State v. Martino

Citations

• 27 N.M. 1
• 192 P. 507

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Objection to the indictment, which was in all respects regular in form, to charge defendant as' a principal in the second degree according to the outward form, rather than the legal effect, of his acts, held to he properly overruled. P. 3</p> <p>2. Evidence examined, and held to justify the overruling of a motion for a directed verdict of acquittal. P. 4</p> <p>3. Where homicide is committed while the doors of a dwelling are being broken by defendant and his companion, evidence of such breaking is admissible as a part of the res gestae. P. 5</p> <p>4. Evidence examined, and held to justify the court’s refusal to take from the jury the consideration of the question of the guilt of the defendant of murder in the first and second degrees, and to confine them to manslaughter. P. 5</p> <p>5. A principal in the second degree is guilty of the crime the same as the principal in the first degree, and may he tried and convicted, even although the latter has been acquitted or convicted of a lesser degree of the offense. P. 6</p> <p>6. Instructions requested are properly refused, when the court has covered the same ground by other proper instructions. P. 6</p> <p>7. The appellant was charged in the indictment with murder as a principal in the second degree. The principal in the first degree, who did the, shooting, testified for the prosecution. On cross-examination he was asked the following questions: “Why did you shoot Joe Laval that night?” “Did you and Dominic Martino go' to the kitchen that night when you went there for the purpose of assaulting or shooting Joe Laval ? ” It is held that the court committed error in sustaining objection to these questions upon the theory that answers to the same tended to characterize the grade- or quality of the act, of which the appellant was entitled to avail himself. P 6</p> <p>8. The rule, requiring counsel to explain to the court the kind and character of the evidence sought to he elicited from a wi