{ "id": 4663692, "name": "DIONICIO SANDOVAL, Plaintiff in Error, v. TERRITORY OF NEW MEXICO, Defendant in Error", "name_abbreviation": "Sandoval v. Territory of New Mexico", "decision_date": "1896-09-01", "docket_number": "No. 662", "first_page": "573", "last_page": "583", "citations": [ { "type": "official", "cite": "8 N.M. 573" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "89 Ky. 354", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 2347992 ], "opinion_index": -1, "case_paths": [ "/ky/89/0354-01" ] }, { "cite": "44 Kan. 572", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 1186999 ], "opinion_index": -1, "case_paths": [ "/kan/44/0572-01" ] }, { "cite": "84 Ga. 674", "category": "reporters:state", "reporter": "Ga.", "case_ids": [ 76330 ], "opinion_index": -1, "case_paths": [ "/ga/84/0674-01" ] }, { "cite": "64 Mo. 319", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 968461 ], "opinion_index": -1, "case_paths": [ "/mo/64/0319-01" ] }, { "cite": "156 U. S. 51", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1488088 ], "opinion_index": -1, "case_paths": [ "/us/156/0051-01" ] }, { "cite": "2 N. M. 93", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3284067 ], "weight": 2, "pin_cites": [ { "page": "104" }, { "parenthetical": "Gil." } ], "opinion_index": -1, "case_paths": [ "/nm/2/0093-01" ] }, { "cite": "110 U. S. 582", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": -1 }, { "cite": "20 S. W. Rep. 7", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": -1 }, { "cite": "3 Kan. 450", "category": "reporters:state", "reporter": "Kan.", "case_ids": [ 65110 ], "opinion_index": -1, "case_paths": [ "/kan/3/0450-01" ] }, { "cite": "25 Cal. 361", "category": "reporters:state", "reporter": "Cal.", "case_ids": [ 2219292 ], "opinion_index": -1, "case_paths": [ "/cal/25/0361-01" ] }, { "cite": "32 Fla. 462", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 8849934 ], "opinion_index": -1, "case_paths": [ "/fla/32/0462-01" ] }, { "cite": "5 Pac. Rep. 822", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "29 Ohio St. 412", "category": "reporters:state", "reporter": "Ohio St.", "case_ids": [ 332201 ], "opinion_index": -1, "case_paths": [ "/ohio-st/29/0412-01" ] }, { "cite": "53 Yt. 37", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 757121 ], "opinion_index": -1, "case_paths": [ "/vt/53/0037-01" ] }, { "cite": "50 Ark. 506", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8724029 ], "opinion_index": -1, "case_paths": [ "/ark/50/0506-01" ] }, { "cite": "46 Pa. St. 398", "category": "reporters:state", "reporter": "Pa.", "opinion_index": -1 }, { "cite": "8 Ohio St. 193", "category": "reporters:state", "reporter": "Ohio St.", "opinion_index": -1 }, { "cite": "70 Mo. 595", "category": "reporters:state", "reporter": "Mo.", "opinion_index": -1 }, { "cite": "92 Am. Dec. 417", "category": "reporters:federal", "reporter": "Am. Dec.", "opinion_index": -1 }, { "cite": "23 Iowa, 154", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 344461 ], "opinion_index": -1, "case_paths": [ "/iowa/23/0154-01" ] }, { "cite": "63 Am. Dec. 269", "category": "reporters:federal", "reporter": "Am. Dec.", "weight": 2, "opinion_index": -1 }, { "cite": "8 N. M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4665412 ], "opinion_index": 0, "case_paths": [ "/nm/8/0204-01" ] }, { "cite": "5 N. M. 34", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3624847 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/5/0034-01" ] }, { "cite": "4 N. M. 275", "category": "reporters:state", "reporter": "N.M.", "weight": 2, "opinion_index": 0 } ], "analysis": { "cardinality": 793, "char_count": 18756, "ocr_confidence": 0.453, "pagerank": { "raw": 2.407510207061882e-07, "percentile": 0.7995925631185448 }, "sha256": "0a85d78c737ea4e3188b05321541b74d374b2e527b2b3cc84aecab6e871ad951", "simhash": "1:2e45f496b1165174", "word_count": 3431 }, "last_updated": "2023-07-14T15:56:15.654849+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Smith, C. J., and Hamilton and Bantz, JJ., concur." ], "parties": [ "DIONICIO SANDOVAL, Plaintiff in Error, v. TERRITORY OF NEW MEXICO, Defendant in Error." ], "opinions": [ { "text": "Laughlin, J.\nThe plaintiff in error, Dionicio Sandoval, was indicted for murder in the first degree, on an indictment charging him with having on the twenty-ninth day of July, 1895, at the county of Bernalillo in said territory of New Mexico, shot and killed one Victoriano Tenorio.\nAt the October, 1895, term of the district court for said county, the said Dionicio Sandoval was tried and found guilty of murder in the first degree; and after motions for new trial and in arrest were made, argued and denied, defendant was sentenced tobe hanged, and error was sued out and stay of execution was granted, and the case is here on errors assigned in the court below, and such as are deemed pertinent to the proper decision of the case will be considered in the opinion.