MIERA V. TERRITORY, 1905-NMSC-022, 13
N.M. 192, 81 P. 586 (S. Ct. 1905)
ANDRES CORCINIO MIERA, Appellant,
vs.
THE TERRITORY OF NEW MEXICO, Appellee
SUPREME COURT OF NEW MEXICO
1905-NMSC-022, 13 N.M. 192, 81 P. 586
Appeal from the District Court of Dona
Ana County, before Frank W. Parker, Associate Justice.
1. This court cannot assume that the defendant did not have a
trial by an impartial jury, to which he was entitled under the Sixth Amendment of
the Constitution of the United States, and Section 3756 of the Compiled Laws of
New Mexico, because those summoned as talesmen to complete the panel from which
the trial jury was selected, included a smaller percentage of men of the
defendant's race than the district from which they were selected contained, or
because persons of the defendant's race living in the immediate vicinity of the
court house in which the trial took place and who were legally qualified for
jury duty were not selected, while some of another race living at much greater
distance were selected and summoned to complete the panel.
2. The allegation in behalf of the defendant that there was
discrimination against those of his race in the selection of the panel from
which the jury for his trial was made up was in violation of the Fourteenth
Amendment of the Constitution of the United States, was not sustained by any
evidence introduced or tendered.
3. An experienced physician who held an inquest on the body
of the woman with whose murder the defendant was charged was properly permitted
to testify that, in his opinion she could not have inflicted on herself the
wound of which she died, and that she was sitting down when the shot was fired.
4. Evidence of an assault with a pistol by the defendant on
the woman with whose murder he was charged, made about three years prior to her
death, was properly admitted.
4. It was not error to give the jury the entire statute
description of murder in the third degree, although a portion of it could, on the
evidence, have no relevancy to the case at bar.
5. The jury was properly instructed that the remarks of
counsel were not to be regarded as evidence and that their verdict must be
founded solely on the evidence and the law as given by the court.
6. Expressions used in instructions to juries should be
considered as qualified by the context and other instructions.
7. Courts are not bound to give instructions, which, even if
correct, are merely cumulative.
The facts appear in the opinion.
Long & Fort, for appellant.
A fair and impartial jury is the right of
a defendant in a criminal cause and if by reason of any practice whatever he is
deprived of that right a court of review should see to it that his right is
protected.
Stauder v. West Virginia, 100 U.S.
303; Neal v. Delaware, 103 U.S. 370; Virginia v. Rives, 100 U.S. 314.
In order that all theories of the case
upon which evidence was introduced might be kept in view by the jury, the court
should have instructed the jury that if the circumstantial evidence in favor of
the defendant raised in the mind of the jury a reasonable doubt as to his
guilt, that he should be acquitted. The jury should also have been told that
the alleged facts and circumstances must be such as to be absolutely incompatible
on any reasonable hypothesis with the innocence of the defendant.
Sackets Instructions to Juries, p.
639.
George W. Prichard, Solicitor General,
for appellee.
The degree of murder is a question of
fact for the jury to determine, where the degree depends upon the presence or
absence of malice, deliberation, heat of passion, or design or want of design
to take life.
Parish v. State, 18 Neb. 405;
People v. Convoy, 97 N.Y. 62; Adams v. State, 29 Ohio 412; Commonwealth v.
Sheets, 197 Pa. 69.
Where there is no eye witness to the
killing of the deceased it is the duty of the court to instruct the jury in the
third degree.
Territory v. Friday, 8 N.M. 204;
Territory v. Aguilar, 8 N.M. 996; Territory v. Padilla, 8 N.M. 510.
Abbott, J. Edward A. Mann, A. J., John R.
McFie, A. J., Wm. H. Pope, A. J., Frank W. Parker, A. J., concur. Mills, C. J.,
having decided the case in the court below took no part in this decision.
{*195} OPINION OF THE
COURT.
{1} At the March term, A. D.,
1904, of the district court for Union county, the defendant was found guilty of
murder in the third degree by a jury, and, subsequently, after a motion for a
new trial had been overruled, was sentenced to imprisonment for ten years in
the penitentiary. The case is before us on appeal.
