State v. Stewart , 34 N.M. 65 ( 1929 )

ON MOTION FOR REHEARING A motion for rehearing has been filed and argued. The main contention on this motion for rehearing is that the court erred in overruling the motion for a directed verdict at the close of the case for the prosecution in chief. The motion was founded upon the proposition that the defendant, having been previously convicted of murder in the second degree, could not now be convicted of murder in the first degree, of which the evidence for the prosecution showed him to be guilty, if guilty at all, and which evidence excluded all other degrees of unlawful homicide. Let us assume without argument and without deciding that the position of counsel for appellant is correct and that it was error on the part of the district court to deny the motion as the case then stood. Had the appellant stood upon his motion and refused to submit any proof in the case, then the question would properly arise as to whether the appellant could, under the proofs for the prosecution, be convicted of murder in the second degree as he was. But the appellant elected to introduce proof in an attempt to show that the killing was done in self-defense. If this proof, and the inferences authorized to be drawn therefrom by the jury, showed the appellant to be guilty of murder in the second degree, then the verdict should not and cannot be disturbed. In other words, the technical error of the district court in denying the motion for a directed verdict, if error it was, was waived by the appellant when he elected to put in his defense and introduce evidence which authorized his conviction of murder in the second degree, if it so did. This is necessarily so both upon principle and authority. This proposition was never presented and relied upon in this court until the case of State v. Vincioni, 30 N.M. 472, 239 P. 281, was before the court. In that case, however, we found it unnecessary to decide the point for the reasons pointed out in the opinion. In State v. Ellison, 19 N.M. 428, 441,144 P. 10, we considered a motion of this kind, but the question of waiver was never presented in the case or considered. Nor was the question considered in State v. Garcia, 19 N.M. 414, 143 P. 1012. The rest of the cases, subsequent to State v. Ellison, supra, are collected in State v. Vincioni, supra, and it is there pointed out that in none of them was the proposition relied upon or decided. It was simply assumed that such a point was available on appeal when it was, in fact, well founded under the facts as shown by the prosecution. In First State Bank v. McNew, 33 N.M. 414, 269 P. 56, we discussed this proposition and held that the error, if it was error, in refusing to direct a verdict at the close of plaintiff's case in chief, was not available when upon the whole case the judgment was correct, citing 4 C.J., Appeal and Error, § 3005, and Carpenter v. Gantzer, 164 Minn. 105,204 N.W. 550. It is true that this was a civil case, but necessarily the rule must be the same in both civil and criminal cases. See Gordan v. Commonwealth, 146 Ky. 61, 141 S.W. 1186. Upon the subject generally see 17 C.J., Criminal Law, § 3687; 38 Cyc. pp. 1590, 1591; 26 R.C.L., Trial, § 87; Walker, Errors in Criminal Procedure, p. 28(h); Union Pac. Railway Co. v. Callaghan,161 U.S. 91, 16 S.C. Ct. 493, 40 L. Ed. 628; Hansen v. Boyd,161 U.S. 397, 16 S. Ct. 571, 40 L. Ed. 746; State v. Asbury, 172 Iowa, 606,154 N.W. 915, Ann. Cas. 1918A, 856, 860; McCown v. Muldrow,91 S.C. 523, 74 S.E. 386, Ann. Cas. 1914A, 139, note at page 146; Cincinnati Traction Co. v. Durack, 78 Ohio St. 243, 85 N.E. 38, 14 Ann. Cas. 218 and note at page 222, collecting cases from all over the United States; Barabasz v. Kabat,91 Md. 53, 46 A. 337, is a fine case collecting many of the cases. Southwest Cotton Co. v. Ryan, 22 Ariz. 520, 199 P. 124; People v. Barlow, 134 Mich. 394, 96 N.W. 482.

