8 N.M. 510 | N.M. | 1896
Lead Opinion
The appellant, Jose Padilla, was convicted of murder in the first degree in the district court of the county of San Miguel. Motions for new trial and in arrest of judgment being overruled, appellant was sentenced to death; and from this judgment this case is here on appeal, a bill of exceptions being duly allowed.
By the instruction of murder in the, first degree alone, the court must have assumed, which the defendant denied, that there was hostility existing between him and the deceased, that when he left, following on the trail deceased had just taken, he did it from a premeditated design to take the life of deceased; and that, at all events, when the killing actually took place it was not in the heat of passion, or in other ways, so as to make the offense of a lower degree, or even justifiable of excusable homicide. It was for the jury to say whether there was a motive existing in defendant’s mind which'would make him seek the life of deceased. It was also for the jury to say whether the defendant, in following the trail deceased had taken shortly before, was pursuing deceased with the intention of killing him, or if his doing so was merely-a'coincidence. If they had disbelieved the testimony as to motive, they might also have reached the conclusion that defendant was not pursuing deceased for the purpose of killing him. It was for the jury to judge of the credibility of the witnesses as to these matters, and then, having done that, to say what weight should be given to the circumstance that defendant had, with a gun in his hand, gone up the same trail which the deceased had taken. Surely, if the jury had discarded the evidence as to motive, it would have been no great step for .them to have reached the conclusion that the prosecution had not established beyond a- reasonable doubt the ingredients which make a case of murder in the first degree.
We go further, however, and say that, admitting the motive to have been proven, that defendant saw the deceased go up the trail, and followed after him with a gun, with a deliberate and premeditated design unlawfully and maliciously to effect his death, — yet, with no eyewitness of the homicide, it is not necessarily shown that it was so accomplished. It is not the intent of the mind that the law regards as criminal, but it is the overt act flowing from that intent. There is no question but that a verdict of murder in the first degree would be supported by the evidence that defendant was hostile to deceased, that he follo’wed after him with a gun, that a shot was heard, and the deceased was killed from the effect of a bullet in his body, as there would be circumstances tending to show deliberation and premeditation; but, before arriving at such a verdict, it was necessary for the jury to believe beyond a reasonable doubt that no sudden quarrel arose, and that deceased'was killed in the heat of passion, without design to effect death, or that defendant did not kill deceased in any other of the ways constituting murder*in the second degree, and that it was not done by the culpable negligence of defendant, and that it was .not done under such circumstances as constitute excusable or justifiable homicide, as defined by the first paragraph of section 692 and section 693, Compiled Laws, New Mexico, 1884.
We have said this much as to this homicide, not as desiring again to go over .this matter, so exhaustively discussed, as the writer believes, in the opinion of Justice Hamilton in Territory v. Aguilar, supra, but only because this ease differs from that, in that the kind of weapon used there, and the way death was effected, precluded the idea of death by culpable negligence, or by accident or misfortune, as described in section 693, supra. The cardinal distinction between all homicides not shown by eyewitnesses, and homicides where the killing is shown by eyewitnesses, is that as t<? the former class the jury must weigh the circumstances, and determine what degree of murder is proven, while as to the latter the court may instruct the jury as to a single degree, or two degrees, or all the degrees, as, or not, the evidence may be applicable to one or more degrees. If the secret killing were shown to be by poison or torture, or necessarily in the commission of, or attempt to commit, a felony, or by lying’in wait, then, also, even, in cases of circumstantial evidence, the court may restrict instructions to first degree. If the rule were that every secret homicide presumes murder in the first degree, then the slayer of a man whose body is found pierced by bullets, having in its hand a weapon recently discharged, is placed in the same category as he who has slain unseen a defenseless woman, whose polluted, corpse bears evidence of the utmost atrocity. Such a rule is not reconcilable with reason, of which law should be the perfection; and the only escape from it is for the jury, and not the judge, to weigh all the circumstances which may satisfy their minds as to how the secret killing may have been effected, and determine the degree of the slayer’s gjiilt.
As this case goes back for new trial, we consider it well to notice one or two of the other assignments pressed upon us.
It is complained that the trial judge failed to give, a requested instruction as to circumstantial evidence. There was an instruction as to this in the charge of the court, but in our opinion the plaintiff in error was entitled to have had more distinctly stated to the jury, than was done in the court’s own instruction, the request made, which is as follows: “In a case of circumstantial evidence, the evidence against the accused must be such as to exclude, beyond a reasonable doubt, every hypothesis or theory other than that he is guilty as charged; and if their remains in the case, all the evidence considered^any reasonable theory, arising out of the evidence, which raises in the mind of the jury a reasonable uncertainty of defendant’s guilt, such a state of evidence would justify an acquittal.” We think the court’s instruction did not fully advise the jury as to the exclusion of every reasonable theory other than that of guilt, and that its general statement — while sufficient in the absence of a special request — while not, in our opinion, reversible error, was not all the plaintiff in error was entitled to.
It is complained also that the court did not fully advise the jury, by definitions of terms used by the statute, as to what was meant by the degree of murder, to which their attention was confined. As, in the retrial of this case, it will (if defense is made as in the record before us) be necessary to instruct as to all the degrees, and as to justifiable and excusable homicide as well, this error can not be expected to recur. Wherefore it is considered that this cause be reversed, and remanded for a new trial.
Concurrence Opinion
(concurring). — We fully concur in the opinion of Justice Collier in this case, except as to that portion which holds that a nonexpert may not state his opinion or conclusion as to the sanity or insanity of a person whose mental soundness or capacity is under consideration. When a nonexpert is shown to be qualified, by reason of opportunity for knowing and observing the person under investigation, he may not only state what he has observed in the conversation or conduct of such person tending to indicate his mental condition, but the nonexpert may also state his conclusion or opinion as to the ultimate fact, founded as it is or may be upon a series of facts more or less symptomatic, and not susceptible of intelligent narration. When a witness testifies that a person appeared to be angry or sick, he states a conclusion or opinion based upon a number of symptomatic facts which could not be adequately detailed so as to photograph to the jury the same impression which they made upon the mind of the observer when they were seen, and the statement of the conclusion can alone describe the facts seen. The case in Massachusetts gives many illustrations of this rule, and it is now well established that the same rule is applicable to a nonexpert, as in the case at bar. Upon this subject Mr. Greenleaf says: “But where the witness has had opportunity for knowing and observing the conversation, conduct, and manner of persons whose sanity is in question, it has been held, upon grave consideration, that the witness may depose, not only to particular facts, but to the opinion or belief as to the sanity of the party, formed from such actual observation;” “that nonexperts, who have had opportunities to observe a person, may give their opinion of his sanity, at the same time stating their reasons, and the facts observed upon which they based their opinion.” 1 Greenl. Ev. [4 Ed.] 532; Whart. Cr. Ev. [9 Ed.], secs. 417, 458, 460.