. The judge was required to charge “the law of the case”—that is to say, comprehensively and fully, not in part only, nor upon a particular theory of guilt. He failed in his charge to comply with this duty, so interpreted: Prince's Laws, 126, § 23; and see Stokes v. People, 53 N. Y., 182.

VII. The “Crimes' Act of 1790” (1 St. 112, § 3; U. S. R. S., § 5339), is in force in New Mexico as a “district of country” within its terms; and therefore the indictment ought to have been in the name of the United States for violation of the United States law of murder, instead of in the name of the territory for violation of the territorial law; the grand jury had no jurisdiction to find the indictment; and the court below had no jurisdiction of the person of the accused or of the offense charged against him.

*3 1. New Mexico is a “district of country.” Compare the terms “district” and “district of country” in various statutes and legal opinions: U.S.R.S., § 5339, etc.; Const., art. 1, § 8, sub. 7, 17; McLean, J., in Scott v. Sandford, 19 How., 541; 543; 1 St., 51, note; also Id., 29, 73, 94, 98, 99, 101, 106, 123, 130, 189; United States v. Terrel, Hemp. C. C., note.

2. The statute should be construed according to its terms: Tynan v. Walker, 35 Cal., 642. Franklin v. United States, 1 Col., 34, to the contrary, is a bad precedent.

3. The northwestern territory was probably not within the act: Construction, 98, note. Nor the lands claimed by the Indian tribes: Wheaton Int. Law, 69, 70; 3 Kent Com., 382, 383, etc.; Worcester v. State of Georgia, 6 Pet., 515; sed vide United States v. Rogers, 4 How., 572.

4. Notwithstanding the general rule as to the continuing force of foreign laws in territory acquired, not by discovery: 1 Bl. Com., 107; 1 Kent Com., 343, 473; 1 Story Cons., §§ 147, 148; Town of Pawlet v. Clark, 9 Cranch, 333; Bogardus v. Trinity Church, 4 Paige, 178, 198; Canal Appraisers v. The People, 17 Wend., 584, 622; Van Renselaer v. Hays, 19 N. Y., 93; also, 1 Kent Com., 473, note; but by conquest or peaceable cession: Authorities supra; American Ins. Co. v. Cauter, 1 Pet., 542, 543; United States v. Perchman, 7 Pet., 87; Mitchel v. United States, 7 Pet., 87; Leitensderfer v. Webb, 20 How., 177, 178; 17 Wend., ubi supra, also, 585, 586, 587, 588; the Crimes Act ought to be held to extend over New Mexico, ex proprio vigore: 1 Bl. Com., 108; Scott v. Sandford, 19 How., 393; also, the second clause of Article VI. of the Constitution; United States v. Seveloff, 2 Sawyer, 311; Cross v. Harrison, 16 How., 78; United States v. Hudson, 7 Cranch, 32; 1 St., 930, art. 9; 15 St., 542, art. 3; Bowyer Universal Public Law, 160, 327, 365.

5. That act has by various enactments been extended over all, or nearly all, newly acquired territory, in pursuance of a cautious legislative policy: 4 St., 729, § 25 (and previous Indian country acts); 2 St., 383, § 7; 2 St., 743, §§ 4, 16; 3 St., 654, § 9; also, District of Columbia Act (U.S. Laws, 1871). See United States v. Guiteau, not reported; see, also, various territorial acts.

*4 6. The 17th section of the organic act declares such extension in New Mexico; that section being equivalent to a declaration that the general laws should extend to and have full force and effect in this territory. Compare similar clauses in various acts admitting states and organizing territories.

The indictment is fatally defective, because it is drawn in the name of the territory, for violation of the territorial law, instead of in the name of the United States, for violation of the act of congress, relating to the crime of murder.

The Crimes Act of 1790 (1 St., 113, § 3), provides “that if any person or persons shall, within any fort, arsenal, dock-yard, magazine, or in any other place or district of country, under the sole and exclusive jurisdiction of the United States, commit the crime of willful murder, such person or persons on being convicted thereof shall suffer death.”

Substantially the same provision is embodied in the United States Revised Statutes, under the general head of “Maritime and Territorial Jurisdiction of the United States:” United States Revised Statutes, sec. 5339.

Although the necessity of exercising the constitutional prerogative of legislation over places ceded (a large part of New Mexico was ceded to the Union by the state of Texas— vide Organic Act, 981, 446), or to be ceded to the Union by the state, for military, naval and governmental purposes: Const., art. 1, sec. 8, subd. 17, may have prompted the enactment of certain provisions of the Crimes Act; yet it is evident that the act, taken in its whole scope and purpose, was intended as an assertion of the sovereignty of the Union, for the protection of its citizens throughout the national jurisdiction, against the more aggravated forms of lawlessness, by which their lives or property might be imperilled.

On the adoption of the constitution, the United States became a nation, with the rights and duties of exclusive sovereignty within...