*1 years Appellant Childers, months no such for a term of and six claim. like- ten wise, 3, 1942, February long signed from a and as similar order division and gas, royalty thereafter as oil and either made no claim to or rentals. them, produced is from said land finding The of the court was warranted. Corporation, said Amerada Petroleum judgment affirmed, The will be is so it assigns its successors or on the terms ordered. subject to the conditions of the hereby above described lease as ex- LUJAN, SADLER, McGHEE and KI- tended.” KER, JJ., concur. argued separate that where owners
of contiguous jointly tracts execute an oil lease, gas the several tracts constitute disposition single
(cid:127)a unit for of the oil produced therefrom gas contiguous tracts are
owners of
entitled to
production
participate pro
rata
agreement, appellant unsuccessfully Moore parties sign pooling
tried have the
agreement in which he made no claim to
apportionment. January 10, 1952, On wrote letter
also to Amerada which clear-
ly that he was not then shows contending agreement joint
that the lease constituted a Further, request Amerada, at the
lease. signed a order in which he division made *2 White, Hurley, Morgan
Wilson P. S. Albuquerque, appellant. Robinson, Gen., Atty. Richard Fred H. Standley Kegel, Attys. M. and W. R. Ass’t Gen., appellee.
KIKER, Justice. appeal
This is from a an conviction of degree murder in the first a sen- which tence of death electrocution has been imposed. Appellant appeal upon bases his will grounds three be set out and the facts briefly determined after are stated. 10, 1954, September Larry On 'James Upton, appellant, was hitchhiking the from Nowata, Oklahoma, 'to Los Angeles, Cali- eight-thirty At about fornia. that morn- up picked on ing he was the outskirts of by an Air Amarillo, Texas Corporal, Force Dilley, who was driving Donald T. Salt Utah, City, by way of Albuquerque, Lake Upton and Cpl. New Mexico. Dilley con- Albuquerque state to appellant the had Highway tinued on toward effect the morning, stop- prior been arrested through course of the for other the crimes tire, again, crime for he ping change being once to- flat which was tried. This gaso- Cpl. Dilley might purchase argument an upon so constitutes attack the afternoon, one-thirty accuracy At in the line. about the record. approximately four and when were Appellant made no direct attack the Albuquerque on one-half miles east as, example, record by recalling the from Upton pistol Highway drew a questioning witness and him as to what him beside package he had on the seat said; simply he had but forth sets his- Dilley stop the Cpl. car. and ordered his brief recollection of witness’s the an- Dilley speeded Cpl. stopping, Instead swer, as follows: Upton, up. Upon warning from a further explaining “A. In situa- different igni- Dilley keys Cpl. grabbed tions he laughed light or made the car’s switch and threw them from tion necessarily concerning them—he—not stopped he the car across window. Then incident, this but other I things. asked with the rear highway pointing south life; him about his other situations and the highway on the divider wheels * ** in which had he been arrested in the east bound traffic front of the car ” * ** (Emphasis by Cpl. four Upton Dilley times lane. shot court.) Upton got .38 caliber revolver. with a Dilley, alive, Cpl. still out of car record, however, shows the witness began car wheel. The slumped behind making following statement: highway, carrying south, off to roll explaining “A. In situa- different it, rest Dilley and came to Cpl. laughed light tions made of them forty high- arroyo feet from an some n —he—not necessarily concerning this Cpl. Dilley was thrown out and way. incident things, but other I asked him side automobile. lay the left on life; about situation which highway waved on Upton remained * * * he had arrested been on, up a fled can- then he vehicles various ” * * * (Emphasis court.) highway where yon north of hours later. two about arrested The record furnishes no founda *4 motion; appellant’s that for contention is the tion to hold first Appellant’s erred.in., repudiate him we would have to refusing motion rec below- court accept appellant’s mistrial, motion was based ord on recollection of a for which by witness’s statement. Language witness the the a alleged statement used an
