Error to District Court, Torrance County; particular attention to that subject in the Medler, Judge.

(24 N. M. 572)

STATE V. KIDD. (No. 1886.)

and saving him from death, and whether Mrs. Farmer did not then say that the mother of the deceased must not blame the witness for

(Supreme Court of New Mexico. Aug. 24, 1917. the reason that the witness' mother was holdOn Rehearing, Nov. 12, 1918.)

(Syllabus by the Court.)

1. HOMICIDE 39, 282-DEGREE-VOLUNTABY MANSLAUGHTER-SUBMISSION OF ISSUE. Appellant was convicted of voluntary manslaughter. According to his own testimony and that of others, he was assaulted with a deadly weapon, a pistol, and threatened with immediate death. There was evidence tending to show previous illicit relations between appellant and the wife of deceased. Under such circumstances

it was not error to submit to the jury the issue as to the guilt of the defendant of voluntary manslaughter, and the proof was sufficient to support such a verdict. All that is required to reduce a homicide from murder to voluntary manslaughter is such heat of passion arising from such adequate provocation at the time as to excite in the mind such emotions as anger, rage, sudden resentment, or terror as may be sufficient to obscure the reason of an ordinary man, so as to prevent deliberation and premeditation and to exclude malice, and to render the slayer, acting as an ordinary man, incapable of cool reflection.

2. CRIMINAL LAW 899- ERRONEOUS MISSION OF EVIDENCE-WAIVER.

ing him, and that he could not go out under the circumstances. The mother of the deceased was put on in rebuttal and testified to such admissible on the theory that the circumstances conversation. It is held that the testimony was placed before the witness were such as to call for a denial if the statements were untrue, and reflected upon the truth of the testimony of the witness at the trial.

7. WITNESSES 388(10) — IMPEACHMENT PREDICATE.

A witness was asked whether he, on a certain occasion, made a certain admission concerning his knowledge of the homicide. He was then asked if he made the same admission to another person, and then asked whether he made the same admission to two other persons. Held, that the occasion of the admission was suffi ciently identified for the purpose of the impeachment.

8. CRIMINAL LAW 11701⁄2 (1) -APPEAL AND ERROR-ADMISSION OF EVIDENCE.

Where the context of a question shows that the time referred to must have been just after the homicide, instead of just before, as it appears in the transcript, complaint of the incomAD-petency of the evidence will not be heard on that ground.

MOTION TO

The error in admitting a photograph in evidence which has not been accounted for is waived by a subsequent admission by the party concerned of its genuineness. 3. CRIMINAL LAW 407 (1), 1044—EVIDENCE ADMISSION BY SILENCE WITHDRAW REMARKS FROM JURY. Appellant was charged by the mother of the deceased with illicit relations with the wife of the deceased, and he failed to deny the same. The evidence was correctly received by the court as an admission by silence. In overruling an objection to the evidence, the court stated that he admitted it on the theory of an admission by silence, and that he regarded the silence of appellant as of great importance. While exception to the remarks was taken, no motion to withdraw the remarks from the jury was made. It is held, for that reason, that no available error intervened.

4. CRIMINAL LAW 899 OF WITNESS-REVIEW.

- QUALIFICATIONS

9. CRIMINAL LAW 1170(2) - IMMATERIAL ERROR ADMISSION OF CUMULATIVE EVIDENCE.

EVIDENCE-CARTRIDGES.

Two cartridges, suitable for use in the gun of the deceased, and unsuitable for use in the gun of appellant, were found in front of the hotel where the homicide occurred, two days after the homicide, and were offered by appellant. The circumstances were such that the

Colt's six-shooter during the controversy, and no proof was offered that he did in fact afterwards unload the gun. It is held that the court properly excluded the cartridges for want of relevancy.

Where counsel object to a question calculat-deceased had no opportunity to unload his 45 ed to qualify a witness to speak to a certain point, and have opportunity given them by the court to disqualify the witness, but failed to do so, they cannot complain of his testimony. 5. CRIMINAL LAW 1169(1)-ADMISSION OF EVIDENCE-HARMLESS ERROR.

A witness was allowed to testify that one of the defendants was a go-between between appellant and the wife of the deceased. In so testifying the witness was detailing the reasons she had for ordering the man away from her hotel, and gave all of the facts upon which she based her inference that he was a go-between. It is held that the admission of this evidence was harmless error under the circumstances. 6. CREDIBILITY OF WITNESS-FAILURE TO DE

NY STATEMENT.

A witness testified for appellant that he was in the hotel in front of which the homicide occurred; that he heard a shot, and then went to the door and saw the deceased in the act of picking up a six-shooter from the ground, and the appellant in the act of drawing his pistol from his pocket. He was asked on crossexamination whether, shortly after the killing, the mother of the deceased did not, in the presence of his mother and a Mrs. Farmer, upbraid him for not going to the assistance of her son

11. HOMICIDE 203 (3)

TION-ADMISSIBILITY.

