7 N.M. 421 | N.M. | 1894
The defendant in the court below, and appellant here, was indicted by the .grand jury of Socorro county at the May, 1893, term of that court, for murder in the first degree of one Atanasio Vasquez, charging the defendant with having shot and killed the deceased in a saloon at San Marcial, in said county, on the fourth day of July, 1892. At that term the defendant filed his motion for a change of venue from Socorro county, and the motion was granted, and the venue was changed to Lincoln county. At the March, 1894, term of court for that county, the defendant filed a motion and affidavit for a continuance on the nineteenth day of the month and the eighth day of the term, which motion was denied, and the trial was postponed until the twenty-seventh day of that month. The affidavit set out, among other things, the failure on the part of the defendant to secure the attendance of material witnesses in behalf of the defendant. The court thereupon ordered compulsory process to be issued to secure the attendance of the witnesses in behalf of the defendant. On the day set for the trial, it appears that the attendance of some of the witnesses had not been secured, and the defendant renewed his motion and affidavit for a continuance to the next term, which was denied, and he then asked leave to amend his motion, which was also denied by the court. Both parties then announced themselves ready, and the trial proceeded; and, after eight jurors had been accepted and passed for cause, the regular panel became exhausted, and the court drew the names of thirty persons from the jury box, in the manner provided by law, and special venire was issued for the persons whose names were so drawn; and thereupon the defendant filed a motion challenging the array of the regular panel, in which motion it was charged that the jury list had not been revised each year, as required by law. Defendant also filed a motion to require the territory to produce the testimony taken at the preliminary hearing before the justice of the peace, for the inspection of defendant at the trial, both of which motions were denied, to all of which rulings of the court the defendant duly excepted. At the conclusion of the testimony, the court charged the jury fully on the law of murder in the first, second, and third degrees, and as to the form of their verdict in the event that they should find in the first or second degree, but did not charge as to the form of the verdict in the third degree; and the defendant excepted as to the o mission of the co urt to so charge as to the form of the verdict in the third ■degree. The jury found the defendant guilty in the second degree (eight of the jurors recommending the ■defendant to the clemency of the court), and the court passed sentence,“and fixed the punishment at twenty-one years in the penitentiary. These are substantially the facts as they appear from the record before us on the appeal. The record, as presented, is only a skeleton of the proceedings, consisting of the motions for continuance, challenge to the array of the regular panel of the jury, and for the production of the testimony at the preliminary hearing, and the charge of the court to the jury. The record does not contain any of the testimony given on the trial, and was not filed in this court until the fourth day of the term, although the statute requires that it be immediately sent up by the clerk of the lower court. There is no bill of exceptions and no assignment of errors filed with the record in the case, and the case is here on the record as above stated, and this court must pass upon the case from that record only.
It must be remembered that the defendant secured the change of venue from the. county where the crime was committed to a far distant county of his own motion, and in his motion for continuance he charges that the deceased was regarded by the people who knew him as a man of bad character, as dangerous, and a “desperado;” and his object therefore, for removing the trial from Socorro county, could not have been on the ground of a prejudice against him (the defendant) and a bias in favor of the deceased. It must, then, be inferentially presumed, that his object was to delay his trial as long as possible. The inference of this presumption is further borne out from the fact that, so far as the record shows, he made no effort to secure the attendance of the witnesses he desired until within a very few days before the term of court at which his case was coming on for trial, although he knew the long distance from the place of residence of his witnesses to the' place where he had by his change of venue selected for his trial. In fact, the record discloses no diligence on the part of the defendant to warrant the consideration of his motion for continuance. This, as an appellate court, can not be used as a means by which persons charged with crime can escape a speedy and fair trial by a change of venue and motions for continuances until the witnesses depart the jurisdiction of the court by death or otherwise, and the accused thereby evade their just deserts for crime committed in their criminal disregard of human life, and-that, too, on their own oaths, unsupported by any other evidence. It is held here that, when a man shows such a disregard of human life as to commit a willful murder, he will not be permitted-to escape a speedy trial by adding to that the offense of perjury, and that it will not be regarded as an abuse of sound discretion if the trial judge denies a motion for continuance unsupported by other evidence than the ex parte oath of the defendant himself.
The record in cases of this character should disclose all the proceedings in the court below, in order that this court may be able to pass upon the whole case from the record. For the reasons herein given, the court is of the opinion that there is no error in the record sufficient to reverse the case, and the judgment of the court below is therefore affirmed; and it is so ordered.