TERRITORY OF NEW MEXICO V. TORRES, 1911-NMSC-063,
16 N.M. 615, 121 P. 27 (S. Ct. 1911)
TERRITORY OF NEW MEXICO, Appellee,
vs.
SILVESTRE TORRES, Appellant
SUPREME COURT OF NEW MEXICO
1911-NMSC-063, 16 N.M. 615, 121 P. 27
Appeal from the District Court for
Union County, before C. J. Roberts, Associate Justice.
1. Pleas in abatement are dilatory pleas and are subject to
the most technical rules of pleading and the greatest accuracy and precision
are required in framing them.
2. It is not necessarily true that secondary evidence is not
legal evidence.
2. That appellant was subpoenaed and compelled to appear
before the grand jury was not a violation of his constitutional rights, nor is
the fact that he was sworn before such body and there testified to facts that
did not incriminate himself.
4. If appellant was compelled over his protest to be a
witness against himself before the grand jury and was compelled to testify to
matters and things over his protest incriminating or tending to incriminate
himself, it was a direct violation of his constitutional right guaranteed him.
5. The allegations in the plea are at best mere conclusions.
The facts themselves must be stated and so clearly and definitely set forth as
not to leave unobviated any supposable special answer.
6. Continuance properly denied.
7. The statute regulating continuances because of absent
witnesses is mandatory and when the application for continuance complies with
the statute there is no room for the court to exercise any discretion.
8. This court will not consider any alleged error in the
omission to give instructions unless exception is duly taken and unless a
request is made for such instruction.
9. Instructions examined and found fairly and completely to
cover everything in the refused instruction.
10. In order to secure review by an appellate court of
improper argument before the jury, by counsel, the attention of the trial court
must be immediately called to the objectionable remarks and request be made for
the interference of the court, and, in case of refusal, an exception be noted.
11. Counsel and court considered that admonition by the court
cured the objectionable remarks of the prosecuting attorney, and counsel cannot
now be heard to question such ruling in the absence of a specific exception.
Accused cannot be compelled to
incriminate himself. C. L. 1897, secs. 979, 980, 3431, 3765, 3405; 5th
Amendment of U. S. Constitution; Counselman v. Hitchcock, 142 U.S. 549; Levy v.
Superior Court, 167 U.S. 42; Zucker, 161 U.S. 481; U. S. v. Edgerton, 80 Fed.
376; U. S. v. Bell, 81 Fed. 843; State v. Young, 24 S. W. 1045; 2 Bishop's C.
P., sec. 794; Tuttle v. People, 79 Pac. 1039; U. S. v. Praeger, 149 Fed. 482;
Hale v. Hinkle, 201 U.S. 67; State v. Gardner, 92 N. W. 529; Boone v. People,
36 N. E. 99; State v. Clifford, 53 N. W. 299.
Continuance should have been granted
because of absence of witnesses. C. L. 1897, secs. 2987, 3422; State v.
Berkley, 4 S. W. 24; 2nd Story Const., secs. 1938, 1943; Starkie on Ev., 9th
ed. 727; ex parte Milligan, 4 Wall. 120.
Instructions. Wharton on Homicide, 3 ed.,
sec. 587; Ty. v. Monroe, 6 Pac. 478; State v. Alcorn, 64 Pac. 1014; State v.
Keeler, 28 Iowa 551; McBride v. People, 37 Pac. 953; Gay v. State, 49 S. W.
612; Harris v. State, 12 S. W. 1102; Hunter v. State, 31 S. W. 674.
Motive. Wharton on Homicide, secs. 210,
211, 340.
Frank W. Clancy, Attorney General, for
Appellee.
The action of the grand jury is
conclusive in presenting the indictment and the court will not permit a retrial
of the propriety of finding the indictment after the grand jury has acted. U.
S. v. Reed, 2 Blatch. 466; State v. Morris, 36 Iowa 272; Cox v. Coleridge, 1 B.
& Cr. 37; 1 Chitt. Cr. L. 313; 9 Pick. 495; Dockery v. State, 35 Tex. Cr.
487; Washington v. State, 63 Ala. 192; State v. Fassett, 16 Conn. 471; Crech v.
State, 24 Ind. 155; State v. Tucker, 20 Iowa 508; State v. Fowler, 52 Iowa 104;
Hammond v. State, 74 Miss. 218; State v. Shreve, 137 Mo. 1; Leach's Cr. L. 159.
That appellant was taken before the grand
jury and there called upon to testify is not sufficient ground for setting
aside the indictment. Mencheca v. State, 28 S. W. 203; Spearman v. State, 34
Tex. Cr. 281; U. S. v. Brown, 1 Sawyer 532; People v. Landis, 82 Mich. 118.
