State v. Ascarate

OPINION OP THE COURT. HANNA, J. (after stating tbe facts as above.) — [1] The first point made by appellant is that the court erred in instructing the jury that they might find the defendant guilty of manslaughter. The theroy of appellant’s contention is. that the evidence did not justify the court in submitting to the jury the issue of manslaughter. The contention of the Attorney General is that no proper exception was taken to any of the instructions given by the court, and therefore the question of this assignment is not before us for determination. The exceptions taken to the court’s instructions were of a very general nature. They did not point out wherein the instruction was alleged to be erroneous, and therefore cannot be considered by us, as we have held in a long line of cases. State v. Lucero, 17 N. M. 484, 486, 131 Pac. 491; State v. Alva, 18 N. M. 152, 134 Pac. 209. For a full discussion of the reasons for the rule, see Fullen v. Fullen, 153 Pac. 294, by Parker, J., decided at this term. [2] (a) The next assignment presents two questions, both of considerable importance. The first is, that the court erred in admitting in evidence the statements made by appellant before the coroner’s jury at the inquest held by them shortly after the appellant’s wife was found dead, because such statements were not freely and voluntarily macfe. The second question is,, as we understand the appellant’s brief and argument, that the admission of such statements had the effect of compelling the appellant to testify against himself, in violation of section 15 of. article 2 of the state Constitution, which in turn deprived the appellant of “due process of law” as guaranteed to him by the fourteenth amendment to the Constitution of the United States. The salient facts are that shortly after the lifeless body of appellant’s wife was discovered, the sheriff received the appellant into his custody, without warrant, by request of the father of appellant, at the home of the latter’s father. Appellant and the sheriff then repaired to the former’s home, where they entered the house by way of the front door and remained in the darkened front room during the" c'ourse of about an hour, while the coroneifs inquest was being held. When- that investigation had been completed as to the examination of the body of the deceased, the jury, justice of the peace, sheriff, and his deputies, and appellant in custody of the sheriff, went to the office of the justice of the peace, where the coroner’s jury were to proceed further with their examination as to the cause of death of the deceased. A crowd had meanwhile gathered around the office, which the sheriff prevented from entering the room by posting a deputy at the door. During the course of the jury’s deliberations the justice of the peace asked the appellant if he desired to make a statement or to testify. Appellant answered in the affirmative. This is uncontradicted,; and remained .so throughout the trial. The justice of the peace thereupon swore appellant. Thereupon members, of the jury interrogated appellant as to matters connected with the death of the appellant’s wife, to which answers were made by appellant without objection and apparently freely and voluntarily and from a desire to talk and disclose all he knew. His statements did not constitute an express confession of his guilt of the commission .of the crime. In fact they were quite the contrary, -for they were to the • general effect that his wife , had taken her life .by her own hand and against his wishes and entreaties. In some respects his statements were inculpatory. For instance, he said that he was' in the -bathroom, at the time the fatal shot was fired, and, becoming frightened, rushed out the door and left the house, although he admitted that since that time he had changed his clothes because they were covered with blood. Without further explanation that fact had a tendency to incriminate .appellant. -The questions, or-most of them, propounded to appellant, as well as the answers he made - thereto, were written, down by one of the jurors, and the statement was identified at the trial and shown to be in the same condition as when finished that night. When the- statement was admitted in evidence the proof was. uncontradicted, that appellant had been asked whether he wanted to.,jna!se a statement, had replied in the affirmative, had been sworn by the' justice of the peace, and had been told that anything said by him might be used against him at the trial of his case. After the state had closed its case in chief and the appellant had placed witnesses on the stand, the justice'of the peace testified that he gave no warning at all to the appellant at the inquest. A careful search of the- record discloses that appellant, at the trial of this case, made no • statement that his testimony before the coroner’s jury was made under any form of duress, nor is there any intimation on his part, or that of any witness for .the appellant, that appellant’s statements' were involuntary.' But appellant argues that the statement, when admitted, was • improperly admitted, because it did not then appear that it was made without inducements or promises tending to arouse hope in the mind of the accused that by making it he would better his condition. In the first place it is fundamental that in order for a confession to be admissible it must first be shown that in every-respect it'was freely and voluntarily made. 1 Wigmore on Evidence, § 815 et seq.; 1 Elliott on Evidence, §§ 271, 273; Jones on Evidence (2d ed.) § 235; Underhill, Crim. Evidence, § 160; Hughes on Evidence, § 7; Bram v. United States, 168 U. S. 533, 557, 18 Sup. Ct. 183, 42 L. Ed. 568; State v. Armijo, 18 N. M. 262, 267, 268, 135 Pac. 555. ’ Whether or not the contents of the alleged confession should go. to the jury is in the first instance a question of law for the determination of the court. 