{2} Before the jury for the
trial of the case was completed, the regular panel was exhausted and a special
precept was issued by the court to secure talesmen, as provided by law. The
attorneys for appellant allege that in securing the talesmen under that
precept, fewer "Mexicans" and more "Americans," as they are
described in their brief, were included than could have been the case, unless
such discrimination had been intended, and they claim that it was intentional
and was for the purpose of preventing the defendant from being tried by a jury
made up almost wholly of men of his own race, he being a Mexican, as would have
been the case if it had been selected proportionately from the members of the two
races living in the vicinity and liable to jury duty. Such a discrimination, it
is alleged, is in violation, not only of Section 3756 of the Compiled Laws of
the Territory of New Mexico, which declares the right to trial by an
"impartial jury," but of the Sixth Amendment of the Constitution of
the United States, which guarantees the same right, and the Fourteenth
Amendment, which forbids what is known as class legislation.
{3} Assuming, as counsel on
both sides seem to have done, that the prohibitions in the first clause of the
Fourteenth Amendment, which are in terms directed to states, are equally
applicable to territories, although territorial legislation is subject to the
approval of Congress and the chief executive, and judicial officers of territories
are appointed by the president, we do not find that any violation of its
provisions was established as claimed in behalf of the appellant. In an
affidavit filed by him he alleged certain facts which he said showed
discrimination against "Mexicans" and in favor of
"Americans" in the making of the panel but he did not state {*196} that the alleged discrimination was
because those not selected were "Mexicans" or because those selected
were "Americans." The appellant tendered no proof of his charge of
discrimination which was rejected and indeed no evidence whatever, except two
affidavits not including his own. His affidavit could not be treated as
evidence. Smith v. Mississippi, 162 U.S. 565, 40 L. Ed. 1075, 16 S. Ct. 904.
{4} But even if all the
allegations in his affidavit and in the two others filed in his behalf be
considered as proved they do not establish unlawful discrimination. There may
have been good and lawful reason for the course taken as suggested further on
in this opinion.
{5} It remains, then, to be
determined, in this branch of the case, whether the defendant was prevented
from having a trial by a fair and impartial jury in the way he charges, for, to
such a trial he was unquestionably entitled.
{6} It is claimed in his
behalf that he was under the practical necessity of exhausting the peremptory
challenges to which he was entitled, on Americans, and so had none left for
members of his own race, whom he might otherwise have challenged. We cannot
assume that either the defendant's reliance on Mexiacns, or his distrust of
Americans, was well founded, that members of either race, who are all units of
our great composite nationality, made up of almost all races of men, would be
so regardless of their sworn obligation as to permit race prejudice to sway
them for or against their fellow-being on trial for his life before them. Even
if we made that assumption it would be impossible for this court, sitting as a
court of law, to determine from the materials before it, whether any such
discrimination as the appellant charges, was actually attempted, since other
reasons than those suggested might have led to the preponderance of Americans
summoned on the special venire. The record of the trial discloses at least one
reasonable ground for the course the appellant says the jury commissioners took
in selecting American talesmen from a distance, instead of Mexicans from the
immediate neighborhood. It appeared that the trial took place in the community
where the woman met her death, that some of the witnesses against the accused
were nearly related to her, and that {*197} some
who testified in his behalf were nearly related to him. It may well have been
that one or both had other relatives in the vicinity, and that they took sides
with reference to the matter, as did the witnesses at the trial. Many Mexicans
in the neighborhood may, naturally, have been disqualified to serve for that
and similar reasons, since the woman's death and the arrest of the defendant on
the charge of killing her must have aroused intense feeling, not only among
their relatives, but among the friends and acquaintances of each, and
especially those of their own race. Besides, it is difficult to perceive what
advantage would have accrued to him if the jury had been composed, even wholly,
of his own race. The woman with whose murder he was charged, was of the same
race, judging from her name, and it could hardly be that Americans would be
less likely than Mexicans to desire the punishment of any one proved to have
taken her life. In fact, the jury seemed finally to have been made up of seven
Mexicans and five Americans, and as unanimity was essential to a verdict, it
cannot reasonably be claimed that the seven were unwillingly brought to an
agreement by the five.
