U.S. v. Densmore

• Court: New Mexico Supreme Court
• Writing for the Court: MILLS, C.J.
• Citation: U.S. v. Densmore, 75 P. 31, 12 N.M. 99, 1904 -NMSC- 4 (N.M. 1904)
• Decision Date: 06 January 1904
• Parties: UNITED STATES v. DENSMORE.

75 P. 31

12 N.M. 99, 1904 -NMSC- 004

UNITED STATES v. DENSMORE.

Supreme Court of New Mexico

January 6, 1904

Syllabus by the Court.

1. Under section 1035, Rev. St. U.S. 1878 [U. S. Comp. St. 1901 p. 723], a defendant charged with murder in the first degree may be found guilty of manslaughter, provided there is evidence in the case to sustain such a verdict.

2. It is not reversible error for the court to give an instruction containing the common-law definition of manslaughter when all the evidence shows that the killing was done by one of the forms set out in the act of Congress defining manslaughter more especially as the court gave an instruction at the request of the defendant limiting manslaughter to the definition contained in the United States statute.

3. A defendant may be convicted as a principal when he takes part in a fracas preceding the homicide and calls on others to kill the deceased.

4. The instructions must be considered as a whole, and their bearing upon all of the evidence introduced in the case must be considered.

5. Evidence of specific acts of lawlessness by the deceased when under the influence of liquor were properly excluded by the court.

6. The calling in of the jury after they have retired and deliberated on their verdict, and asking them as to the possibility of their arriving at a verdict, and sending them to their jury room for further deliberation, are not such jury room for further deliberation, are not such instructions as are required to be in writing.

Appeal from District Court, before Justice Crumpacker.

Lewis E. Densmore was indicted in the United States court, Second Judicial District, territory of New Mexico, for the murder of John Maxwell, on the Navajo Indian reservation, in said district, by shooting him with a rifle. The indictment is in the ordinary form, and charges murder in the first degree. To the indictment the defendant entered a plea of not guilty and was afterwards tried by a jury, which heard the case and, after having deliberated for a very considerable length of time, returned a verdict of guilty of manslaughter, and recommended the defendant to "the consideration of the court." Motions for a new trial and in arrest of judgment were duly filed, considered, and overruled by the court, and the defendant was sentenced to serve a term of imprisonment in the Territorial Penitentiary at Santa Fe, and to pay a small fine and the costs, from which judgment the defendant appealed. Affirmed.

F. W. Clancy, for appellant.

William B. Childers, for appellee.

MILLS C.J.

In his able brief counsel for appellant has argued 15 errors which he alleges were committed by the court on the trial of this case. As is usual on appeals of this nature, where so many exceptions are relied on, several go to the same point, and therefore it will not be necessary for us to consider in detail each of the alleged 15 errors, as several of them may properly be classed together, and so considered by us. We will, however, say that we have gone over the entire records with great care, and that we have carefully considered the briefs which have been filed by counsel for the respective parties.

The indictment in this case charges murder in the first degree, and the jury returned a verdict of guilty of manslaughter. Under the laws of the United States and a decision of the Supreme Court of the United States, a defendant charged in an indictment with the crime of murder may be found guilty of the lower grade of crime, viz., manslaughter, provided, of course, that there is some evidence which tends to bear upon that issue. By section 1035 of the Revised Statutes of the United States, revision of 1878 (U. S. Comp. St. 1901, p. 723), it is enacted that "in all criminal causes the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment, or may be found guilty of an attempt to commit the offense charged; provided, that each attempt be itself a separate offense." This statute has been considered in Stevenson v. United States, 162 U.S. 313, 16 S.Ct. 839, 40 L.Ed. 980, and in U.S. v. Meagher (C. C.) 37 F. 875. Under the laws of the United States the crime of manslaughter is defined in section 5341 of the Revised Statutes of 1878 [U. S. Comp. St. 1901, p. 3628]. That section reads: "Every person who, within any of the places or upon any of the waters described in section 5339, unlawfully and willfully, but without malice, strikes, stabs, wounds, or shoots at, or otherwise injures another, of which striking, stabbing, wounding, shooting, or other injury such person cites, either on land or sea, within or without the United States, is guilty of the crime of manslaughter."

Counsel for defendant makes the point that the court committed error in giving the jury instruction No. 15, which is the common-law definition of manslaughter. We do not think that this is reversible error, as the alleged killing, as shown by the evidence in the case, was done by one of the forms expressly set out in the act of Congress defining manslaughter, to wit, by shooting. There is no evidence that Maxwell's death was occasioned by any other cause, and consequently the claim of defendant's counsel that this instruction is much broader than the statutes has no weight, because the evidence shows that decreased was killed by one of the ways mentioned in the statute. In addition to this, the learned court gave instruction No. 2 asked by defendant, which is a correct definition of manslaughter under the United States statute, applicable in this case.

Counsel for appellant contends that Densmore could not be convicted as an accessory to the killing, as there is no United States law which provides for the conviction of any one as an accessory to manslaughter. We do not understand that appellant was convicted as an accessory, but as a principal. But two witnesses testified who were present at the shooting, to wit, Esquibel and appellant, and their testimony varies in very important particulars. Esquibel testifies that, after several shots had been fired, and when both appellant and deceased had fallen to the ground, appellant called out, "Boys, kill him!" and that decreased was then shot by one Baca, he (deceased) then lying on the ground. The testimony of the witness Esquibel evidently was believed by the jury, and that of appellant was not. There can be no doubt but that appellant was present at the time deceased was shot, and that he took part in the fracas which immediately preceded the killing, and, if the jury believed from the evidence that he called out to his associates to kill the decreased, they were justified in returning a verdict against appellant, even if Baca fired the fatal shot, on the ground that Baca's act was the act of the appellant.

Several errors assigned by the appellant go to the instructions given by the court to the jury. Possibly, if these instructions singled out stood alone, some of them might have been erroneous; but this is not the way in which the instructions given by the trial court should be looked at. The instructions must be looked at as a whole, and their bearing upon all of the evidence introduced in the case must be considered. "There judge should instruct the jury as to the law applicable to all the reasonable hypotheses furnished by the evidence, leaving the jury to find the facts and apply the law to the facts as found." 2 Thompson on Trials, § 2324; King v. King, 37 Ga. 205. The greatest objection which can be found to the instructions given in this case is their extreme length, and to the fact that the...