209 84, Beal, 1944, they wounds after in 48 N.M. had us State been cleaned. The v. 88, other is a 175, 178, pertinent here: view of 146 P.2d is of the front decedent’s wounds, body hips up showing from the veracity “The court of nor neither they before photo- were cleaned. These * * * counsel is involved. It graphs shortly were admitted after purely correctly a recalling of matter admission of photograph a of the de- transpired, yet what grave so case ceased, taken alive, while he was dressed may as this be decided in the uniform Appel- Air Force. present
memory of at the trial. those urges lant these photographs in- are case, are bound to We consider as herently, sequence virtue of the presented here, upon the record made admission, gruesome their and inflamma- in of the case.” tory and jury rendered the emotionally in- many said in varying We have times capable of hearing impartially; case are situations we limited to consid urges judicial that his admission eration the certified record. See Waldo nature location of the wounds and his Beckwith, 1854, 97, 102; v. 1 N.M. Pino stipulate offer to that deceased was in shot Hatch, 131; 1855, 125, v. 1 N.M. Sanchez the dissipated back the grounds for ad- Luna, 1857, 245, 238, 246; v. 1 N.M. State photographs; mission of the he urges that Smith, 1918, 407-408, 405, 24 v. P. N.M. photographs are slight probative 740; Edwards, 189, State N.M. value and are cumulative. 191-192, 217 P.2d follows that we The controlling principle may be presume must that record be true stated Photographs follows: which are Adoption contrary accurate. of a rule prejudices calculated to arouse the pas disrupt orderly
would administration of sions and which are not rea justice enuring without slightest sonably relevant to the issues of the case anyone. substantive benefit of Since the ought be excluded. record is conclusive on us and there is no appellant’s in the record for basis motion We have examined the photographs say a mistrial cannot case; we the trial involved the instant we do not denying court erred that motion. gruesome find them or inflammatory nor sequence think do we of their intro Appellant’s second contention is that the qualities lent to them duction trial court erred admission of two inherently possess. do not photographs of the enlarged deceased. One photographs judicial is a view A of the back admission has been said body away naked showing deceased’s the to do with the necessity of proof by *5 210 Appellant’s is:' Evi third’ contention' Wigmore on party. 9 benefiting'
the
Ed.1940), see also
dence,
2591 (3d
Sec.
wrongfully
“That the defendant was
Ap
2588.
and
1058
same work Sections
brought to trial
mental con-
when his
admission of
judicial
pellant
here made
at the time
dition
of trial was of such
the wounds and
of
and location
nature
nature,
based on the imcontradicted
was
stipulate that the deceased
offered
qualified
testimony
psychiatrist,
aof
as
not, by this
Appellant did
in
shot
the back.
incapable through
to render him
mental
its
admission,
the state of
entire
relieve
conducting
defect of
defense.”
appellant still stood
proof,
burden of
statute,
41-13-3,
Section
NM
Our
Guilty
Guilty
plea
Not
on his
of “Not
1953,
Territory
as construed
v. Ken
SA
Insanity”1.
By
We think
Reason of
1910,
556,
854,
nedy,
P.
15 N.M.
110
and in
photographs
pur
admissible for the
were
583,
Folk, 1952, N.M.
v.
56
247 P.2d
State
pose
illustrating
tes
clarifying
of
165,
protects
who
persons
shields and
are
witnesses,
timony
proving
the cor
of
“insanity”
of
insane. Proof
defendant’s
or
pus delicti,
purpose
and for the
of cor
necessary
“mental disorder” is
in order to
identity
of the
roborating
deceased.
bring the
defendant within
shelter of
photographs
may
We have held that
insanity,
the statute.
this condition:
Once
be characterized as cumulative
are
evidence
established,
has been
our statute offers
properly
if
admitted
serve to corrob
protection to
in two
defendants
situations.
1948,
Jones,
orate
evidence.
v.
other
State
118,
559;
123,
52
192 P.2d
State
N.M.
v.
the defendant
is in
One: Where
257,
Horton, 1953,
262-263,
57 N.M.
258
of the
sane
the time
commission
1953,
371;
Johnson,
v.
P.2d
State
57 N.M.
proper
inquiry here is
crime.
721,
716,
In the
263 P.2d
latter case
as extended
M’Naghten rule
State v.
page 721,
held,
N.M. at
57
263 P.
we also
1952,
324, 330,
White,
58 N.M.
270 P.2d
285, that,
page
2d at
727, 731:
photographs
rests
“The admission
“ ‘
must be
that,
“The
satisfied
discretion of the
largely
trial
act,
committing the
at the time of
ordinarily his decision
will
court
accused,
a result of disease
be disturbed.”
not
’
* * *
did
(a)
mind
know the
quality of the act
(b)
nature and
or
foregoing
say
reasons we
cannot
For
wrong
that it
(c)
not know
was
did
court abused
the lower
its dis-
here that
preventing
incapable of
himself
photo-
these
in the admission
cretion
’ ”
committing it.”
graphs.