Plea in abatement was not sufficient.
Boone v. People, 148 Ill. 448; State v. Gardner, 88 Minn. 136; State v.
Froiseth, 16 Minn. 297; State v. Frizell, 111 N. C. 722; U. S. v. Egerton, 80
Fed. 374; State v. Trauger, 77 N. W. 337; State v. Donelon, 12 So. 922; 1 Chit.
Pl. 445; Gould Pl., chap. 3, secs. 57, 58; 1 Bish. Crim. Proc., sec. 324; Dolan
v. People, 64 N. Y. 492; O'Connell v. Reg., 11 Clark & F. 155; State v.
Bryant, 10 Yerg. 527; State v. Newer, 7 Blackf. 307; State v. Brooks, 9 Ala. 9;
Hardin v. State, 22 Ind. 347; Findley v. People, 1 Mich. 234; Belden v. Laing,
8 Mich. 500; People v. Lauder, 82 Mich. 114; Rex v. Lewis, 6 Car. & P. 161;
Rex. v. Davis, Id. 177; Reg. v. Owen, 9 Id. 238; Reg. v. Wheeler, 8 Id. 250;
People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 N. Y. 211.
Failure to instruct as to involuntary
manslaughter is not up for review. Territory v. O'Donnell, 4 N.M. 209; U. S. v.
Duran de Amador, 6 N.M. 173; Territory v. Gonzales, 11 N.M. 326; Territory v.
Watson, 12 N.M. 421; Territory v. Caldwell, 14 N.M. 543.
No error in refusing instruction. U. S.
v. Wiltberger, 28 Fed. Cas. 730.
Statements of District Attorney to jury
were not prejudicial. Chacon v. Territory, 7 N.M. 246.
Wright, A. J. William H. Pope, Chief
Justice, John R. McFie, Associate Justice, dissenting.
{*618} STATEMENT OF
FACTS.
{1} At the September, 1910,
term of the District Court of Union county, the defendant, Silvestre Torres and
three others were jointly and severally indicted for the murder of one Reymundo
Encinas. The joint indictment was No. 598. All the defendants were arraigned on
all of the indictments and entered pleas of not guilty, all which proceedings
took place before any of the defendants had consulted counsel. At the March,
1911, term, the defendants in all cases withdrew their pleas of not guilty and
filed pleas in abatement. In the case at bar the plea was as follows: "And
the said Silvestre Torres, in his own proper person, comes into court here,
and, having heard the said indictment read, says that he was required and
compelled to testify under oath before the grand jury by whom the said
indictment was found and returned into court here, touching any and all matters
that had come to his knowledge concerning the said alleged crime set out in
said indictment, and particularly all he had heard tending to implicate all
defendants jointly indicted with him by the grand jury under case No. 598, of
the records of this court; that during the session of said grand jury, affiant
was then confined in the county jail of said Union county, and was taken from
there by the sheriff of said county before said grand jury and compelled, after
being sworn by the foreman of said grand jury, to answer all questions touching
said alleged crime, and all he had heard about the same, tending to implicate {*619} himself or other persons, all of which
was done against his will and over his protest, and that the indictment herein
was found on hearsay and secondary evidence given by him and his co-defendants,
and not on legal evidence, and this he is ready to verify. Wherefore he prays
judgment of the said indictment and that the same may be quashed." To this
plea the district attorney demurred. The court sustained the demurrer to the
plea, and, after denying a motion for continuance, called the case for trial.
The jury found the defendant guilty of voluntary manslaughter. Defendant filed
motions for new trial and in arrest of judgment, all of which were overruled
and exception duly taken. Sentence was pronounced, notice of appeal given and
appeal duly granted.
{2} The first error assigned
by appellant questions the ruling of the court in sustaining the demurrer to
the plea in abatement. By his plea in abatement the appellant insists that the
indictment be quashed for the following reasons, namely: 1. Because the
indictment was found on hearsay and secondary evidence given by appellant and
his co-defendants. 2. Because appellant's constitutional privilege was invaded
in compelling him to testify against himself. Pleas in abatement are dilatory
pleas and have always been subject to the most technical rules of pleading and
the greatest accuracy and precision are required in framing them. They must
leave nothing to be supplied by intendment. Any inference indulged in by the
court must be against the pleader. 1 Chit. Cr. Law 445; 1 Bish. New Crim.
Proc., sec. 327; People v. Lauder, 82 Mich. 109, 46 N.W. 956; Steiner v. State,
78 Neb. 147, 110 N.W. 723; Thompson v. U. S., 30 App. D.C. 352; Thomas v.
State, 58 Fla. 122, 51 So. 410; U.S. v. Standard Oil Co., 154 F. 728; U.S. v.