1 Wigmore on Evidence, § 861; 1 Thompson on Trials, § 328; 1 R. C. L. § 122. The court looks to the evidence then before it, and, applying the legal principles governing confessions,, determines whether the contents of the confession should be considered by the jury or not. In -other words, it determines whether the requisite preliminaries concerning the admission of confessions conform with the law of the subject. If they do, it then permits evidence of the confession itself to be received. The jury; .then, under -proper instructions, determines- what weight, if any, shall be given to the confession. Perchance they may not believe the witnesses for the state, in which event they would, disregard the confession in toto. While a confession, in strict point of law, is an acknowledgment of guilt, ■ still statements of an inculpatory nature are tested by the same rules as govern confessions proper, and we test the question now under discussion in that- light. Bram v. United States, 168 U. S. 533, 541, 18 Sup. Ct. 183, 42 L. Ed. 568; Wilson v. United States, 162 U. S. 613, 621, 16 Sup. Ct. 895, 40 L. Ed. 1090. A number of cases, bearing both. on the question of confessions and in some instances on the question of a person being compelled to testify against himself, have-been called to our attention by the appellant. We have-read these cases and have made an independent investigation of practically all of the cases on the subject of confession. We find a great conflict among the eases, not on the fundamental proposition that the confession must be voluntary, for all the cases recognize that rule, but in the manner in which the courts arrive at one or the other conclusion. What is said in Tuttle v. People, 39 Colo. 243, 79 Pac. 1035, 78 L. R. A. 33, 3 Ann. Cas. 513, and the clear and definite rule laid down by that court meets with our hearty approbation. The court said: “From these cases it appears that in some jurisdictions' it is held that the statements of a party under oath before the coroner’s jury are not to be regarded as voluntary, while in others the converse is held, that, where a party is under arrest at the time he testifies before a coroner’s jury, his statements are not to be regarded as voluntary, unless he was-fully warned; that, if the party testifying is accused of the crime under investigation, although not formally arrested, or if he is suspected of the crime at the time he testifies, and knows this fact, that in some cases' it is held his.testimony is voluntary, and in others not; and that the New York cases are, as before indicated, based upon the proposition that, until a party is under arrest or taken in charge for the commission of the homicide, he is to be regarded at the coroner’s inquest the same as any other witness, and, unless he claims the privilege of not making statements, which may tend to incriminate him, or requests to be excused from testifying, he will be presumed to have done so voluntarily. It is impossible to reconcile the various cases to which we have referred, when considered in connection with, the facts disclosed upon, which they are respectively based. Possibly the conflict is the result of a failure to contradistinguish ‘voluntary’ and ‘involuntary’ admissions, or to observe that the word ‘voluntary’ is not in all instances used in contradistinction to ‘compulsory.’ Failure to claim the privilege of not being required to make incriminating statements, or testifying without objection at inquests, seems in some cases to have been regarded sufficient from which to deduce the conclusion that testimony was voluntary, without considering whether or not extraneous influence was the inducing cause of the statements by the accused. After all, as pertinently remarked in State v. Young, 119 Mo. 495, 510, 24 S. W. 1038, and State v. Gilman, 51 Me. 206, the important question to determine in cases of this character is: Was the statement voluntary? If this question can be answered in the aflirmative, then the statement is clearly admissible on a principle, the soundness of which is not disputed; but, if not voluntary, or if obtained by any degree of coercion, then it must he rejected. No hard and fast rule can be formulated which would serve as the test is every instance, but each case must be determined upon its own circumstances.” This is, substantially, the rule adopted by this court in State v. Armijo, 18 N. M. 262, 135 Pac. 555. In one instance the accused may have been warned, and nevertheless the other facts surrounding the confession are such as would lead a reasonable thinking man to believe that the confession was not the result of the untrammeled volition of the person making it, but was induced by other influences. Again he may have been told that he need not testify when as a matter of fact he must have realized that to take advantage of the admonition would be to place himself at a great disadvantage, if not in actual danger. So it would seem that whether the confession was freely and voluntarily made must depend on all the facts and circumstances of the particular case. Precedent therefore becomes of little practical assistance in determining the question. We are satisfied that the facts and circumstances of this case disclose that the so-called confession made by the appellant was freely and voluntarily made,' without duress of any sort, and that the trial court did not err in admitting it in evidence. When a conflict of evidence ensues as to certain facts connected with the