290 P. 789 | N.M. | 1930
[1] Appellant's first contention is that the indictment is void because it was not returned by a lawful grand jury; said grand jury having been in law discharged prior to the finding of said indictment. The facts are that a grand jury was impaneled, began and continued its work until February 7, 1929, whereupon it returned into open court some true bills and some no bills, and at the same time presented and filed its final report declaring that it had completed its labors, that nothing remained for said body to do or investigate, that all business for which it had been convened had been completed, and prayed its discharge; that said report was accepted, and filed in open court, but said grand jury was not by the court discharged; that the court then ordered that, notwithstanding the grand jury had completed the business before it, the court desired to and did retain said body for reconvention should anything further develop, and that the grand jury be recessed and not discharged, although the members thereof would be free to go and come, not leaving the county without first informing the court and obtaining permission. The trial judge stated at the hearing on the plea in abatement that, while it was true that the report filed by the grand jury stated that the business had been finished, and prayed the discharge of the grand jury, it was also true that, at the time of said request for discharge, the assistant district attorney requested that they be not discharged, and that they did have some business yet to investigate. The learned trial judge, in commenting upon the statute invoked by appellant, section 78 — 215, 1929 Comp.: *137
"The grand jury, on the completion of the business before them, must be discharged by the court, but whether the business be complete or not, they are discharged by the final adjournment of the court, * * *"
said:
"I do not believe that the grand jury can arbitrarily determine that its business had been finished and file a report to that effect, and thereupon the court would have to discharge it. For instance, if the work was not finished and there were still cases pending to be investigated and the grand jury should be permitted to file a report stating they had finished their business, the court would have to discharge it. I really believe, gentlemen, that the determination as to when the business is finished must rest with the court, and it is his orders which must finally prevail."
We approve the reasoning and decision of the trial judge.
[2] Appellant next claims that the indictment is void because the several members of the grand jury were disqualified to act. He invokes section 3110, Code 1915 (section 78 — 203, 1929 Comp.), as follows:
"A challenge to one individual grand juror may be interposed for one or more of the following causes, only: * * * That a state of mind exists on his part in reference to the case, or either party, which satisfies the court, in the exercise of a sound discretion, that he cannot act impartially and without prejudice to the substantive rights of the party challenging."
He relies upon two California cases construing a similar statute. One was Terrill v. Superior Court, 127 Cal. xviii 60 P. 38. (1899). The pertinent thing decided therein is thus stated in the syllabus:
"Under Pen. Code, § 1008, declaring that the judgment allowing a demurrer to an indictment is final, and a bar to another prosecution for the same offense, unless the court, being of the opinion that the objection may be avoided in a new indictment directs the case to be submitted to `another grand jury,' where a demurrer to the indictment was sustained, but the indictment was resubmitted to the same grand jury, which found another indictment charging defendant with the same offense, founded on the same facts, such indictment was void."
The court put a great deal of emphasis upon the fact that under the material circumstances the court might direct the case to be submitted to "another grand jury," and said this manifestly did not authorize a submission to the same grand jury that had found the original indictment *138 which had succumbed to the demurrer. We have no statute like the California statute relied upon in that case.
The other California case is People v. Hanstead,
"Counsel for plaintiff in error cite three decisions — People v. Hanstead,
The foregoing case was cited with approval by the California Court of Appeals in People v. Follette,
"A grand jury having found one indictment is not disqualified to return a second upon the same facts, the proper procedure being taken."
The court said:
"The case of Terrill v. Superior Court, 6 Cal. Unrep. 398, 60 P. 38, was decided in 1899 when the statute used the phrase, `to another grand jury,' instead of `to the same or another grand jury,' as it now reads. Hence that decision can be of no assistance here."
The trial court said in the case at bar:
"There has been nothing shown to the court tending to show that the grand jurors entertained any feeling of prejudice or other feeling that would disqualify them, except the fact that they had investigated the case before."
We hold that the "state of mind" referred to in paragraph 6 of section 78 — 203, 1929 Comp., must arise from circumstances occurring or something heard outside, which had not the sanction of an oath and is merely hearsay. See People v. Northey,
Upon this record we are of the opinion that the trial court did not abuse its discretion in denying appellant's challenge to the grand jurors.
[3] The indictment charges that the defendant did unlawfully, willfully, feloniously, violently, and forcibly, make an assault upon the prosecutrix with the intent * * * unlawfully, feloniously, and by force and violence, to ravish, carnally know, and abuse. Appellant contends that this is not a sufficient charge, because it is not alleged that the defendant made the assault "with the intent to forcibly overcome her resistance." He argues that by section 35 — 801, 1929 Comp., the effective definition of rape, as applicable to the facts of this case, is, "That a person perpetrating rape upon or an act of sexual intercourse with a female when * * * her resistance is forcibly overcome," and that the indictment for an assault with intent to rape should allege an intent of the defendant to overcome resistance. He cites authorities to the effect that an attempt embraces every element of the offense except its accomplishment, and that such elements should be charged *140 in an indictment for an attempt. This may be conceded; yet we find that the indictment alleges that defendant's intention was to "ravish." The element of forcibly overcoming resistance is included in the meaning of this word, and there is no merit to the contention.
[4] The appellant complains that the court erred in permitting the prosecutrix and other witnesses to testify as to the details of the complaint she made immediately after the assault. We have carefully examined the record, and we think the trial court committed no error to the prejudice of appellant in applying the principle governing the admission of spontaneous utterances under stress. See State v. Buck,
[5] Finally, appellant urges that the verdict of the jury is contrary to the law and the evidence. It is not claimed that there is any error in the instructions. At the close of the state's case, the defendant made a motion for an instructed verdict of not guilty. This, in effect, is a demurrer to the evidence. The motion was overruled, and defendant presented evidence in support of his defense. By so doing, he waived any error of the court in ruling thereon, if error there was. Ex parte Pra,
The judgment must accordingly be affirmed, and it is so ordered.
WATSON and SIMMS, JJ., concur.
PARKER and CATRON, JJ., did not participate. *141