{7} The appellant excepted to
much of the evidence admitted and to the exclusion of much that was not
admitted, to the instructions given and to the refusal to give thirty
instructions requested; but we do not think it necessary to deal specifically
with more than a few of these exceptions.
{8} Doctor Slack, who
conducted the inquest, after describing the wound which he said caused the
death of Mrs. Vigil, and the position in which he found the body, was permitted
to give his opinion, that she was sitting down when the bullet was fired which
caused her death, and that it would have been impossible for her to have fired
it. We are aware that there are many decisions against the admissibility of
such evidence, especially that bearing on the question whether the wound
causing death was self inflicted. It has often been excluded on the ground that
it was matter of common knowledge and that after obtaining the facts from the
testimony, the opinion of the jury, based on them, would be as reliable as that
of a physician.
{*198} But we are unable
to subscribe to that view, especially as applied to the case at bar.
{9} Opinion evidence is not,
in its nature, so distinct from and inferior to what is usually termed direct
evidence, as it is, perhaps, commonly assumed to be. The learned author of Bishop's
New Criminal Proceduce, says, in Section 1073 of that work: "One stating
an occurrence in his presence, whatever his form of words, tells us only the
opinions he derived from the sensations he felt; he could know nothing
more." And in Section 1177: "Opinion * * * is the foundation of all
evidence. Even what we term direct proof is, when truly viewed, but the
witness' opinion of the source of what he has felt in the organs of
sense." In the last analysis, therefore, all testimony may fairly be
termed opinion evidence, and the court may properly act on the familiar
principle that the best evidence should be offered. Unquestionably, in many
cases, so-called opinion evidence would be more helpful than any direct
testimony obtainable, and that for two reasons: First. It may be the testimony
of one to whose sight, hearing or other senses, has been presented that which
cannot be reproduced to the jury. It is said in opposition to the admission of
such testimony that the facts should be stated to the jury and the opinion
formed by it. But not even the great masters of literature have been able to
put in words precisely what they saw; still less what was apprehended by their
other senses. There remains always something which eludes expression. In
recognition of this truism courts have permitted witnesses to state their
opinions with regard to sounds, their character, from what they proceed and the
direction from which they seem to come; State v. Shinborn, 46 N.H. 497;
Commonwealth v. Pope, 103 Mass. 440; Commonwealth v. Dorsey, 103 Mass. 412; as
to resemblance of foot tracks; Hotchkiss v. Germania Ins. Co., 5 Hun 90;
whether a person's conduct was insulting; Raisler v. Springer, 38 Ala. 703, and
where noisome odors render a dwelling uncomfortable; Kearney v. Farrell, 28
Conn. 317. Quoting these and other decisions, with approval, Field J., said, in
Hopt v. Utah, 120 U.S. 430, 30 L. Ed. 708, 7 S. Ct. 614: "Upon the same
principle the testimony of the physician as to the direction from
{*199} which the blow was delivered was
admissible. It was a conclusion of fact which he would naturally draw from the
wound. It was not expert testimony in the strict sense of the term, but a
statement of a conclusion of fact, such as men who use their senses, constantly
draw from what they see and hear in the daily concerns of life." Similar
evidence was admitted in Bram v. United States, 168 U.S. 532, 42 L. Ed. 568, 18
S. Ct. 183. In Everett v. State, 62 Ga. 65, the opinion of a person of
experience, but not a physician, was admitted on the question whether death was
self inflicted.
{10} Second. The opinion
offered may be that of a person qualified by study or experience, or both, to
understand and explain the subject under consideration, commonly termed an
expert. The opinions of such witnesses are taken in all courts on a great
variety of subjects, but not usually on the question whether death was
self-inflicted.
{11} In State v. Lee, 65
Conn. 265, 30 A. 1110 (1894), however, and in Commonwealth v. Leach, 156 Mass.
