24 N.M. 660 | N.M. | 1918
OPINION OP THE COURT.
The appellant, Thomas A. Goodrich, was convicted of the crime of assault with a deadly weapon, in the district court for Quay county, and, from the sentence imposed upon him by the court, has perfected this appeal.
The difficulty, which was the subject of this case, arose between the appellant and Stephen R. Calender principally on account of the difference of opinion existing between these men with regard to the right of possession and use of certain lands in Quay county. The witness Calender claimed the right of possession thereof, which was not recognized by the appellant. The appellant was requested to refrain from grazing his stock upon those lands, but apparently refused. On December 17, 1916, appellant and G. "W. Payne were riding across said lands and were accosted by Calender, who likewise was mounted upon a horse. The witness Calender testified that, when he came near to appellant, the latter demanded that he halt and, before the witness could obey that command, the appellant fired a shot at the witness ; the same taking effect in the right shoulder of the witness. The witness then immediately returned towards the place from whence he came, and the difficulty ended. The appellant’s version of the transaction tended to make out a case of self-defense, he and his witnesses testifying that Calender came riding down upon him cursing and swearing and pointing a revolver in his general direction, whereupon appellant fired said shot for the purpose of protecting himself. The state proved that previous minor. difficulties had arisen between Calender and the appellant. Evidence introduced on the part of appellant tended to show that Calender had theretofore threatened the life of the appellant.
“■Where the title to real estate is not in issue hut is only collaterally involved, or where it is necessary for a party to make only a prima facie showing of ownership, the best evidence rule is not applicable, and the fact of title or prima facie right of ownership may be established by parol evidence.”
See, also, the following cases cited by the Assistant Attorney General: Levelsmier v. St. L. & S. Ry. Co., 114 Mo. App. 412, 90 S. W. 104; Harper v. State, 109 Ala. 28, 19 South. 859; Underhill on Crim. Evid. § 309; 1 Wharton’s Crim. Ev. § 154. This disposes of appellant’s second and third contentions, but in conclusion of this discussion of this contention it should be noted that evidence was subsequently admitted, without any objection by appellant, that the ownership of the said lands was in dispute between Calendar and Lewis Payne.
“In order for the appellant to raise the question as to the properity of the ruling of the court upon the sustaining of the objection to the question, it was- necessary for him to make a tender of the testimony which he expected to elicit by the interrogatory.”
"We followed the general rule on the subject, stated in 3 C. J. 827, as follows:
“As a general rule, in order to reserve an available objection to the exclusion of evidence, a proper question must he asked, and, on objection thereto, an offer must he made at the time showing what evidence will he given if the witness is permitted to answer, the purpose and object of the testimony sought to be introduced, and all the facts necessary to establish its admissibility.”
As this was not .done, the appellant is not in a position to complain of the action of the court in this regard.
“Where, however, ho evidence has been given upon the subject by *the defendant, who alone can open the door, his character is not in issue, and he is not entitled to the instruction ‘that the presumption that his character is good must be considered by the jury.’ It is only affirmative proof of good character, quite independent of any presumption that one’s character is good until shown to he had, that hears on the probability of guilt and entitles the accused to an instruction that his character must be taken into consideration. The presumption of innocence is vital and must he charged if requested, hut the presumption of good character, when unsupported by affirmative proof, is practically an abstraction and need not be charged, even if requested.”
See, also, 12 Cyc. 620; People v. Brasch, 193 N. Y. 46, 85 N. E. 809; People v. Lingley, 207 N. Y. 396, 101 N. E. 170, Ann. Cas. 1913D, 403, and note thereto found in 46 L. R. A. (N. S.) 343, where practically all the cases are collected.
“It is for you to determine from all the evidence whether such defense is made in good faith or is a mere pretense.”
The argument is that by the use of the words quoted undue attention is directed to the contention of the state made al the trial, and that it constitutes a comment on the weight of the evidence. We are unable to agree with counsel in his contention. The instruction dealt with the limitations of the law imposed upon self-defense pleas, and was but fair alike to the appellant and the state.
For the reasons stated, the judgment of the trial court will be affirmed, and it is so ordered.