State v. Ybarra

Citations

• 24 N.M. 413
• 174 P. 212

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Deliberation and premeditation, intent to kill, and other elements of murder in tbe first degree, may be shown, like other facts, either by direct proof or by circumstances from which their existence may be inferred. Evidence examined, and held to sustain verdict of murd'er in tbe first degree. p. 415</p> <p>2. Where the capacity of a witness is questioned on account of immature years and a preliminary examination touching bis competency is allowed by tbe trial court, at tbe conclusion of which tbe court expresses tbe opinion that the child is too young to testify, but thereafter upon tbe request of tbe state it permits sucb child to testify, it is to be presumed that tbe trial court exercised the discretion conferred by section 2165 Code 1915, and that tbe court adjudged the witness to be prima facie competent to testify, although the court permitted such testimony to be given subject to the right to strike the same from the jury. P. 417</p> <p>3. Tbe fact that a child states- in express terms that he does not understand the nature of an oath iSj not 'of itself sufficient ground for his exclusion as a witness, where- it clearly appears that the child has sufficient intelligence to understand the nature of an oath and to narrate the facts, accurately, and knows that it is wrong to tell an untruih and right to tell the truth, and that if he told an untruth he would be punished, and from other facts, that he is in fact competent. P. 420</p> <p>4. In a capital case it is essential that defendant be asked by the court, before judgment is passed, whether he has anything to say why sentence of the court should not be pronounced upon him. And, where it does not affirmar tively appear from the transcript of record that such inquiry was made of the defendant at the time of sentence, the judgment will be reversed; but a reversal on these grounds only affects the sentence and judgment and leaves the verdict and precedent proceeding in full f