14 N.M. 147 | N.M. | 1907
OPINION OP THE COURT.
The appellant was indicted on April 11th, 1905, charged with the murder of Antonia Carrillo de Mirabal on April 3rd, 1905, was tried on May 3rd, 1905, convicted of murder in the first degree, and on May 5th 1905, was sentenced to death.
4. Appellant complains of the admission of an alleged confession by him as to the homicide. The form in which the same was introduced is as follows: Jose Gonzales, the deputy sheriff who made the arrest of appellant, testified that he ordered appellant to surrender and he replied that he would not; that he then ordered the posse to fire at appellant which was done; that witness thought he heard appellant groan and then ordered the posse to cease firing; that appellant then said not to shoot, that he would surrender; that witness then ordered appellant to get up and throw up his hands which he did; that when within about six yards from witness appellant dropped one of his hands and witness told him to again raise it or he would shoot appellant. Witness then testified: “I told him I was sorry for having shot at him; then he told me that he had killed the woman— (objection by counsel for appellant. Objection overruled)). Then he said that he had killed a woman; I says to him, I came to arrest you because you have killed a woman, and he says, yes, I killed her”. Objection was here interposed as follows: “We object to that and ask to have it stricken out, as no foundation has been laid for any admission on the part of defendant”. The objection and motion were over-ruled. From this point of arrest appellant was taken to near the body of the deceased when the witness said: “At that time there was a great many people there; I don’t Imow who they were; and I stopped them, and took' Estolano Sanches, Eob Hart and Bob Brady and went to where the deceased was. Then some one struck a match, I think it was Bob Hart —I was behind him. When they struck that match then I asked him if that was the woman he had killed — (objected to by counsel for defendant on the ground that tha ■circumstances show that the statement was made when the defendant was put in fear. Over-ruled.) Then he says, yes.” Another witness, Bobert Brady, testified as follows: “Then Jose Gonzales says to Bosario, This is the woman that yon, have killed. (Objected to for the same reason heretofore mentioned. Overruled.) He says no. Then Jose Gonzales says to him again. Didn’t you just tell me that you had killed' her ? Then he says, yes, this is the one that I killed.” The same witness testified concerning the circumstances of the arrest: “Then he says to me, If I hadn’t recognized you by the voice none of these s-s of b-s would have got me.”
The fundamental principle upon which confessions have been excluded when induced by promises or threats, hope or fear, is that, under such circumstances, the temptation to speak falsely is so great as to render the statement entirely untrustworthy. Wigmore on Evidence, Sec. '822; 3 Ency. Ev. 328.
Another principle of exclusion is established by the highest court in the land, viz: That that portion of the fifth amendment to the Constitution of the Hnited States which provides that no person “Shall be compelled in any criminal case to be a witness against himself”, excludes involuntary confessions. Bram v. U. S., 168 U. S. 532.
These two principles of rules of exclusion are widely different in character and effect. Thus, under the former, the object is to exclude statements which are false. Under the latter the object may be to exclude statement •' ;uch are true. Wigmore on Evidence, Sec. 823.
But under either of these rules, are the statements ■objectionable ?
7. Appellant complains of the action of the court in overruling the motion for a new trial. The motion after setting up the alleged errors complained of oceuring at the trial, set up the disqualifications of one of the jurors who tried the case. This ground of the motion was supported by -the affidavits of three persons to the - effect that shortly before the selection of the juror he expressed to the affiants that he had formed and expressed an opinion as to the guilt of defendant and could not serve as a juror; that defendant should have been hanged before he was taken to jail. Defendant also made affidavit that he first learned of this fact after verdict. No affidavit of his counsel was presented showing the same lack of knowedge on their part.
The rule is the same in Federal Courts. Mattox v. United States, 146 U. S. 140; Alexander v. United States, 57 Fed. 828.
This court has in a considerable number of cases passed upon the question of power to review the action of the District Court resting in discretion. In,several the power has been denied and in some the power has been admitted where there has been an abuse of discretion. The cases are here collected: U. S. v. Lewis, 2 N. M. 459; Coleman v. Bell, 4 N. M. 21; Sanchez v. Candelaria, 5 N. M. 400; Territory v. Las Vegas Grant, 6 N. M. 87; U. S. v. De Amador, 6 N. M. 163; Buntz v. Lucero, 7 N. M. 219; Roper v. Territory, 7 N. M. 255; Railroad Company v. Saxton, 7 N. M. 302; Thomas v. McCormick, 1 N. M. 369; Territory v. McFarlane, 4 N. M.421; Territory v. Kelly, 2 N.M. 292; Faulkner v. Territory, 6 N. M. 464; Lockhart v. Woolacott, 8 N. M. 21; Territory v. Barnett, 8 N. M. 70; Garcia v. Candelaria, 9 N. M. 374; Schofield v. Territory, 9 N. M. 526; Ins. Co. v. Perrin & Co., 10 N. M. 90.
In all of these eases the discretion of the lower court in matters of this kind is admitted but in some of .them what is called an. abuse of discretion is allowed as ground for reversal. But most of the latter cases, some of them capital cases, deny the power of this court in such matters. The latter is the correct rule.
Q. Then as I understand you have formed or expressed an opinion from what you have heard as to the guilt or innocence of this defendant?