Amer. Tob. Co., 177 F. 774; Melville v. State, 173 Ind. 352, 89 N.E. 490;
Pennel v. State, 125 S.W. 445; 122 Tenn. 622. Applying the foregoing rule to
the plea in this case it is apparent that the same is bad for uncertainty and
insufficiency. It is impossible to determine therefrom whether the appellant {*620} relies upon the reception of
incompetent and hearsay evidence or upon the point that his constitutional
privilege was violated by being compelled to testify against himself. The
position taken by the Attorney General is that, in the absence of some statute
authorizing a reexamination of the evidence taken before a grand jury, upon
which an indictment has been found, the action of the grand jury in presenting
the indictment is conclusive. Whether such be the rule or not, this plea is
bad; First, because it is not necessarily true that secondary evidence is not
legal evidence. Second, the allegations of the plea leave too much to
inference. Third, the allegations are mere conclusions of law. For these reasons
alone the trial court was right in sustaining the demurrer.
{3} 2. Passing now to the
argument advanced by counsel, that the constitutional privilege of appellant
was violated by his being compelled, over his protest, to be a witness against
himself before the grand jury, we must bear in mind that this constitutional
right is a personal privilege to be claimed or not, as the appellant may
choose. The mere fact that appellant was subpoenaed and compelled to appear
before the grand jury was not a violation of his constitutional rights, nor is
the fact that he was sworn before such body and there testified to facts that
did not incriminate himself a violation of his constitutional rights. People v.
Lauder, supra. If, in fact, the appellant was compelled, over his protest, to
be a witness against himself before the grand jury, and as a matter of fact,
was compelled to testify to matters and things, over his protest, incriminating
or tending to incriminate himself, it was a direct violation of his personal
right guaranteed him under the Federal Constitution. Counselman v. Hitchcock,
142 U.S. 547, 35 L. Ed. 1110, 12 S. Ct. 195; State v. Donelon, 45 La. Ann. 744,
12 So. 922; State v. Trauger, 77 N.W. 336; Lindsey v. State, 69 Ohio St. 215,
69 N.E. 126. Whether the plea raises this specific question was a question of
law for the court. By sustaining the demurrer the lower court held that the
plea did not present this question. Keeping in mind the rules of pleading
applicable hereto, we find that the plea does not state that
{*621}
the appellant refused to take the oath or that at the time the oath was
administered, he claimed his privilege; nor does the plea anywhere allege that
appellant at any time, claimed his constitutional privilege, or refused to
answer any question which might incriminate or tend to incriminate him. The
only expression in the plea, which, by any stretch of the imagination, could be
so construed is as follows: "and compelled, after being sworn by the
foreman of said grand jury, to answer all questions touching said alleged
crime, and all he had heard about the same, tending to implicate himself or
other persons, all of which was done against his will and over his
protest." * * * It is to be noted that this plea does not set out the
facts so testified to by appellant, nor does it show that he testified to any
fact material to the inquiry, or that any facts so testified to were considered
by the grand jury, or that such facts were the basis of the indictment
returned. Nor can it be said that such plea discloses that the appellant was
compelled to, and did, testify, over his protest, to any fact whatever tending
to incriminate himself. The allegations in the plea are, at best, mere
conclusions. The facts themselves must be stated and so clearly and definitely
set forth as not to leave unobviated any supposable special answer. Thomas v.
State, 58 Fla. 122; 51 So. 410; State v. Comer, 157 Ind. 611; 62 N.E. 452. We
are therefore of the opinion that the demurrer to the plea in abatement was
properly sustained.
{4} 3. The appellant assigns
as error the action of the trial court in overruling his motion for
continuance, wherein appellant prayed a continuance or postponement of the
trial until the presence of three witnesses, named therein, could be had. After
considering the facts set out in such motions, the court ruled that such
motions were sufficient as to the witnesses Clemencia Lucrecio and Julianita
Torres. The Territory thereupon stated that it was ready to admit, (and later
did admit upon the trial,) that if the two witnesses mentioned in said motion
were present they
{*622} would testify
as set forth in said motion. This admission having been made, the court, under
the authority of Section 2987, of the Compiled Laws, denied the motion for a
continuance. Section 2981, cited supra, reads as follows: "If the
application for continuance is insufficient it shall be overruled; if held
sufficient the cause shall be continued, unless the opposite party will admit
that the witness, if present, would testify to the facts therein stated, in
which event the cause shall not be continued, but the party may read as
evidence of such witness the facts held by the court to be properly
stated."
