Territory of New Mexico v. Archuleta, 16 N.M. 219

Territory of New Mexico v. Archuleta

16 N.M. 219 | N.M. | 1911

OPINION OP THE COURT.

ABBOTT, J.

1 The first alleged error discussed in the briefs is that a witness for the Territory, who had testified as to what occurred at the house of ill-fame between the appellant and Carmody, should have been allowed, against objection, to answer the question put to him on re-cross examination: “Had there not been a breach of the peace committed prior to that time down at the house of the woman of ill-fame, in which a deadly weapon had been discharged, and from which breach of the peace the guilty man had gone away armed and was still armed?” The ground of objection was not specified by the attorney for the Territory, but it is clear that the question called for the opinion of the witness as to the guilt of the person referred to in the question, and was objectionable on that ground, if no other.

2 The second assignment of error is that a witness for the Territory was permitted, against objection, to answer the question whether or not the appellant "had a pistol drawn on Carmody” at the moment when he told the latter to give him his' gun. No ground of objection was stated at the time, and for that reason we cannot, as this court has many times held, properly review the action of the court in overruling it, but even if we could, the ground now assigned, that it called for an expression of opinion by the witness is untenable. The meaning of the question fully expressed was: Did he have his pistol in his hand pointed at Carmody? And the answer to that involved no expression of opinion beyond what is ordinarily found in statements as to what a witness has seen. If it had then been objected that the question was leading, the court might have required it to be put in different form, biit it does not appear that any such objection was made.

The other assignment of error relating to the admission and exclusion of testimony, are not based on anything in the record which affords ground for the argument in relation to them in the brief for the appellant.

3 An assignment of error of a more serious nature is that which concerns the omission of the trial court to instruct the jury on manslaughter. It is hot shown by the record we have that any objection was made at the time to this omission, or any request made to instruct on that point. But, even if that had been done, the evidence is'not such as to warrant an instruction that the jury could properly find the defendant guilty of manslaughter. The evidence made it clear that he did not kill Carmody “upon a sudden quarrel, or in the heat of passion,” or '“in the commission of an unlawful act not amounting to a felony,” or “of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection,” so as to make the act “manslaughter,” as defined in Chapter 36, Laws of 1907, People v. Turley, 50 Cal. 469; Allen v. United States, 164 U. S. 492, 496. If the court had instructed that the defendant could be convicted of manslaughter on the .evidence and the jury had found him guilty of that crime, there would probably been a reversal by this court. Territory v. Hendricks, 13 N. M. 311; Territory v. Clark, 99 Pac. 697; Territory v. Fewel, 5 N. M. 43-4. The judgment of the District Court is affirmed.