327, L.R.A.,N.S., 1115,
responsibility
quoted
inquiry goes to the
which we
This
Folk,
approvingly
supra,
criminal act
cited
alleged
the accused for his
State
may.
page
page
n disease truth can’t tell the even protection within of the self statute: help that rea- him for it would if question insanity. the court’s To “Is this for him and he impossible it is son time, at this man insane Doctor Stewart” own defense. his conduct cannot responded unequivocal with an the doctor Sir, is, “No, It therefore, man insane he is not.” Is this un “The Court: necessary attempt to No, to reconcile time, Stewart? A. Doctor the doc this seemingly two contradictory tor’s state- Sir, is not. ability issue must be submitted to the jury to tell regarding ments defendant’s determination. defense. the truth and thus aid in his own nature Appellant’s argument here is in the In the instant case the issue application attempt of an to secure brought was to the attention the lower inquiry language the rule of prior court to commencement of trial without within the bringing defendant motion for a ground continuance on the insanity; the stat- by proving statute presently that accused was insane and so interpreta- susceptible ute is not to such unable to make a rational defense. The appellant does tion. is to be noted expert lower testimony court heard on the constitutionality stat- not attack the of the motion, issue and denied thus in effect trial court did ute. We conclude ruling that no reasonable doubt existed as denying appel- not abuse its discretion present sanity to the accused. Hav a lant’s motion for continuance. ing negatively, duty rule there no on was the trial court to submit the issue to the are, further, opin We jury. moment, Let us assume for the how appellant placed ion that has himself in ever, already that which we have deter position such a that he cannot be heard contrary, mined to the that is: that the complain of the trial court’s denial of denying appel trial court in error in a his motion for continuance. continuance, lant’s motion there 41-13-3, con- NMSA Section was established a reasonable doubt as to Kennedy, Territory v. cited su- strued appellant’s sanity. present only ab Folk, supra, cited out- pra, and State v. right solute the accused would then have rights claiming of defendants in- lines the construed, had under our statute as would sanity at the time of trial: question presented have been to have jury. At the to the close the trial in particular bringing method of 1.) No the instant case lower court offered present sanity question of defendant’s question to send to the court of the trial is re- to the attention accused; n present sanity accused quired. 2.) has been raised Once issue requested that the specifically question not duty inquire the trial court is under Thus the trial jury. be submitted 3.) The trial court must into the matter. made available to the court accused every whether a reasonable doubt ex- rule as to guaranteed him—and more. The ac *8 sanity 4.) of the accused. cused, ists as to the having refused the trial court’s offer, affirmatively complain. cannot be heard now rules the to trial court If the 214 see its I am reluctant to wanting. not court will the lower judgment TJie by extension. destroyed the so-called effect affirmed, So Ordered. and Is
be day when we shall look forward I right If a man knows to return it. deliberately wrong, the wrong does and McGHEE, JJ., concur. and LUJAN be no defense responsible. It should he is impulse moved him that an irresistible COMPTON, J.,C. SADLER, J„ and act, that, though knowing plead to or to so helpless to wrong, he to be act specially. concurring n 18 L.R.A. doing it. Annotations avoid L.R.A.,N.S., If 224 43 150. these ob and open against hold door in re- will (concurring servations SADLER, Justice day again we are moved to' favor part). dissenting in sult but test, they not been in vain. old have opinion, ex- foregoing in I concur approval given the extension Since namely, approval particular, cept in one in the case in no manner mentioned White majority by the the extension therein herein, join in I affects the result reached 324, White, 270 P.2d N.M. 58 in v. State judgment reviewed. an affirmance rule, time hon- McNaghten 727, of the responsibility, when of criminal ored test COMPTON, J.,C. concurs. Mc so-called The insanity ais defense. wrong,” test had “right and Naghten, for Rehearing On Motion Territory Ken v. approval in our
received 854; 556, P. State v. 110 nedy, N.M. PER CURIAM. 646, 397, 110 A.L.R. 60 P.2d Roy, 40 N.M. Point one 583, fully of the motion was P.2d covered Folk, 56 N.M.
