11 N.M. 367 | N.M. | 1902
OPINION OP THE COURT.
The rule requiring that errors relied on, on appeal, should be separately pointed out before they will be considered by the appellate court is a wise one, for an attorney, who has tried a case is familiar with all of the facts and points raised on the trial, while it is practically impossible for this court to search through the entire record with the view of ferreting out what errors, if any, have been committed on the trial.
Just wha.t the counsel for the appellant was saying to the jury at the time the court made this remark does not appear in the record, although in the written opinion filed by the learned judge who tried the case below, in overruling the motion for a new trial, it appears that the counsel for the defendant in summing up, stated to the jury that at the time defendant fired the shot, the deceased had turned round, with his back towards defendant, while attempting to load his gun. Counsel taking an attitude before the jury, and illustrating how it supposedly occurred.
This statute we think relates entirely to instructions which are given by the court, and was intended no doubt to change the practice which exists in the- United States courts, Avhere the judge in giving his instructions, is allowed to comment freely on the evidence, and point-out to the jury such parts of it as he thinks is entitled to consideration at their hands. We do not think that it was intended to prohibit the court from calling the attention of counsel, when they were addressing the jury, to any inaccuracies or misstatements which may inadvertently have crept into their remarks. It is a well-settled rule that counsel in addressing juries must keep strictly to the facts (State v. Comstock, 20 Kan. 655), and they have no- right to state to the jury as facts, matters which the evidence does not bear out, and if the court thinks that counsel do go- outside of the record in addressing the jury, it is proper for the court to-call their attention to what he thinks the evidence really is, so as to permit counsel to correct themselves. We cannot see that in this case the court did any thing else.
The language used by counsel in áddressing the jury is not disclosed by the record, but it is perfectly evident that he was, or that at least the court thought that he was misleading the jury by a misstatement of the evidence, and believing this, whether mistakenly or not, we think that it was perfectly proper for the court to call the attention of counsel to what he thought really was the evidence. When we say that the court thought that counsel was misleading the jury by a misstatement of the evidence, we do not mean to be understood as intimating that counsel was doing so intentionally, for nothing could be further from our minds, but rather that in his zeal to guard his client’s interests, he inadvertently said something which the court thought was not warranted by the evidence.
In addition it nowhere appears in the record that counsel claimed tp- the court that the evidence in the cause showed otherwise than the court stated to' be, nor that he pointed out to the court any evidence to corroborate his statement to the jury. . We have examined a number of authorities cited by the learned counsel for the appellant in support of his contention, and all of those examined by us, relate to comments made by the court, on the evidence, in the giving of instructions to the jury, and they therefore do not apply to the facts in this case. These assignments therefore point out no error.
We can not see that the'use of the language complained of by the district attorney was such as would justify us in reversing this case. In both the cases of Chacon v. Territory, 7 N. M. 247, and Territory v. Chamberlain, 8 N. M. 524, equally as strong language was used, but this court held1 that the cases should not be reversed therefor. As stated in the case of Chacon v. Territory, supra,, the “trial court enjoys peculiar facilities for observing the propriety of forensic arguments, and its discretion when invoked, should not be interfered with in the absence of obvious or probable injury.”
Let-us examine and see just what did happen. The record says, on page 103, “Be it also remembered that while George W. Pritchard, district attorney, was on behalf of the Territory addressing the jury, in said cause, he made the following remark to the jury in the said argument, to-wit: ‘Gentlemen, the verdict of the people and the community is that the defendant is guilty.’ Upon which statement being made, counsel for defendant addressed the court and excepted to the statement just made by the district attorney, as being improper argumept, and asked the court to have said statement taken from the jury, to which the court stated that the same would be taken from the jury, but court’s statement was not interpreted to the jury nor was anything else stated to the jury by the court.”
Nowhere does the record show that the sentence, alleged to be objectionable, uttered by the district attorney, was ever translated in Spanish and given to the jury, so that, such of them as did not understand the English language would comprehend what was said, and if the words were not so interpreted, and the presumption is, unless the contrary is shown by the record, that all of the acts of the presiding judge during a trial are regular and in accordance with the law. 2 Ency. P. and P., p. 420. Then the expression to which the objection is made, was taken from the jury by the judge himself, or at least it was taken from such of the jury as understood English, and consequently the appellant was not injured in any particular.
The fifth assignment alleges that the court erred in failing to mark the instructions to the jury that were given, “given.”