{5} 4. Appellant also filed
an additional affidavit and motion for continuance because of the absence of
one Julian Padilla, a material witness for the appellant. The court, after
considering such additional motion overruled the same as insufficient. An
examination of the motion and affidavit discloses that there is no such showing
of diligence on the part of the appellant as is required by law. It is true
that the affidavit in support of the motion shows the issuance of subpoena and
delivery to a deputy sheriff for service, but it does not show when this was
done. The record in this case shows that the appellant was indicted and
arraigned at the term prior to the trial and had been released on bond after
arraignment, and while it is true that the plea was later withdrawn for the
purpose of filing a plea in abatement, this could not excuse the appellant from
exercising all due diligence in preparing his defense. The record in this case
does not disclose whether the subpoena for Julian Torres was issued one week or
one hour prior to the filing of the motion for continuance. The statute regulating
continuances because of absent witnesses is mandatory and when the application
for continuance complies with the statute there is no room for the court to
exercise any discretion. Territory v. Kinney,
3 N.M. 656,
9 P. 599. Section
2986 of the Compiled Laws prescribes that the application shall contain, and
prescribes, among other things, that the application shall set out the
"efforts, constituting due diligence, which have been used to obtain such
witness or his testimony." In the case at bar, the application for
continuance
{*623} fails to set out any
facts showing due diligence on the part of the appellant. The trial court,
therefore, properly denied the additional motion for continuance.
{6} 5. The next error
assigned is that the court failed to instruct as to involuntary manslaughter.
The record shows that the appellant's counsel took no exception to the failure
of the court so to instruct, nor did he make any request for any such
instruction. It is too well settled to permit of any discussion, that this
court will not consider any alleged error in the omission to give instructions
unless exception is duly taken and unless a request is made for such
instruction as appellant alleges should have been given. Territory v. Watson,
12 N.M. 419,
78 P. 504; Territory v. Caldwell,
14 N.M. 535,
98 P. 167. No
request having been made nor exception taken, there is nothing for the court to
consider.
{7} 6. Appellant assigns as
error the refusal to give the second requested instruction. The instruction in
question is as follows: "The jury are instructed they cannot indulge in
presumption as to the proximate or efficient cause of the death of the
deceased, but must find from the evidence that the wound testified to and found
on the body of deceased was sufficient to cause his death, and that said wound
was necessarily a mortal wound and did cause his death." The trial court
refused to give this instruction for the reason that the instructions given by
the court, on his own motion, fully and completely covered everything contained
in the refused instruction. We have examined the instructions given by the
court on his own motion and find that they do fairly and completely cover
everything contained in the refused instruction. It therefore follows that
there was no error in the refusal to give such requested instruction. Territory
v. Price,
14 N.M. 262,
91 P. 733; Cunningham v. Springer,
13 N.M. 259, 287,
82
P. 232; Territory v. De Gutman,
8 N.M. 92,
42 P. 68.
{8} 7. The last assignment of
error relates to three alleged prejudicial statements made by the district
attorney in his argument to the jury. It is very doubtful whether the
objectionable remarks and the circumstances relating
{*624}
thereto are so preserved in the record as to be before this court. No bill of
exceptions was taken at the time and they appear only in an affidavit of
defendant's attorney filed in support of the motion for a new trial. After
setting out the alleged objectionable remarks the affidavit states:
"Affiant further says, that at the time each and every of the said
statements were so made to the jury, affiant (counsel for appellant) then and
there made due objection to the court, and the court admonished the prosecutor
in the first and third statements herein." The general rule is well settled
that, in order to secure a review by an appellate court of improper argument
before the jury, by counsel, the attention of the trial court must be
immediately called to the objectionable remarks and request be made for the
interference of the court, and, in case of refusal, an exception be noted to
the ruling of the court. Corcoran v. Albuquerque Traction Co.,
15 N.M. 9,
103
P. 645; Territory v. Cordova,
11 N.M. 367,
68 P. 919; Whaley v. Vannatta, 77
Ark. 238, 91 S.W. 191, and note with collected cases. No ruling appears to have
been made by the trial court upon the second statement to which objection is
made. There being neither a ruling nor a refusal to rule on the part of the
trial judge, there is nothing before us for review. As to the first and third
statements to which objection is made, it appears that the court, upon his
attention being called thereto, admonished the prosecuting attorney. No
exception was taken to the action of the court in so doing, nor was any request
made by counsel for any other action or ruling by the court. It is evident,
therefore, that both counsel and the court consider that the admonition by the
court cured the objectionable remarks, and counsel cannot now be heard to
question such ruling in the absence of a specific exception to the action of
the trial court. There being no reversible error apparent in the record, the
judgment of the lower court is affirmed.
{9} I dissent from so much of
the opinion as sustains the action of the trial court in overruling the
demurrer to the plea in abatement.
William H. Pope, Chief Justice.
John R. McFie, Associate Justice.