This proposition was sufficiently discussed and authorities cited in the original opinion. As is therein pointed out, the appellant again urged upon the court that the testimony as a whole made out a case of first degree murder only, or self-defense; and did not authorize the submission of second degree murder to the jury. The error in appellant's argument is easily demonstrable. It is true that the evidence for the state tended to establish that appellant shot from ambush in the cornfield; that he left tracks therein where he knelt down and ejected a shell from his gun; and the dying declaration of the deceased is to the effect that appellant disappeared in the cornfield, and that when he called to him to come out and talk the matter over appellant told him to either put up his hands or he would shoot, which deceased refused to do, that appellant thereupon shot deceased, and that deceased could not see appellant when he shot him or afterwards. On the other hand, appellant puts an entirely different face upon the matter. He says that he went up to the ditch with his shotgun to protect himself, and after attending to some matters about the water, sat down on the ditch bank; that deceased rode up upon his mule and stopped in plain view and near appellant and made a demonstration of drawing a gun in a threatening manner toward appellant, whereupon appellant shot deceased to save his own life as he believed; that the track and shell found in the cornfield were made and left there after the shooting while appellant was looking for the supposed confederate of deceased, whom he had heard talking and had seen through and under the corn leaves. Just how much of the account given of the fatal affray by appellant the jury believed it is impossible to say, but it is certain that they had the right to accept only such portions thereof as they believed to be true. They may have believed the statement of appellant that he made the track and left the shell in the cornfield after the shooting, and disbelieved the statement in the dying declaration that the deceased was shot from the cornfield. On the other hand, they may have believed appellant when he said that deceased, on his mule, stopped near him and in plain view, and disbelieved that deceased went armed or made a hostile demonstration with a pistol. There was much controversy over the finding of a pistol in the acequia some little time after the homicide, claimed by appellant to be the pistol with which deceased was armed and which, as he fell from his mule after being shot, he threw away from him. What effect this evidence and the circumstances surrounding its production may have had on the jury in causing them to conclude that deceased was or was not armed, it is impossible to say. At any rate, the testimony was before them from which they were authorized to conclude that the killing was unjustifiable and was done under such circumstances as to constitute murder in the second degree.

[12] Appellant urges that the district court abused its discretion in overruling appellant's motion, and amended motion, for a new trial on the ground of newly discovered evidence. The grounds upon which newly discovered evidence may require a new trial are set forth in State v. Quintana, 30 N.M. 348,234 P. 306, and the New Mexico cases are there collected. In the present case the homicide was committed on August 12, 1921. A preliminary hearing was held and a habeas corpus proceeding for bail was had, and the case was tried beginning April 4, 1922, resulting in a conviction of murder in the second degree, from which an appeal was taken to this court, State v. Stewart, 30 N.M. 227,231 P. 692, resulting in a reversal for a new trial. The present trial began April 13, 1925, and closed April 18, 1925, when the verdict of the jury came in. On April 27, 1925, a motion for a new trial was filed. Not until August 6, 1925, was a supplemental motion for a new trial filed to which is attached an affidavit of one W.G. Smalley, giving the facts upon which a new trial was sought. On August 25, 1925, these motions for a new trial and a motion in arrest of judgment were overruled and appellant was sentenced by the court.

It thus appears that more than three years elapsed after the first trial before Smalley was found and gave his affidavit. In the supplemental motion for a new trial no details are given of any efforts made to locate Smalley, the general statement merely being made that appellant did not know of the whereabouts of Smalley and that he would testify as in his affidavit set out. The motion is not verified by appellant. Under all these circumstances we do not think that reasonable diligence has been shown. Appellant and his counsel knew at both trials of this case that Smalley was present and could be a witness to many of the facts. They also knew that Smalley had left the jurisdiction before the first trial. Yet what they did, if anything, to locate and interview him does not appear. No diligence, therefore, is shown. Again we cannot see that the evidence of Smalley, if produced, would probably change the result. The evidence would show that the deceased was armed. But this had already been shown by appellant by the finding of the pistol in the acequia. It would also show that the deceased was armed with an entirely different pistol from the one found in the ditch. Or, taken with other evidence, it would show that deceased was armed with two pistols instead of one, a situation hardly to be contemplated. Just how these different considerations could be reconciled by appellant so as to probably change the result we are unable to see. The district court, therefore, was within its discretion in overruling the motions for a new trial.

In view of the length of sentence confronting the appellant, we have given this case most careful consideration. We fail to see, however, how any of his rights have been invaded, and for that reason we must adhere to our former opinion and judgment of affirmance.

The motion for a rehearing is therefore denied, and it is so ordered.

BICKLEY, C.J., and WATSON, J., concur.