DYING DECLARA

A witness testified to a dying declaration by deceased when he was conscious and knew of his imminent and impending death, according to the witness. Counsel, for exclusion of the declaration, relied upon the testimony of physicians to the effect that the deceased was in a semicomatose state both before and after an operation for the wounds upon him, but did not seek, by cross-examination, to disqualify the declaration. Under such circumstances the declaration was properly admitted.

12. CRIMINAL LAW 1036(3) — ADMISSIBILITY OF EVIDENCE-APPEAL.

A witness testified as to statements made by a codefendant as to the circumstances of the killing. No application was made to have the evidence limited to the codefendant, and the evidence at the time it was admitted was competent against the codefendant. Under such circumstances, no complaint can be made here by appellant.

13. CRIMINAL LAW

TION TO EVIDENCE.

Counsel must object to questions calling for objectionable testimony, and a subsequent motion to strike the same may be properly refused. 14. CRIMINAL LAW 899- ADMISSION OF

696(5)—TRIAL-OBJEC- | and ordered him off the premises, and that he spoke to the appellant and told him that he had been ordered away from there long ago and that he had come back, and that they had hot words; that thereupon the appellant pulled his gun and shot the deceased and then shot again; that the deceased was weakened physically by the shots, and staggered back and fell when he finally succeeded in pulling his gun, and Jay rushed in and knocked it out of his hand; that the deceased's hands were hanging down, a cigarette in one of them, his gun untouched, at the time the shooting began.

EVIDENCE-CROSS-EXAMINATION-APPEAL. Where counsel, although given opportunity by the court, failed to cross-examine a witness sufficiently to destroy the foundation for secondary evidence of the contents of a letter, they cannot be heard to complain of the admission of such secondary evidence.

(Additional Syllabus by Editorial Staff.) On Rehearing.

15. WITNESSES 406-CONTRADICTORY EVI

DENCE.

Where defendant's witness testified that he saw deceased picking up a six-shooter, and defendant then drawing a pistol from his pocket, and did not claim to have left the house to assist deceased, testimony that he was reproached by deceased's mother for not assisting deceased, and that a person present had said that he should not be blamed, admitted because calling for denial by witness and as reflecting upon his credibility, was irrelevant.

16. CRIMINAL LAW 1169(1) — EVIDENCE —
PREJUDICIAL ERROR.
In a prosecution for murder the erroneous
admission of irrelevant evidence to discredit de-
fendant's principal witness, and his only wit-
ness on a material point, was prejudicial, and
entitled defendant to a reversal.

The appellant and Tyler both testified to an entirely different state of facts. They both testified that the deceased, when he came out of the hotel, walked up to the appellant, pulled his gun, and said to him, "Oscar Kidd, I am going to kill you, you God damned son of a bitch!" that Jay thereupon reached to catch the gun of the deceased, but missed it and struck the deceased's arm, causing him to drop the gun; that he and the deceased both reached for the gun, but that the deceased got it first. They both testified that appellant did not pull his gun until after the deceased pointed his gun at appellant; that he did not shoot until after the gun had been

Appeal from District Court, Mora County; knocked out of the hand of the deceased and D. J. Leahy, Judge.

Oscar Kidd was convicted of voluntary manslaughter and he appeals: Reversed and remanded, with instructions to grant a new trial.

H. W. Clark, of San Francisco, Cal., and S. B. Davis, Jr., of East Las Vegas, for appellant. H. S. Bowman, Asst. Atty. Gen., for the State.

PARKER, J. The appellant, together with one Bert Jay, was indicted for the murder of Paul Tyler. Jay was acquitted and the appellant was found guilty of voluntary manslaughter. He brings this appeal.

until he was picking the same up from the ground; that the deceased, after the first shot, straightened up and pointed his gun at the appellant, and that appellant thereupon fired the second shot; that after the second shot was fired they both ran around the cor

ner of the hotel.

There was evidence introduced in the case tending to show illicit relations between the appellant and the wife of the deceased prior to the homicide.

[1] 1. The first and most important question presented in behalf of appellant is to the effect that there was no evidence in the case to support the verdict of guilty of voluntary manslaughter. The argument in support of this proposition proceeds upon the theory that the evidence for the prosecution

made out a clear case of murder in the first

It appears that Jay and appellant were in the town of Roy on October 14, 1915, and were preparing to leave the town for the ranch where they were then living. They hitched their team to a wagon loaded with degree. On the other hand, the evidence for supplies, and left it near the Tyler Hotel, the defense made out a clear case of selfwhich was conducted by the father and defense. It is therefore argued that there mother of the deceased. They went to the is no middle ground which the jury could hotel for the purpose of getting some arti- take, and that a verdict of guilty of voluncles which they had left in the room they tary manslaughter is necessarily unsupporthad occupied. Upon arriving at the hotel ed by any evidence in the case. It is argued they were met by Sam Tyler, the father of that there is no evidence of sufficient provocathe deceased, to whom they stated what they tion for heat of passion nor any evidence of wanted, and he told them to wait until he heat of passion in fact. It is pointed out could go upstairs and get them the articles. that mere words are never suflicient provocaMrs. Sam Tyler came out of the hotel before tion for heat of passion, and that, so far as her husband started upstairs to get the ar- the evidence is concerned, it is argued that ticles. She testified that as her husband was there is no evidence of anything but words going for the articles, and after he was out on the part of the deceased against the deof her sight, her son, the deceased, stepped fendant. The argument in this regard is out of the hotel and walked up to Bert Jay faulty. The facts, as made out by the appel