\nThere are some thirty-six errors assigned for reversal, by plaintiff in error\u2019s counsel, but only such of these will be considered as seem necessary for the proper determination of the ease. There were only three witnesses who testified in this case, and they were all eyewitnesses to it, and within a few yards of the place where the homicide occurred; two testified in behalf of the prosecution, and the defendant only in his own behalf. There is no dispute as to the place where or the time when the shot was fired which killed the deceased, Victoriano Tenorio; nor is there any dispute as to whose gun it was from which the fatal shot was fired, nor as to where the fatal bullet entered the body of the deceased. The facts are clearly shown by the testimony of all the witnesses.\nThe only controversy shown by the testimony is as to how the gun was fired.\nThe testimony of all the witnesses shows that the deceased, the defendant, and the two witnesses for the prosecution, were all sheep-herders, and that on the evening and a short time prior to the occurrence of the homicide, the defendant whose flock and sheep-camp was some two or three miles distant from the place of the homicide, came with a forty-four caliber Winchester rifle, to the camp-fire of the deceased, about 7 or 8 o\u2019clock in the evening, and after saluting the deceased and the two witnesses who were near the camp-fire the defendant took a seat upon a water keg with his rifle by him, and the witnesses for the prosecution testify, \u201cthat deceased asked defendant to be seated upon some sheep-skins,\u201d which defendant declined to do, saying* \u201che was all right where he was, and was doing no harm;\u201d then deceased said \u201cno, but I suppose you will be more at ease lying on the sheep-skins. Then Donicio Sandoval (defendant) told Victoriano Tenorio (deceased) what was the reason he had said on his count he had so many lambs in his fold without any dames or mothers, \u2014 mavericks; and Victoriano answered, I didn\u2019t say that; what I did say was, you didn\u2019t deliver to me all my sheep. Then Dionicio Sandoval said: You are a liar. And he said, I don\u2019t lie. And then he, defendant, shot.\u201d These are substantially the same facts testified to by the other witnesses for the prosecution. The testimony further shows that the fatal bullet entered near the armpit of the deceased, and he fell to the ground and died immediately, and only said after he was shot, \u201ctake hold of me.\u201d It further appears from the testimony on the part of the prosecution, the deceased was sitting down at the time he was shot, and that the defendant was standing up. This state of facts makes out a clear case of murder in the first degree beyond any doubt, as defined by our statute on that subject; and the instructions given by the court below on murder in the first degree was full and sufficient on that degree.\nThe testimony of the defendant in his own behalf on this particular point is as follows, to wit:\n\u201cQ. Were you camping that night close \u2014 how far were you camping from the deceased\u2019s camp, Victoriano Tenorio! A. About three miles.\n\u00a3\u00a3Q. Did you go to the camp that night of Tenorio! A. Yes, sir.\n\u201cQ. State what you saw. A. I told him I went over there to tell him to fix his camp in the corral, to await the boss; that I would fix my corral on one side, and to ask him, also, why was he talking about me touching my honor without any 'cause.\n\u00a3\u00a3Q. What was said and done after you got there! A. He told me then that I lied, and he said what had I to say about him that I was so and so, touching my credit.\n\u201cQ. Just tell what was said. A. Then he jumped up as though to strike me, and then he got hold of the rifle and in the twist we gave it in getting up the gun went off, and he was shot. I didn\u2019t do it intentionally.\u201d\nOn cross-examination the defendant testified as follows, to wit:\n\u00a3\u00a3Q. Did you level your gun on him then, or which way did you hold your gun! A. I had my rifle on one side, and when he came upon me, I took hold of the rifle, and we got to struggling for the rifle.\n\u00a3\u00a3Q. Where did he grab the rifle! A. He didn\u2019t, I had it.\n\u00a3\u00a3Q. Didn\u2019t he grab hold of it! A. When I kinder got out- and he caught hold of the rifle, and he wanted to take hold of me and we struggled for it, and in the twist we made the rifle went off.\n\u00a3\u00a3Q. Where did he catch hold of the rifle! A. Eight on the other side of me, straight as we had it.