State v. Vargas , 42 N.M. 1 ( 1937 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Daniel Vargas (defendant below and appellant here) was charged by information with the unlawful, deliberate premeditated killing of Jake Mossman. He admitted firing the shot that killed deceased, but claimed that the shot was fired not only in defense of his person but in the performance of his legal duty as a deputy sheriff of Taos county. After a verdict of guilty of voluntary manslaughter Vargas was sentenced to imprisonment in the state penitentiary for a term of not less than five years and not more than seven years. From this judgment and sentence Vargas appealed.

The record shows that just before the time of the fatal shot the defendant, a deputy sheriff, was at his house in Questa, N.M., when he was called by Luis Ortiz and Elidio Herrera presumably to stop a fight in progress between Mossman and one Adnadio Archuleta. The defendant proceeded to where the men had been fighting and found Mossman. He told Ortiz and Herrera to stay back. The defendant overtook Mossman and they went to a garage where the Port of Entry was located. The defendant called for possemen to assist him in handling Mossman, who was armed with a rock or rocks. John Vokich undertook to assist the defendant in handling Mossman, but Mossman shook Vokich off. The defendant then hit Mossman over the head with his night stick, knocking him down. Mossman then gave up the rocks and was loaded in the back seat of an automobile. Defendant then went out to get help to take Mossman home. While the defendant was getting a posseman to help him take Mossman home, Mossman got out of the car, stepped out of a side door of the garage, and proceeded northerly across a creek or ditch where he hid. Ben Padilla (one of the possemen), who had been called to assist defendant, indicated to the defendant where Mossman was hiding. Thereupon Mossman got up and started running across the south side of a saloon owned by one Padilla. The defendant went around the north side. Padilla heard defendant call to Mossman to stop two or three times. Then two shots were fired which resulted in the death of Mossman. One of the bullets entered the right leg just below the knee on the inside and seemed to go around just through the skin, close to the surface and come out below. This was just a minor wound. The other bullet entered on the right lower side of the abdomen and found its exit about three or four inches from and below the crease or middle of the buttocks.

Ten assignments of error are presented by the defendant on appeal. The first five relate to the trial court's ruling in each case in sustaining objections of the prosecution to questions propounded by counsel for the defendant in cross-examining the State's witnesses. We have examined the errors complained of and can find no prejudice resulting to the defendant from the rulings of the trial court. The method and extent of cross-examination rests largely in the discretion of the trial court, and unless it can be shown that the trial court abused his discretion to the prejudice of the party complaining, such rulings will not be disturbed on appeal. State v. Carter, 21 N.M. 166, 153 P. 271; State v. Roybal, 33 N.M. 540, 273 P. 919; State v. Burrus,38 N.M. 462, 35 P.2d 285.

The sixth assignment of error is predicated upon the trial court's refusal to direct a verdict of not guilty at the conclusion of the case for the prosecution. The defendant did not elect to stand on this motion, but proceeded with his defense. No error can be predicated. State v. White, 37 N.M. 121,19 P.2d 192, and cases therein cited. Also State v. Turney, 41 N.M. 150,65 P.2d 869. This rule is as firmly established in this jurisdiction as the Rock of Gibraltar.

The seventh and eighth assignments of error are predicated upon the court's refusal to withdraw from the consideration of the jury the charge of first and second degree murder. The defendant was convicted of voluntary manslaughter, and he was not prejudiced by the court's ruling. State v. Analla, 34 N.M. 22,276 P. 291, and authorities therein cited.

The ninth assignment of error relates to five instructions given the jury by the court on the law of voluntary manslaughter. It is the defendant's contention that the record fails to disclose any evidence sustaining a verdict of voluntary manslaughter, and therefore the court erred in giving any instruction thereon. We have examined the record, and find from the defendant's own testimony that at the time of the killing he was inspired more by fear than rage. The defendant himself testified that at the time of the killing he was afraid of Mossman. This clearly brings the case within the doctrine laid down by this court in the case of State v. Kidd, 24 N.M. 572,175 P. 772. This doctrine of heat of passion engendered by fear or terror, first announced in the Kidd Case, has been the rule in this jurisdiction to this day. This rule was again reaffirmed in the recent decision by this court in the case of State v. Inman,41 N.M. 424, 70 P.2d 152.

The tenth and final assignment of error is merely a general assignment based on the defendant's theory that the verdict is contrary to the evidence and the law. An examination of the record clearly shows that the evidence supports the verdict, and that the verdict is not contrary to the law, and the judgment of the court on the verdict must stand in the absence of error. We find no error. It is so ordered.

HUDSPETH, C.J., and SADLER, BICKLEY, and BRICE, JJ., concur.

On Rehearing.