lant and his witness, show more than words; | from many text-writers and cases, and points in fact, they show an assault with a deadly out that if the circumstances are both adeweapon and a threat to then and there kill quate to raise, and sufficient to justify, a bethe appellant. It appears from the testimony lief, by an ordinary man, in the necessity to for appellant that he was about then and take life in order to save oneself from death there to be killed by the deceased. This or great bodily harm, where the belief exists situation, together with his guilty knowledge and is acted upon, the homicide is excusable of past illicit relations with the wife of the upon the theory of self-defense. On the other deceased, was sufficient, if the jury so be- hand, if the act is committed under the inlieved, to cause in his mind such a state of fluence of an uncontrollable fear of death or terror as to deprive him, temporarily, of great bodily harm, caused by the circumjudging and viewing the situation in a calm stances, but without the presence of all the and reasonable manner. All that is requir- ingredients necessary to excuse the act on ed is sufficient provocation to excite in the the ground of self-defense, the killing is manmind of the defendant such emotions as ei- slaughter. In Johnson v. State of Wis., 129 ther anger, rage, sudden resentment, or ter- Wis. 146, 108 N. W. 55, 5 L. R. A. (N. S.) 809, ror as may be sufficient to obscure the rea- 9 Ann. Cas. 923, after citing and quoting son of an 'ordinary man, and to prevent de- from many cases, the court states the rule liberation and premeditation, and to exclude to be that the heat of passion which will malice, and to render the defendant incapa- reduce what would otherwise be murder to ble of cool reflection. Michie on Homicide, p. manslaughter is such mental disturbance, 185. In Johnson v. State, 22 Tex. App. 206, caused by a reasonable, adequate provoca225, 2 S. W. 609, the deceased had previously tion, as would ordinarily so overcome and assaulted the defendant with a deadly weap- dominate or suspend the exercise of judgon and threatened his life, and on the day of ment of an ordinary man as to render his the homicide defendant was in a village mind incapable of forming and executing that near his home attending to his business when distinct intent to take human life essential to the deceased arrived on horseback, dismount- murder, and to cause him, uncontrollably, ed, and threw his hands behind him as to act from the impelling force of the disthough to his hip pocket. Defendant started turbing cause, rather than from any real for his horse, and the deceased approached wickedness of heart or cruelty or recklessness as though to intercept him and came within of disposition. Attached to this case as rea few feet. Under such circumstances the ported in 5 L. R. A. (N. S.) 809, is a note court held that it was not error to submit collecting many of the cases upon this subthe issue of voluntary manslaughter to the ject. See, also, 13 R. C. L. Homicide, § jury, and held that such conduct on the part 93 et seq. of the deceased was adequate cause to excite in the mind of the defendant such terror or resentment as rendered it incapable of cool reflection. In Commonwealth v. Colandro, 231 Pa. 343, 80 Atl. 571, the appellant was convicted of murder. He testified that he had been threatened by the deceased that unless he paid the deceased $200 by a certain time that the deceased would kill him; that just before the homicide a messenger came from the deceased stating that the deceased would give him just ten minutes to come out of the house, and that then another messenger came and informed him that if he did not

Applying some of the considerations heretofore mentioned to the facts in the case at bar, it is apparent that there is ample evidence to sustain a conviction of voluntary manslaughter. The defendant was shown by the evidence to have been guilty of the acts tending to show his illicit relations with the wife of the deceased, and he was shown to have had knowledge that the mother of the deceased knew of and upbraided him for such relations. He was assaulted, according to his own testimony, by the deceased with a deadly weapon, and was threatened then and there with death at the hands of the deceased. This was sufficient provocation for heat the existence of heat of passion in fact, and of passion, and was sufficient evidence of it was therefore proper for the court to subback into the house and put his shotgun in the jury had a right to determine, as they mit the issue to the jury. On the other hand, did determine, that his plea of self-defense and pushed it open, and told the defendant was not justifiable under all the circumstancthat he was going to kill him, and started es, and had a right to conclude from the evito shoot into the room with a revolver; that dence that the defendant went to the hotel the defendant, fearing that he was in danger unjustifiably under all the circumstances. of losing his life, took up his gun and fired the fatal shot. Under these circumstances the court held that it was error to instruct the jury that self-defense was the only issue in the case and to eliminate the possibility

come out the deceased would come to the house and kill him within five minutes; that the defendant came out, and met the deceased, who again demanded the money, and that the defendant became frightened and went

the kitchen; that within a few minutes after this the deceased came to the kitchen door

The line of demarcation between a homicide which amounts to voluntary manslaughter and one which amounts to justifiable homicide in self-defense, is not always clearly defined and depends upon the facts of each