27 N.M. 1 | N.M. | 1920
OPINION OF THE COURT.
The appellant was tried and convicted of murder in the second degree, and sentenced to a term in the penitentiary, from which judgment this appeal is taken. He was charged as a principal in the second degree; that is to say, one Joseph Savant was charged with murder in the first degree in regular form, and the appellant was charged as being .present, aiding, abetting, and assisting said Savant in the commission of the murder.
The facts appearing from the record are as follows: On the night of the homicide appellant and the said Savant had been down town, and returned about half past 10 o’clock to the home of the deceased, with whom they boarded. They were intoxicated, and made a great.deal of noise around the house. Appellant knocked at the kitchen door of the deceased’s house, and asked for liquor, which request was refused by the” deceased, he telling appellant to go to bed. Appellant then went to his bunk room, and took something out of his trunk, saying, “I am going to show you that I can make you open the door.” “I will show you if you are the boss of me;'I will see which is the boss.” Returning to the yard near the kitchen door, the appellant engaged in bad language toward the deceased, and the appellant and Savant broke in the kitchen door. Appellant then called to the deceased, and invited him to come outside, and threatened him, and said that he would “fix him.” The deceased then entered the kitchen from an adjoining bedroom, and the shooting began. At this time deceased had no gun, and he returned to his bedroom and procured a shotgun. When he returned to the kitchen another shot was fired, and he immediately returned the fire. All of the shooting, so far as appears from the evidence, was done by the defendant, Savant, and the appellant did no shooting. Upon firing the last shot by Savant the deceased fell, and thereupon the appellant entered the kitchen and jumped upon the deceased, and struck him on the neck with a pistol which he had, but which, so far as appears from the record, he did not fire. As he was striking the deceased, the appellant said, “There, I am better than you are, and will make your brains jump.” The shot which the deceased fired from his shotgun took effect upon Savant,' and he soon became unconscious from the effects of the wound although he afterwards recovered and testified as á witness in the case.
It will thus be seen that the actual killing was done by the defendant, Savant, and that the appellant was present, aiding, abetting, and assisting Savant in the commission of the crime, and he was so charged in the indictment.
A sufficient answer to all of these objections is to be found in 1 Bishop’s new Cr. Law, § 648; 2 Bishop’s New Cr. Proc. § 3; 1 Bishop’s New Cr. Proc. § 332, and Bishop’s Directions and Forms, §§ 113-115, and it will be unnecessary to cite our own or other cases. The indictment was in all respects regular in form.
The fourth, and the first clause of the fifth, ground of the motion repeat objections to the indictment theretofore made in the motion to quash, and need not be again considered. The grounds of the motion (1), (2), (3)', (4), (7), and the latter clause of (5), go to the question of the sufficiency of the evidence to support a verdict. The brief outline of the evidence given above clearly shows that appellant was the chief actor in the fatal encounter. He seems to have done all the talking and threatening, he assisted in breaking down the door, and, as soon as the deceased fell, jumped upon him and beat him with a pistol After they had broken open the door, appellant invited deceased out and threatened to “fix” him. It is clear that appellant participated in the common design to overcome and subdue deceased and to go as far as to kill him if necessary. The court, in overruling the motion for a directed verdict, so properly held.
“Why did you shoot Joe Laval that night?”
“Did you and Dominic Martino go to the kitchen, this night when you went there, for the purpose of assaulting or shooting Joe Laval?”
“On the night that you testified that Joe Laval was shot and killed, did the defendant, Dominic Martino, know that you had a pistol, and before you fired the shot out near the fence?”
The court sustained the objection to each of these questions, and the witness was not allowed to answer. As to the last question above quoted, the appellant cannot complain of the action of the court, for the reason that the witness was afterwards permitted to testify that he did not believe that appellant knew that he had a pistol because he had not told him.
As to the first two questions, above quoted, a serious question is presented. The questions went to the very essence of the transaction which resulted in the death of Laval. While it is true that a principal in the second degree is guilty of a substantive, independent offense, and-may be convicted of even a higher degree of homicide than the principal in the first degree may have been convicted, or may be convicted even if the principal in the first degree has been acquitted, it nevertheless remains true that the principal in the second degree, like any other defendant, is always entitled to show the real nature and character of the crime. In the case under consideration the appellant was entitled to show, if he could, that the deceased was killed by the witness Savant in lawful self-defense, and if the jury should be convinced of that fact he would be entitled to an acquittal. The evident object of the first question above quoted was to show by the witness that he never shot at the deceased or attemptéd in any way to harm him, until after the deceased had shot the witness in the face with a shotgun, and that he did the shooting, as hé believed, in order to protect himself from death or great bodily harm. An examination of the testimony of the witness shows that this was his attitude towards deceased. All- of the shooting which he had done prior to the fatal shot was done evidently for the purpose of intimidating the deceased and inducing him to give- him and the appellant liquor, and was not done with intent to harm the deceased. It is clear, therefore, that the exclusion of the evidence called for by the question was harmful to the appellant, and, there being no legal objection to the evidence, it was error to exclude the same.
It is to be noted in this connection that the question first above quoted requires no explanation to the court; it being self-explanatory. No answer which the witness could make to the question would be irrelevant or immaterial. Any answer he might make to the question would tend to characterize the nature and quality of his act in shooting the deceased. It is further to be noted that this witness was asked this question upon cross-examination, and counsel for appellant were not charged with knowledge of what the answer of the witness would be. He was not appellant’s witness. Counsel for appellant, therfore, would not be expected to be able to state to the court what the witness would answer. Under such circumstances the rule requiring a statement by counsel, advising the court of the nature of the testimony which the witness would give, has no application. 3 C. J. Appeal and Error, §§ 736, 737.
It follows that the judgment should be reversed for the error of the court in excluding the testimony mentioned, and the cause should be remanded to the district court, with directions to award a new trial; and it is so ordered.