\n\u00a3\u00a3Q. Where did you have the rifle! A. I had the barrel.\n\u00a3\u00a3Q. Did you pick it up by the barrel when you picked it up? A. I took hold of it about the middle of the rifle, about where the cartridge boxes are.\n\u00a3\u00a3Q. Did you have hold of it with one hand or both? A. No, I had it sitting by one side of' the keg.\n\u00a3 \u00a3Q. When you picked it up did you pick it up with one hand or with both hands? A. With one hand, and then he caught hold of it himself, and then we both had the rifle.\n\u00a3\u00a3Q. Which hand did you pick it up with? A. With the left.\n\u00a3\u00a3Q. You took it about the middle, then did you take hold of it with your right hand, too? A. Yes, sir; by the barrel.\n& * ifr #\n\u00a3\u00a3Q. You are right handed when you shoot, do you shoot from your right shoulder? A. On the right side.\n\u00a3\u00a3Q. You say he grabbed hold of the barrel also? A. Yes, sir.\n\u00a3\u00a3Q. With his hands outside of yours, or between your hands? A. One of his hands he had in the middle and the other over here (witness illustrates).\n\u00a3\u00a3Q. And he had hold of the gun toward the end? A. Yes, sir.\n\u00a3\u00a3Q. And in the scuffle you don\u2019t know how the rifle went off ? I do not know.\n\u00a3\u00a3Q. Did you pull the trigger? A. (Witness illustrates) I do not know how the rifle cocked itself, perhaps in the struggle we had there it got cocked and went off.\u201d\nOn this testimony counsel for plaintiff in error contend that the court should have instructed the jury with respect to murder in the second and third degrees. The statute defines murder in the second degree as follows, to wit: \u201cSec. 5. All murder which shall be perpetrated without a design to affect death, by a person while engaged in the commission of a misdemeanor, or which shall be perpetrated in the heat of passion without design to affect death, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or which shall be perpetrated unnecessarily, either while resisting an attempt by the person killed to commit any offense against person or propei\u2019ty, or after such attempt shall have failed, shall be deemed murder in the second degree.\u201d Laws 1891, p. 150.\nComparing the testimony with this statute, is it clearly apparent that the homicide was not \u201cperpetrated without a design to effect death, by a person while engaged in the commission of a misdemeanor,\u201d because it is not shown or claimed that there was any attempt to commit a misdemeanor on the part of either the deceased or the defendant, but it was simply a dispute between defendant and the deceased about some sheep. Nor is there anything to show that the homicide was \u201cperpetrated in the heat of passion without design to effect death, but in a cruel \u00e1nd unusual manner, because there is no testimony that any \u201cheat of passion\u201d on the part of either the defendant or the deceased, for it is plain according to defendant\u2019s own testimony, that it was perpetrated while they were engaged in a struggle over the possession of the gun. Nor was the death effected in a \u201ccruel and unusual manner,\u201d but by a gunshot, in the latest and most approved manner and style of taking human life under such circumstances. Territory v. Pridemore, 4 N. M. 275. The death was effected \u201cby means of a dangerous weapon,\u201d but if defendant\u2019s testimony is to be taken as true, it was committed under such circumstances as to constitute \u201cexcusable homicide\u201d * * * because defendant says, in tbe struggle for the gun it went off, shot, and killed the deceased, and that \u201cI didn\u2019t do it intentionally.\u201d Nor is there anything to show that the killing was \u201cperpetrated unnecessarily\u201d \u201cwhile resisting an attempt\u201d by the deceased to \u201ccommit any offense against the person or property\u201d of the defendant, or after any such attempt had failed; because there was no such attempt made on the part of the deceased.\nThe death of the deceased was'effected by the defendant, and he did it either with a \u201cdesign to effect death\u201d or he did it by accident, and if he did it with a design to effect death, without any just provocation, then it was murder in the first degree, according to the testimony before the jury, and if, as he says, he \u201cdidn\u2019t do it intentionally,\u201d then it was excusable homicide; and as to which of these two propositions was correct it was within the province of the jury to determine. And it would have been error on the part of the court to have instructed in the second degree, because there was no evidence tending to establish that grade of the crime charged, Territory v. Fewel, 5 N. M. 34; State v. Alexander, 66. Mo. 148.