A. Yes, sir.
Q. Is that opinion with you still ?
A. Yes, sir.
Q. Now if the evidence in this case was fairly and evenly balanced for and against this defendant, would what you have heard have any influence on your mind in making up your verdict?
A. No, sir.
Q. Are you certain of that?
A. Yes, sir.
Q. Think over the meaning of this question?
A.’ I think I understand it.
Q. If the evidence was fairly evenly balanced between the Territory and the defendant would what you have heaid have any effect upon you in making up your verdict as to whether the defendant was guilty or innocent?
A. It would not.
Q. Are you certain of that?
A. Yes, sir.
Q. Well under these circumstances — of having heard about this case and having formed an opinion — do you feel that yen could honestly sit in this jury box and try this, defendant from the evidence and the charge of the court here, regardless of what you have heard?
A. I dont’ think it would have any influence.
Q. You say you don’t think so?
A. I am sure.
Q. You are sure of it?
A. Yes, sir.
Q. Have you ever tried yourself?
A. I have studied the matter out pretty closely; I have never been on a jury. I think it is a juryman’s duty to try the case according to the law and the evidence.
Q. . The point is, that having heard about the case, and having formed an opinion as to the guilt or innocence of the defendant. Now, the question is, after you have heard the evidence, and it was fairly evenly balanced up, would that opinion have ány influence on your mind as to what you would do in rendering your verdict?
A. My position is this, Mr. Barber, thax an opinion that I have formed on hearsay evidence would not affect me after I had heard the evidence on the trial.
Q. Would it require evidence to remove thisi opinion that you have? <
A. Of course if I should not hear any evidence I would still hav,e the opinion.
Q. Then it would require evidence to remove that opinion that you have ? •
A.- -Yes, sir. ■
Hpon re-direct examination the witness stated:
Q. Now this opinion that you have formed doesn’t have any weight with you after you have taken your oath to try this case, does it?
A. No, sir; no weight whatever.
Examination by the Court:
Q. And you think that any opinion or impression • that you might have formed in your mind — that you can sit and" try this case and' give this defendant a fair and impartial trial upon the law and thé evidence?
A. ■ I do: Yes, sir. '
It appears that E. ,.M- 'Crocket, the affiant in support of the motion, was a member of the regular panel of the jury and was excused by the prosecution, presumably, by reason of his having talked about the case with a member of the family of the defendant, as appears from the record of his examination. As to who and what the other two affiants in support of the motion were, the record is silent. It thus appears that a question of fact was presented to the Trial Court as to- whether the allegations set up in the motion were true in fact, and whether, if true in fact, they disqualified the juror. He saw and presumably knew the juror and affiants and was in a better position to find the truth than anyone else. He may hava disbelieved the affidavits by reason of the intimacy disclosed between one of the affiants and the family of the defendant, or by reason of the character and standing of the affiants. He may have believed the juror by reason of his standing and character. On the other hand, he may have believed the fact of the alleged statement of the juror to the affiant and have believed the statement to have been made in a suppositious or tentative way and assuming the hearsay or rumor upon which the statement was founded to be true. The real question was, whether the juror was, a fair and impartial juror willing and capable to be guided solely by the evidence and the court found that he was. It is impossible for-us to put with what the record contains the additional and most important consideration viz: The character, standing and demeanor of the parties, and which the court had before it when it acted. We cannot say therefore that the court was wrong in its conclusion.
8. While the disqualification of the juror on his own statements is not argued in the briefs, we assume that the question is before us, he having been challenged for cause and the challenge overruled, and the defendant having exhausted all of his challenges when the jury was sworn.
A discussion of what constitutes a disqualification of a juror by reason of any opinion as to the merits of a criminal case is much narrowed by a controlling authority. Spies v. Illinois, 123 U. S. 131.
The Constitutional Guaranty is that in all criminal prosecutions the accused shall enjoy the right to a trial by an impartial jury, and is contained in Article Six of the Federal Constitution.
In Illinois a statute was in force to the effect that although a juryman may have formed an opinion based upon rumor or upon newspaper statements he was still qualified as a juror if he stated that he could fairly and impartially render a verdict in accordance with the law and the evidence. In the Spies case not only this law was attacked but the disqualification of two of the jurors who tried the case was challenged upon- the ground that the defendant’s constitutional rights were thereby invaded. The Supreme Court in that case, agreeing with the Supreme Court of Illinois, held both that the statute was constitutional and that the jurors who qualified thereunder were fair and impartial within the meaning of the Consti-tional Guaranty.
' And in this case while the juror had heard by means of public rumor what the facts purported to be in this case, yet he clearly and unequivoealy stated that he could and would lay aside his opinion thus formed and try the defendant fairly and impartially upon the evidence as it was produced in the Trial Court, and he was consequently a qualified juror.
The defense in the case is that deceased committed suicide, by shooting herself, and the defendant testified to the details of such alleged suicide. It was a physical impossibility for deceased to have fired more than one-of the shots. When all the facts and circumstances are seen and examined it at once appears that the proof of the-defendant’s guilt is simpfy overwhelming and that the defense set up by him is absurd and preposterous. To- grant., a new trial in this case would be to pervert the law and render its attempted enforcement a farce.
The judgment of the court' below will therefore be affirmed and Friday, March 22, 1907, is hereby designated and fixed as the day on which the said judgment shall be-carried into execution and it i-s so ordered.