99, 30 N.E. 163, the testimony of a physician was admitted on that point, but
in each of those instances the wound testified of was in the uterus to procure
abortion, and it might be said that if it had been an outward wound, open to
common observation, the testimony would have been rejected. That objection, it
seems to us, goes to the weight and not to the admissibility of such testimony.
Physicians have been allowed to testify that sexual intercourse was highly
improbable, if not impossible, between a man and a woman in a buggy, which was
described to the jury; People v. Clark, 33 Mich. 112; that such intercourse by
force was impossible with a woman seated in a rocking chair, which was shown to
the jury; State v. Perry, 41 W. Va. 641, 24 S.E. 634; and that it was impossible
in a winding stairway, which was described to the jury; McMurrin v. Rigby, 80
Iowa 322, 45 N.W. 877. Certainly it cannot be claimed that wounds causing death
are more a matter of common knowledge than the act to which the human race owes
its continuance.
{12} In 41 W. Va. 641, 24
S.E. 634, supra., the admission of the testimony in question was put expressly,
and in the other cases cited, impliedly, on the ground that the witnesses
"had made the human system, including its joints and organs,
{*200} the subject of peculiar study, such as
a jury would be unable to give in the short time allowed them in the
examination of the evidence, and thus (could) assist them in arriving at a just
conclusion." Precisely that kind of research would qualify one to determine
better than an ordinary person could do, whether a wound could have been
self-inflicted.
{13} In the case at bar, the
testimony of Dr. Slack was not only that of one who had seen the body of the
dead woman lying as it fell over, after the fatal shot, the character and slope
of the ground where the shooting occurred, and the wound itself, none of which
things were seen by the jury or could be precisely described to them, but it
was also the testimony of a physician of long experience, who has held inquests
in nineteen cases in which death resulted from gun-shot wounds. To exclude such
testimony is to hold that the opinion of a jury, based on evidence necessarily
incomplete, is preferable to that of a man of learning and experience, who has
seen and touched that of which he speaks. The ground on which such testimony
should be admitted is well stated in Taylor v. Town of Monroe, 43 Conn. 36, in
these words: "The true test of the admissibility of such testimony is not
whether the subject matter is common or uncommon, * * * but whether the
witnesses offered as experts have any peculiar knowledge or experience not
common to the world, which renders their opinions founded on such knowledge or
experience, any aid to the court or jury in determining the questions at
issue."
{14} The value of the opinion
of Dr. Slack it was, of course, for the jury to determine. If it preferred to
form and adopt an opinion of its own on the other evidence given, it was quite
at liberty to do so.
{15} Evidence that on a
certain occasion about three years before Mrs. Vigil's death, the defendant
threatened her life with a pistol because, as he alleged, she was receiving the
visits of another man, was properly submitted to show the relations of the
parties and his disposition toward her when excited by jealousy.
{16} In their brief the
attorneys for appellant lay special stress on the fact that the court in its
instructions as to
{*201} what
constituted murder in the third degree, used substantially the statute
description including "culpable negligence" as one of the elements
which might render one guilty of such a charge. Culpable negligence, it is
urged, could not, on the evidence, have played any part in the death of Mrs.
Vigil. We think that the jury could not have been led to suppose, from the
instruction given that they were at liberty to find that her death resulted
from the culpable negligence of the defendant, and that it was not error to
give the statute description of the crime charged in full. Territory v. Edie,
6
N.M. 555,
30 P. 851.
{17} The instruction that the
remarks of counsel were not to be regarded as evidence, and that the verdict
must be found solely on the evidence presented and the law as given by the
court, was correct. It left the jury at liberty to give such weight as they
might think proper to the arguments of counsel in explaining and interpreting
the evidence, but not to regard them as actual evidence.
{18} The other exceptions
discussed in the brief for the appellant relate to particular expressions which
occur in the instructions to the jury, which apart from the context would
possibly be open to objection; but taken in connection with the other
instructions as they were given, were not erroneous.
{19} We find no error in the
instructions given, and none in the refusal to give all or any of the
instructions asked for by the appellant. After instructions have been given
properly covering every point in the case, it is not the duty of the court to
add further instructions at the request of counsel. Such a course would tend to
confuse the jury and distract attention from the facts on which they must pass.