\nMurder in the third degree is defined by our statute to be: \u201cSec. 6. Every killing of a human being by act, procurement, or culpable negligence \u201eof another, which, under the provisions of this act,, is not murder in the first or second degees, and which is not excusable or justifiable homicide as now defined by law, shall be deemed murder in the third degree.\u201d Laws 1891, p. 150.\nThe testimony shows that the killing took place at the Yalle de San Isedoro, some fifteen miles distant from any settlement, and in the nighttime, and the defendant had a right to have his gun with him at that time and place. There is nothing whatever in the testimony in the record to show that the homicide occurred from any unlawful act or intent on the part of the defendant; nor is there anything to show that the killing was brought about by the \u201cprocurement or culpable negligence\u201d of the defendant. He says, in effect, \u201cthat he was sitting upon a water keg with his gun by his side, some feet from the deceased,- and that the deceased rushed upon him and seized hold of the gun, and in the struggle for the possession of the gun it went off, and the deceased was shot, and instantly killed,\u201d and that \u201che didn\u2019t do it intentionally.\u201d Defendant did nothing in respect to the \u201cprocurement\u201d of the death of the deceased; nor is there anything to show any act of \u201cculpable negligence\u201d on the part of the defendant. He had a right to be at the place of the homicide an,d to have his gun with him there. According to his testimony he was not using the gun in any unlawful or threatening manner whatsoever. Negligence is usually defined to be \u201cthe omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.\u201d Blyth v. Birmingham Waterworks, 11 Exch. 784; 2 Bowd. Law Dic.; Thompson on Trials, sec. 1662.\nIt is plainly to be seen that there was no evidence in the case warranting' an instruction of murder in the third degree. Territory v. Fewel, supra; Territory v. Pridemore, 4 N. M. 275.\nOn the question of excusable homicide the court charged the jury as follows:\n\u201cIf you believe from the evidence that such killing was the result of accident, or misfortune during the struggle between the defendant and the deceased, in which the deceased was ' seeking to disarm defendant, and said rifle was accidentally discharged, or if such evidence creates in your mind a reasonable doubt as to whether the defendant unlawfully, deliberately, and of his premeditated malice killed the deceased, or if from any other reason you are not satisfied beyond a reasonable doubt of defendant\u2019s guilt, you should find the defendant not guilty, but if all the evidence in the case -leaves in your minds, after careful consideration of the same, an abiding conviction of defendant\u2019s guilt, then you should so find him.\u201d\niff ijf iff iff iff *#\u2022 -\u2021-\n\u201cTour verdict in this case will either be that the defendant is guilty of murder in the first degree, or that he is not guilty, you being instructed that you are confined to one of these two forms of verdict.\u201d\nCounsel for appellant contend that error intervened to the prejudice of appellant by reason of the last instruction quoted, because the court said, \u201cYou are instructed that you are confined to one of these two forms of verdict.\u201d There was no error in giving this instruction to the jury. Judge Brinker, in Fewel\u2019s case, supra, after quoting approvingly from Alexander\u2019s case, supra, in which Judge Henry said, \u201cHe was either guilty of murder in one of the degrees in which an intent to kill is an element, or the killing was justifiable,\u201d said, \u201cAnd the attention of the jury should have been confined to that.issue.\u201d In Young\u2019s case, supra, the same instruction complained of here was given and was assigned as error, and Chief Justice Prince, in an able opinion, said, in passing on this alleged error: \u201cThe statement of the court below that \u2018the verdict should be guilty of murder in the first degree, or not guilty,\u2019 was exactly equivalent to the other statement. There is no evidence before you tending to show that the killing is murder in any other degree than the first.\u201d * * * And it was held not to be error. It is plain, therefore, that this court has held in effect, if not in direct words, that it is the duty of the trial court to confine the attention of the jury to the issues involved by the evidence, and the court, at its peril, must instruct on all the law applicable to all the evidence, and/then, confine the jury to those issues alone. Territory v. Friday, 8 N. M. 204.