The record shows that the charge of the court given to the jury in said cause is in the words and figures following and then follow thirty-three instructions which the court gave 'of its own motion.
The purpose of the law requiring each instruction asked for to be marked whether “given” or “refused,” evidently is that counsel shall know just what instructions are given and refused, in order to save trouble on appeals. We have a provision of law, section numbered 2998, Comp. Laws of 1897, which requires that instructions shall be in consecutively numbered paragraphs, but this court held in the case of Miller v. Preston, 4 N. M. 404, that this section is merely directory, and that as no rights of defendant were sacrificed or prejudiced by a failure to number the paragraphs, if such failure is error, it is not such error as will justify a reversal.
The sixth assignment is that the court committed error in failing to mark the instructions asked for by the defendant and refused, “refused.”
A careful examination of the transcript does not show that any instructions asked for by the defendant were not given, and this assignment consequently falls to the ground.
The New Mexico statutes require, section 3425, Compiled Laws of 1897, that “a list of the jurors summoned shall be given to the defendant in all capital cases twenty-four hours before the trial, and in all other cases before the jury is sworn, if required.”
An attempt was made to comply with this provision of law for the record states that the defendant was served with a certified copy of the list of petit jurors. The names in the list so served do not, however, appear, except that on the motion for a new trial, an exhibit is attached which purports to be the certified copy of the list of jurors which was served on appellant. There is in the record no list of the original panel of jurors, and this assignment would have, to be at once overruled on the ground that no variance was shown between the original list of jurors and the copy served on appellant, did not page 18 of the record disclose, in the opinion filed by the trial judge, “that when the list of jurors was prepared for service upon the defendant, two jurors of the same family name were found in the panel, and, by inadvertence, in copying the list, the name of Aliano Cariago was written, instead of the name Aliano Torres.” Appellant’s counsel made no .objection and proceeded to trial without objecting and excepting to the correctness of the list furnished his counsel, and without asking to have a correct list furnished. This is a waiver by the appellant and is tantamount to an acknowledgment that a correct list of the jurors had been served upon him. Had his counsel objected to going to trial until a correct list of jurors had been served upon his client, which objection had been overruled, and an exception saved, and the trial proceeded with, we think that it might have been reversible error, but as no such objection was made or exception saved, and as the error complained of is not jurisdictional, the appellant by having gone to trial without saving exception, and a verdict having been entered, is estopped from raising the point on the motion for a new trial. Haynes v. United States, 9 N. M. 519. This point has been frequently raised in other jurisdictions where the service of a list of the jurors on the defendant is required by statute, and where imperfect lists have been served. The policy of the law in requiring the service of these lists in capital cases, is that the prisoner shall be allowed every facility for making his challenges. This no doubt is greatly promoted by the prisoner having previous knowledge of the names of the persons who are to try him.
The requirements of the statute of the State of Missouri, requiring .service of the list of jurors on the defendant, is certainly as strong as ours, and yet the courts of that State hold that the accused must demand it if he would have it. “It is simply a privilege which the statute extends to the accused for his benefit; and if he does not malee the demand or require the list, he is presumed to have waived it.” State v. Kinger, 46 Mo. 224.
In Arkansas where the list contained an error in the Christian name of one of the jurors, and the prisoner made objection before the jury was empaneled, that tlie list furnished was imperfect, it was held that the court erred in forcing him to trial without furnishing a perfect list. Stewart v. State, 13 Ark. 720. But this has been denied, and the better rule would seem to'be that the trial under such circumstances, may proceed, and, unless some prejudice is shown to have resulted, the judgment will be allowed to stand. Thompson & Merriam on Juries, sec. 117; Goodhue v. People, 94 Ill. 37; State v. Turner, 25 La. Ann. 573; McGarty v. State, 26 Miss. 299; State v. Kane, 32 La. Ann. 999; State v. Dubord, 2 La. Ann. 732; Swofford v. State, 3 Texas App. 76.
The rule as laid down in Illinois is we think the proper one; that a discrepancy between the names as contained on the list furnished and that on the regular panel summoned, which could have been corrected had tbe attention of the court been called to the matter, and from which, no injury resulted, will he deemed mere harmless irregularity. Goodhue v. People, 94 Ill. 37. It does not appear in the motion for the new trial filed in the case, nor in the errors assigned on appeal, that the appellant suffered any injury from the failure to write the proper name in the list of jurors furnished him, and we therefore hold the same to be harmless error.
There is no reversible error in the judgment complained of, and the same is therefore affirmed, and it is so ordered.