preliminaries of the making of the confession, the matter becomes a question for the jury, untier proper instructions. Wilson v. U. S., 162 U. S. 613, 624, 16 Sup. Ct. 895, 40 L. Ed. 1090; 1 R. C. L. § 122. It is unnecessary to discuss the various cases cited by appellant on the question of confession, in view of the •rule we have laid down here. It is sufficient to say, how■ever, that all cases cited by appellant are either clearly distinguishable from, or are in harmony with, the principle in the case at bar. (b) It being true that the confession was freely and voluntarily made it follows as a matter of course that the appellant was not compelled to testify against himself in violation of section 15 of article 2 of the state Constitution. An historical discussion of that constitutional principle and provision may be found in State v. Ah Chuey, 14 Nev. 79, 33 Am. Rep. 530. In that case the court said: “The Constitution means just what a fair and reasonable interpretation of its language imports. No person shall be compelled to he a witness; that is, to testify against himself.” In Ex Parte Cohen, 104 Cal. 524, 38 Pac. 364, 26 L. R. A. 423, 43 Am. St. Rep. 127, the court said that the •object of the provision was to grant immunity to individuals from compulsory self-accusation. Several cases •■are cited to us by appellant directly or indirectly bearing •on this proposition. The typical case is where a party is brought before a grand jury, sworn, questioned, and claims the privilege, and is subsequently found guilty of contempt for refusal to answer questions upon the order of the ■court. No case is cited to us by appellant, nor are we able to find any where the facts are even reasonably similar to those of the case at bar. Here the appellant made .statements before the coroner’s jury of his own volition. His mind was not influenced through fear or any sort •of coercion. All he said was perfectly voluntary on his part. Under such circumstances there was no compulsion to testify, and the very foundation for the application of the constitutional provision is lacking. Not having been deprived of this constitutional right, appellant has not been deprived of “due process of law” under the fourteenth amendment to the Constitution of the United States. [3] Appellant complains of the action of the trial' court in admitting in evidence, on the cross-examination of the accused, testimony to the general effect that appellant had known a certain unmarried woman for about nine years; that he was the father of five children born to-said woman; that he had supported her and her children prior to his marriage; that he had contributed to her support and that of her children since several months after the death, of his wife, and that he married her a year and several months after the death of Ana Barela Ascarate.In this regard appellant says the ostensible purpose of’ such evidence wa§ to show motive, but that its real purpose was to prejudice the jury against the defendant by showing that he was a person of bad morals. The Attorney General, who was of counsel in the case in the trial" court, takes sharp issue with appellant’s counsel on this declaration. However, the question is whether such evidence was admissible. We are of the opinion that it was-admissible. Evidence tending to show a motive for the-commission of - an act of homicide, if relevant, is always admissible. It seems especially applicable to cases of circumstantial evidence. See Underhill, Criminal Evidence, § 323; Wharton’s Criminal Evidence, § 900; 4 Elliott on Evidence, § 3026; 12 Cyc. 395. The doctrine, as stated in 21 Cyc. 915, is: “Although the state in a prosecution for murder is under no obligation to show a motive for the commission of the-crime charged, evidence tending to show the existence of a motive is admissible.” On page 916 of the same volume and work, it is said that: “The rule is peculiarly applicable on the trial of a husband for the murder of his wife.” In 2 Bishop’s N. C. Proc. § 630 (4) it is said: “Any motive, rendering the killing probable or explaining-it against inherent improbabilities, or otherwise helpful to the "jury as a circumstance, may be proved against the defendant. Yet it is not indispensable to a conviction that a motive should appear.” See, also, 1 Michie on Homicide, § 166, p. 708. Such evidence was relevant to the subject of motive, and there was no error in admitting it. But appellant asserts that assuming such testimony was admissible as such, it was improperly admitted on cross-examination of the accused, gfter the state had closed its case in chief. As no argument, as such, is made on this point, and no authority whatever is cited by appellant, it becomes unnecessary for us to consider it. [4] The last proposition argued by appellant is that the trial court erred in admitting in evidence the testimony of the little sister of deceased, which was to the general effect that on a certain night appellant assaulted his wife, beating her with a revolver. This directly contradicted the appellant, who testified on cross-examination that on that night he violently pushed open the door of a room of his home, striking his wife in the eye and nose with the dooi knob. Appellant' now says that the admission of such testimony was erroneous because appeh lant cannot be legally impeached on immaterial matters. No such question, however, was presented to the trial court, and that question not being jurisdictional, it cannot be raised here for the first time. See State v. Martin McDonald, 152 Pac. 1139, just handed down. No error appearing in the record, the judgment of the trial court is affirmed; and it is so ordered. Boberts, C. J., and Parker, J., concur.