17 N.M. 535 | N.M. | 1913
OPINION OF THE COURT.
Counsel for appellant contend that the verdict below was contrary to the evidence.
3 “Ordinarily, neither the verdict of a jury nor the findings of fact of a trial court will be disturbed in this court when they are supported by any substantial evidence.” See also Territory v. Trapp, 16 N. M. 700.
The evidence in this case was substantial and we cannot disturb the verdict upon the ground assigned. To dis-' turb the verdict of the jury, in a criminal case, upon the ground of insufficiency of the evidence, the injustice should be manifest. U. S. v. Daubner, 17 Fed. 793.
The’ next ground relied iipon for reversal is that1 the record displays throughout the entire trial an obvious attempt on the part of the State to lay improper matters before the jury whenever possible, by insinuating other offenses and crimes committed by the appellant not connected with the issue of the case. It is admitted by the appellant that all such matters were objected to and all save two or three such objections were sustained by the court. It being contended by appellant that the constant-repetition of the irrelevant matters must have influenced the jury to return a verdict in the first degree. That this in itself is reason for a new trial. Citing People v. Bergen, 17 N. M. Supp., 296, where the rule is laid down that,
“A new trial will be granted for want of sufficient evidence, where a conviction was had on defendant’s confession of a crime previously committed, and evidence properly excluded, but plainly presented to the minds of the jury in various ways by the prosecution ”
We do not quarrel with the rule quoted, but cannot hold it applicable to the cause at bar. Were it .apparent to us that the jury was influenced by the matters cqmplained of, and were there not other sufficient evidence of a substantial character upon which the verdict could well be based, we would unhesitatingly grant a new trial. There was some useless repetition indulged in by the State, which is to be discouraged by an appellate court, and a disposition to wander from the issue, but we cannot say it was such as to raise doubt as to the justice of the verdict in this case.
We find no merit in the several assignments of error discussed under the second ground for reversal.
The third assignment of error relied upon,' is based upon the testimony of Sheriff Stephens, when called as a witness -for the defense, who gave damaging testimony as to the conduct of appellant at the time of a previous arrest and who enlarged upon his testimony while under cross-examination, by the state, over the objection of the defense. The appellant contends that the testimonr^ of this witness, while under cross-examination, was an elaboration of incompetent matter tending to confuse and mislead tlie jury. Appellant cites no authority in support of his position, and we cannot permit him to take advantage of a condition set in motion by himself. It is admitted that the matter brought out was responsive, but it is urged that the State was permitted to unduly profit by defendant’s mistake. We find no merit in appellant’s position in this respect.
It is also urged by appellant that the District Attorney was permitted to state to the jury that the court would probably instruct the jury that if the appellant was riding a horse taken from the Adobe Banch, at the time the battle took place, the jury would then find the appellant guilty of murder in the first degree. It is admitted that no such instruction was given, and it does not appear, from the record, that the defense made any attempt to correct any erroneous impression of the jury arising by reason of the statement complained of. The objection to the alleged conduct of the District Attorney appears solely from an affidavit by counsel for defendant filed soine weeks after the trial of the case. The record is silent as to any objections by defendant at the time of trial. The attention of the District Court was called to the matter, in a very general way, in the motion for a new trial filed April 8, 1912. The particular statement of the District Attorney which was criticized, Avas first pointed out in the affidavit filed July 20, 1912.
Our Territorial Supreme Court held in the case of Territory v. Anderson, 4 N. M. 213, that a party complaining of errors in admitting and excluding evidence, must in his motion for new trial, point out specifically and with reasonable certaintj'-, the particular evidence complained of; otherwise the trial court need not, and the appellate court will not, consider such objections.
For reasons heretofore given, we are satisfied that the errors complained of did not injtiriously affect the rights of the defendant, and did not cause an .unfair trial.
The judgment of the District Court is therefore, in all things affirmed, and the judgment and sentence of the court shall be executed on Friday, April 25th, 1913.