\nThese instructions submitted all the evidence in the case fairly to the jury; and it was either murder-in the first degree, or it was excusable homicide, and as to which it was, was the province of the jury to determine. And they found that it was murder in the first degree.\nThere are many other errors assigned but it is deemed unnecessary to consider them. The record shows that the defendant had a fair and impartial trial, and thei-e is no reversible error in the record of this case, and for the foregoing reasons the judgment of the court below is affirmed. And it is so ordered.\nSmith, C. J., and Hamilton and Bantz, JJ., concur.", "type": "majority", "author": "Laughlin, J." } ], "attorneys": [ "Edward L. Medler and G-. W. Johnston for plaintiff in error.", "John P. Yiotoby, solicitor general, for the territory." ], "corrections": "", "head_matter": "[No. 662.\nSeptember 1, 1896.]\nDIONICIO SANDOVAL, Plaintiff in Error, v. TERRITORY OF NEW MEXICO, Defendant in Error.\nCriminal Law \u2014 Murder\u2014Evidence\u2014Instruction.\u2014On a trial for murder, where two witnesses for the prosecution, present at the killing, testified that defendant came to the camp of deceased, armed with a rifle, and, on deceased\u2019s saying to defendant that he had not delivered to him all his sheep, defendant called him a liar, and shot him, and defendant testified that deceased called him a liar, and then caught hold of the rifle, and attempted to take it away from defendant, when the rifle .was accidentally discharged, and killed deceased. \u2014 Selcl, that the court properly refused to give instructions either in the second or third degrees.\nID, \u2014 Murder\u2014Evidence\u2014Degrees\u2014Instructions.\u2014In such case, where the evidence showed murder in the first degree, or excusable homiieide, and proper instructions were given on these degrees, an instruction which told the jury that in rendering their verdict they must either find defendant guilty of murder in the 'first degree, or that he was not guilty, was a proper instruction.\nError, from a judgment of conviction for murder, to the Second Judicial District Court, Bernalillo County.\nAffirmed.\nThe facts are stated in the opinion of the court.\nEdward L. Medler and G-. W. Johnston for plaintiff in error.\nThe court erred in confining the jury to either a verdict of murder in the first degree, or an acquittal. The jury should have been instructed as to murder in the second'and third degrees and allowed to-deliberate as to these forms of verdict. Kelner v. State, 63 Am. Dec. 269; State v. Benham, 23 Iowa, 154; State v. Benham, 92 Am. Dec. 417; People v. King, 87 Id. 95; Ex parte Sloan, 11 S. Rep. 14; State v. O\u2019Hara, 4 S. W. Rep. (Mo.) 422; 2 Bish. Crim. Law, sec. 679; State v. Curtis, 70 Mo. 595; State v. Ellis, 74 Id. 207; State v. Holme, 54 Id. 153; Lisbosski y: State, 3 S. W. Bep. 698; Bobbins v. State, 8 Ohio St. 193; Beau-dine v. State, Id. 638; Rhodes v. Comm., 46 Pa. St. 398; Lane v. Comm.., 59 Id. 375; Shaffner v. Comm., 72 Id. 61; Fogg v. State, 50 Ark. 506; State v. Carr, 53 Yt. 37; 2 Bish. Crim. Prac., sec. 642; Adams v. State, 29 Ohio St. 412; 2 Wkar. Grim. Law, sec. 1112; State v. Linds\u00e9y, 5 Pac. Rep. 822; Marshall v. State, 32 Fla. 462; Keener v. State, 63 Am. Dec. 269; State v. Turner, Wright (Ohio), 20; People v. Foren,'25 Cal. 361; Craft v. State, 3 Kan. 450; State v. Crabtree, 20 S. W. Rep. 7; Hapt v. Utah, 110 U. S. 582; State v. Peri go, 45 N. W. Rep. (Iowa) 399; State v. Berkley, 4'S. W. Rep. 24; Territory v. Friday (N. M.), Oct. term, 1895.\nJohn P. Yiotoby, solicitor general, for the territory.\nThe court did not err in instructing the jury that their verdict should be guilty of murder in the first degree or not guilty. Territory v. Young, 2 N. M. 93, 104; Territory v. Thomason, 4 Id. (Gil.) 154; Sharf v. U. S., 156 U. S. 51; State v. Lane, 64 Mo. 319-324; State v. Musick, 101 Id. 260; Robinson, 84 Ga. 674; State v. Estep, 44 Kan. 572-575; O'Brien v. Comm., 89 Ky. 354.-\nIt is the duty of defendant when dissatisfied with the instructions given by the court on any point to offer a proper instruction covering that point. This was not done in this case., and defendant has no right to complain. Territory v. O\u2019Donnell, 4 N. M. (Gil.) 196 and citations.\nEven if an instruction was asked by defendant that, if defendant killed deceased in the heat of passion, the offense would not be murder in the first degree, the same would be refused by the court, because there was no evidence in the case to justify*or require it. Territory v. Anderson* 4N. M. (GUI.) 214; Territory v. Baker, Id. 236." }, "file_name": "0573-01", "first_page_order": 597, "last_page_order": 607 }