26 N.M. 532 | N.M. | 1921
OPINION OP THE COURT.
The case principally relied upon by appellants is apparently that of Territory v. Lynch, 18 N. M. 15, 133 Pae. 405, but that case is not authority for the right of a party to ask jurors on their voir dire as to whether they believe in the principle of law which it is their duty to apply in a criminal case, and whether they will be governed by that law in arriving at a verdict. The rule in this state, as in the majority of the United States, is that the defendant in a criminal case is .entitled to make reasonable and pertinent inquires of a juror on his voir dire, so that he may exercise intelligently and wisely his right of peremptory challenge (16 R. C. L. 246), and this was the effect of the holding in the Lynch Case. Appellants have cited ns to no authority which holds that it is proper to interrogate the jurors on voir dire examination as to their belief in the principle of law, or their willingness to be guided by their oaths, which of course bind them to take the law from the court.
In the ease of Ryan v. State, 115 Wis. 488, 92 N. W. 271, the court held that upon the examination of a juror on his voir dire it was not error to exclude a question as to whether he knew that the defendant in a criminal case was entitled to the benefit of the presumption of innocence, since that called upon him to anticipate the instructions to be given by the court, and in that case it was likewise held that it was not error to exclude a question as to whether the juror, if selected, would, give the defendant the benefit of the presumption of innocence throughout the trial of the case.
In the case of Hughes v. State, 109 Wis'. 397, 85 N. W. 333, several jurors were asked whether in ease of a reasonable doubt in their minds as to the guilt of the accused they would give him the benefit of such doubt, and it was held that the court properly, excluded the question.
In the case of People v. Conklin, 175 N. Y. 333, 67 N. E. 624, in discussing a similar question, the court said:
“The defendant’s counsel propounded certain questions to individual jurors upon a challenge for principal cause, which were objected to by the district attorney, and, the objection being sustained by the court, an exception was taken. The questions were substantially the same in every case. The juror was asked whether he knew that, in law, the accused in a criminal case was to be presumed innocent until proved guilty, and that the proof in a criminal case must be stronger, in order to convict, than in a civil case involving like issues. The objection to these questions was properly sustained. The qualifications of a juror do not depend in any degree upon his knowledge, or want of knowledge, of the law of evidence as applicable to criminal trials. These were all matters of law, which the juror was bound to take from the court. A juror cannot be a law to himself, but is bound to follow the instructions of the court in that respect, and hence his knowledge or ignorance concerning questions of law is not proper subject of inquiry upon the trial of'the challenge for cause.”
In the ease of State v. Perioux, 107 La. 601, 31 South. 1016, the court held that it was improper to ask a juror if he was accepted if he would give1 the benefit of any doubt created in his mind by the evidence to the accused and acquit him. The court said:
“The law requires the trial judge, at the end of the trial, to charge the jury that if a reasonable doubt find lodgment in their minds as to the guilt of the accused, they must give the latter the benefit of the same and acquit, and it is not to be supposed, in advance, that the jury will decline to heed the charge so to be given, or that a juror“will refuse to be instructed by the court.”
And this observation by the court is very pertinent here, because these questions which they were propounding to the jurors would of course be covered by instructions of the court, and it would be somewhat of a reflection on the jurors to imply that they might be willing to violate their oaths.
To the same effect were the cases of Roberson v. State, 40 Fla. 509, 24 South. 474; Brown v. State, 40 Fla. 459, 25 South. 63.
In the case of Fugate v. State, 85 Miss. 86, 37 South. 557, a juror was asked as to his conception and understanding as to what a reasonable doubt was. The court said:
“There was no error in refusing to allow defendant to examine the juror Emmett Livingston on his voir dire as to his conception of a reasonable doubt. Jurors on their voir dire examination are not to be led into the tangled mazes of this metaphysical field.”
The extent of the examination of jurors upon their voir dire is largely in the discretion of the trial court, and this discretion will not be interfered with except in a. case of abuse. Here there was no abuse of the dis-. cretion, as the record shows that there was a full and complete examination of the jurors, except as to the question of their belief in and willingness to apply the law, which they were required to take from the court, and no juror had indicated that he had theretofore formed ■ or expressed any opinion as to the merits of the case. The examination of jurors would be interminable if parties were allowed to take up the whole law of the case item by item, and inquire as to the belief of the' jurors and their willingness to apply it.
What has been said disposes also of the seventh error urged.
“Instruction No. 12. You are instructed that if you believe from the evidence that Allen Doyal was, on the 19th day of August, 1919, or on the date that this offense was committed if you And that it was committed, duly elected, qualified and acting constable in and for the Cap Rock precinct in Chaves county, N. M., then and in that event he had a right to make an arrest for a violation of law committed in his presence, and had the rig'ht to pursue such violator of the law upon his own property for the purpose of making such arrest without a warrant within his precinct, and you are further instructed that it is a violation of the laws of New Mexico to tear down a fence constructed upon land belonging to another without the consent of the owner of said land.”
The first objection is that it is erroneous, in that a constable is not a conserver of the peace, but as this objection is not discussed it need not be further considered.
It is next urged that there is no testimony in the record that Doyal was a duly elected and qualified constable of the precinct. Doyal, however, testified on direct examination without objection that he was a constable in said precinct and also on cross-examination. This disposes of this objection.
The third ground is that there is no evidence tending to show that Otto Douthitt was tearing down the fence illegally, or was a violator of-the law in that respect,, or that he was committing an offense against the laws of the state of New Mexico. The witness Doyal testified on behalf of the state that the fence that was being torn down was upon the homestead of a Mr. Conner. The same witness testified further that the fence in question was on the dividing line of the land of Conner, and that there was some litigation at that time involving the same, and that by reason of this litigation the witness had been instructed by the justice of the peace to see that no one interfered with the fence. But, in any event we fail to see how the instruction was prejudicial to the appellants. They did not defend upon the theory of self-defense, but rested solely upon an alibi.
Finding no error in the record, the judgment is affirmed ; and it is so ordered.