24 N.M. 405 | N.M. | 1918
OPINION OP THE COURT.
Appellant Smith was convicted in the district court of Dona Ana county of murder in the first degree. From tbe judgment pronounced upon tbe verdict, he appeals.
The facts out of which the homicide occurred are fully • stated in the opinion by this court in the case of State of New Mexico v. Starr, 24 N. M. 180, 173 Pac. 674, not yet officially reported, and need not be repeated here. It is sufficient to say that Smith, alias Dashley, was one of the parties who escaped with Starr from the Luna county jail; that he was with the escaping party when Stephens, the sheriff, was shot and killed; that appellant was armed; that he escaped after Sheriff Stephens was killed and was not apprehended fori some months. Appellant was placed upon trial under an indictment containing three counts, but was only convicted on the second count, which charged him with being a principal in the second degree to the murder of Dwight Stephens. Before the ease was submitted to the jury, the state dismissed the first count; only the second and third being submitted to the jury.
“The transcript is the source from wliicli appellate tribunals obtain tbeir knowledge of the facts involved in the controversy between the parties before them, as -well as the source from which they derive their knowledge of the questions upon which it is their duty to pronounce judgment. * * * The courts have again and again adjudged that appeals are heard upon, the record and by the record determined.”
It is universally held that the duty devolves upon the appellant to bring‘to the higher court a perfect record, and that, in determining the merits of an appeal, the appellate court will look alone to the record and will not receive evidence to supply omissions- therein. Again, it is the rule that a bill of exceptions is construed most strongly against appellant. 4 C. J. 244. The weight of authority is to the effect that, when a challenge for cause to a juror is improperly overruled, the error will be regarded as immaterial and without prejudice if the objecting party did not challenge the juror peremptorily and his peremptory challenges were not exhausted; this upon the theory thatí a party must use all available means to exclude all objectionable jurors, and that a failure to do so constituted a waiver of his objection. 24 Cyc. 323, 324. We agree with the majority rule. This being true, it is our duty to assume that appellant was not harmed by the failure to sustain his challenge for cause.
It further appears from the bill of exceptions that only a portion of the evidence given by the jurors upon their examination is included. Other questions asked of them by court or counsel may have fully shown their qualifications to sit in the present case.
The same thing is true as to the objections urged to the eleventh instruction given by the court of its own motion.
Other grounds of error were assigned, but they are either disposed of by the opinion in the case of State v. Starr, supra, or clearly without merit and require no discussion.
For these reasons the judgment of the district court will be affirmed, and it is so ordered.