1, v. and State opinion at pag'es three and four. opinion my dissenting As stated White, supra, whatever in State Point two of fully the motion was cov- opinion of that ered in the pages five, the extension between six and difference seven. gen- and the v. White State made test “irresistible doctrine repudiated erally Regarding Point Three of the r motion 20, September On defendant entered beyond shadowy as to be it is so impulse,” plea guilty. The case was called differentiation. or clear statement lucid 11, 1954, trial on October the district' rule, present ability attorney being wrong” “right being- defendant other present from the attorneys. one with his distinguish Both the to state about the act be and the defendant comprehend respective their at- torneys wrong, been tested in announced has were ready committed whereupon experience found defendant, time crucible his at-
'215
torneys,
on the
a continuance
“A. That is
use to
moved for
term we
’show
ground
possess psychotic
The
that he
-incompetencyof defendant.
does
not
(cid:127)
court,
testimony
illness,
heard
mental
jury,
without
then
that is correct.’1’
direct examina-
of Dr. A. B. Stewart with
Then the
:
doctor testified
attorney. The doctor
tion
defendant’s
Doctor,
“Mr. Tackett:
a result of
as
De-
declared
was not insane.
the defendant
your
you
examination could
tell the
testimony and
fendant offered no further
jury and
whether
not the de-
Court
or
Thereupon
the motion.
court overruled
today?
fendant
sane
insane as
is
or
it
plea
be-
changed his
so that
defendant
plea
guilty
not
guilty
came a
of not
* * * my
I
feeling
“A.
feel
record,
insanity. Throughout the
reason of
would'be that
individual within the
this
testimony
officers con-
except
of the
terms,
meaning
sanity
of the
or in-
defendant and
with the arrest of
nected
;
sanity that this individual is sane and
custody,
in
there is
had him
those who
competent; knows the difference be-
evidently
is intended
much evidence
wrong
tween
and that he
in such
was
condi-
show that defendant
to
possesses,
ability
again, the abstract
to
early
had
been since
tion that
he
*
**
act
that recommendation.
years, mentally
His mother was
sound.
Doctor,
you say
“The Court:
would
testify
testify
did
hard-
called
Upton
was sane
that
defendant
or
boy and the
as a
ships he had suffered
September
insane on
1054?
shown
peculiarities
conduct.
was
of his
frequently incarcerated
been
he had
say
I
sane
“A. would
he was
at
California
in reform school
both
time.”
times
and several
had
penal institutions
to another
such institutions
sent from
been
quote again:
We
his mental condition.
as to
observation
Doctor,
defendant,
this
“The Court:
Dr.
this came when
of all
climax
Ja-
stated,
you
knows
difference be-
psychiatrist
This
testified.
cobsen
wrong;
right and
does
have
tween
defendant
for the
witness
called as a
capacity
to adhere
mental
the court:
on examination
testified
if
?
right,
he desires
Doctor,
your
I believe
“The Court:
does,
say
your
“A.
I
that he
would
psycho-
was—constitutional
diagnosis
Honor.
personality.
pathic
working
“The Court:
Is
under
right.
is
That
“A.
impulse
any uncontrollable
?
your finding,
isWhat
“The Court:
(cid:127)
(cid:127)
“A. No.”
psychosis?
without
psychosis'
psychosis.
testimony
Without
“A.
doctor’s
The whole
indi-
defendant was sane át
cates
time
That,
psychiatric
ais
Court:
“The
and at
time of
homicide
trial.
person is sane?
saying
ofway
Doubtless as defendant’s in doubt court had been pre first
sanity question was when ques
sented, might have submitted jury sanity present to a
tion of the re is no There to consider.
nothing else judge should do
quirement of law that concluded, on such evidence since he
so and offered, doubt of the that no defendant au had the existed he
sanity of defendant As said in motion.
thority overrule offer, because of opinion his original record, to submit
the state of sanity of de present question of was en defendant than more
fendant expressed The defendant to have.
titled instructions such to have
the desire court, accordingly, instructed
given and the the homicide. time insanity at the
on rehearing be and should motion denied so ordered.
It is LUJAN,
COMPTON, J., and SAD- C. KIKER, JJ., concur.
LER, McGHEE