State v. Smith

Citations

• 24 N.M. 405
• 174 P. 740

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appeals are heard upon the record and by the record determined, and the appellate court will’ not receive evidence to supply omissions therein; hence, where the record fails to show that a defendant in the court below had exhausted his challenges to jurors, such fact cannot be shown by evidence in the form of affidavits filed in the appellate court. P. 407</p> <p>2. A hill of exceptions is construed most strongly against the appellant. P. 407</p> <p>3. Where a challenge for cause to a juror is improperly sustained, the error will he regarded as immaterial and without prejudice if the objecting party did not challenge the juror peremptorily and his peremptory challenges were not exhausted. This upon the theory that a party must use all available means to exclude all objectionable jurors, and that a failure to do so constitutes a waiver. P. 407</p> <p>4. Where a defendant is on trial, on a charge of murdering a sheriff who attempted to rearrest him upon his escape from jail, where he was being held under a commitment, awaiting trial on a felony charge, such commitment and' jail records are competent evidence and are admissible for the purpose of showing that he was being legally confined, thus justifying the sheriff in pursuing and recapturing him, and also for the purpose of showing the motive which actuated such a defendant slaying the officer. P. 408</p> <p>, 5. Where there is no evidence warranting a verdict of manslaughter, in a prosecution for murder, the court should not instruct on the law of manslaughter. P. 409</p> <p>6. Errors in instructions, unless the same have been called to the attention of the trial court and correction sought before the instructions are given to the jury, will not be considered on appeal. P. 410</p>