This opinion was the first considered by the court, and, since the statement of facts therein is satisfactory to the other members of the court, I am filing it without modification as my dissenting opinion.
Shortly after dark on February 14, 1933, Lee Marshall, an old man, alone on a ranch forty miles from Tucumcari in Quay county, opened the door of his dugout for the purpose of throwing out dish water. Two masked men were near the door. They ordered Marshall to throw up his hands and one of them shot a hole through the dish pan. They struck Marshall down, bound him hand and foot, and, for a period of time estimated by Marshall at from an hour and a half to two hours, they tortured him in an endeavor to make him tell where his money was hidden. They took off his clothing, and appropriated 25 cents and a pocketknife found in his pockets. Finally, after dragging Marshall about with a chain about his neck, striking him on the head, and burning his feet and other parts of his body with a torch, they took him back to the dugout from a garage 100 feet away, poured gasoline or coal oil over his underwear, and either set fire to it or his underwear was ignited from a fire on the floor of the dugout. They put out the fire, tearing the underclothes off after Marshall had received burns from which he died two days later, threw him on the bed, covered him up, and departed. The men were drinking whisky. Marshall said he thought the boys were just trying to "play drunk" on him until they got so rough. They took several drinks while they were torturing Marshall.
Roy Reed and Leonard Beck were charged with the crime, and were convicted of murder in the second degree upon trial in Curry county, where the cause was taken on change of venue. From the judgment and sentence of the court, this appeal is prosecuted.
The evidence would have supported a verdict of murder in the first degree. The state made a submissible case which was greatly strengthened by the admissions of the appellants, who testified in their own behalf. They denied being present at the scene of the crime, and relied upon an alibi. They claimed to have spent the evening with two young women in Tucumcari. According to the state's witnesses, these young women were in *Page 53 attendance on a party at the house of a neighbor on the evening of St. Valentine's Day, the 14th of February, and the defendants were not present.
The main point relied upon by appellants is "that the court erred in submitting to the jury over the objections of the defendants a degree of unlawful homicide not within the proofs, to wit, the question of murder in the second degree." Objections were timely made by the appellants, and exceptions taken to the instructions of the court submitting murder in the second degree.
In State v. Brigance, 31 N.M. 436, 246 P. 897, we held that (syllabus 1) "a homicide committed by one so intoxicated as to be incapable of deliberation is not murder in the first degree." Brigance shot his victim, and, in addition to the requested instruction on intoxication, pleaded self-defense. In the case at bar, in which it will be noted there was evidence of intoxication, the information, modeled after the indictment in Territory v. Vialpando, 8 N.M. 211, 42 P. 64, charged murder in the first degree by torture as defined therein. The question arises as to whether or not the doctrine of the Brigance Case, supra, is applicable to the crime of murder by torture under our statute.
In Territory v. Vialpando, supra, the territorial court said: "Our statute defining murder generally says it is the unlawful killing of a human being with malice aforethought, express or implied, and it declares that all murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any kind of willful, deliberate, and premeditated killing, etc., shall be deemed murder in the first degree. * * * It is to be noticed that to elevate any other murder to the grade at which `murder perpetrated by means of poison, or lying in wait, torture,' is placed by our statute, the killing must be willful, deliberate, and premeditated. In other words, an unlawful killing of a human being, with malice aforethought, perpetrated by torture, is murder in the first degree, without other description, such as `willful, deliberate, and premeditated.'"
At common law, deliberation was not essential to constitute an unlawful homicide murder.
"By the common law, neither deliberate premeditation, nor express malice or intent to kill, is required to make an unlawful homicide murder, but malice may be implied from the use of a deadly weapon or other significant facts." Tucker v. U.S.,151 U.S. 164, 14 S. Ct. 299, 301, 38 L. Ed. 112.
And, under a New York statute providing that no act committed by a person while in a state of voluntary intoxication should be deemed less criminal by reason of his having been in that condition, but that the fact the accused was intoxicated might be taken into consideration in determining the purpose, motive, or intent, the following rule was laid down: "When criminal intent in general is all that need be established, the drunken defendant is treated as if he knew the consequence of his acts; but where a particular or specific intent must be established, if the jury find that the mind of the defendant was so obscured by drink that he was incapable of *Page 54 forming that intent, it may justify itself in the reduction of a charge." People v. Koerber, 244 N.Y. 147,155 N.E. 79, 81.
In the case quoted, the court reversed a judgment of first degree murder for a killing while in the commission of robbery from the person killed on the ground that a proper instruction had not been given; there being a question for the jury as to whether defendant was too drunk to form a specific intent to commit robbery.
See, also, with reference to the proper instructions, Milburn v. Commonwealth, 223 Ky. 188, 3 S.W.2d 204, where it is held that drunkenness should not be singled out from the other proof, and the jury should not be instructed that it mitigates the offense.
It thus appears both by reason and authority that intoxication is no defense to, and that the doctrine of State v. Brigance, supra, does not apply to, murder affected by poison or torture, for deliberation is not of the essence of the offense, being eliminated by the statute. See Director of Public Prosecutions v. Beard, [1920] A.C. 479, 12 A.L.R. 846 and annotation; annotation, 79 A.L.R. 897; State v. Reagin, 64 Mont. 481, 210 P. 86; State v. Le Due, 89 Mont. 545, 300 P. 919. Compare as to materiality of deliberation, State v. Newsome, 195 N.C. 552, 143 S.E. 187.
This brings us to a consideration of the effect of the trial court's error in submitting to the jury instructions as to second degree murder.
Appellants, who made no objections to the form of the instructions submitting murder in the second degree, plant themselves squarely on the proposition that the crime was murder in the first degree or nothing, and that, under State v. Hunt,30 N.M. 273, 231 P. 703, and other cases cited in their brief, it was reversible error for the trial court to submit the lesser degree of homicide in the absence of evidence supporting the charge; and, since the conviction of murder in the second degree is in effect an acquittal of the only crime of which they could be guilty, that is, murder in the first degree, they are entitled to be discharged. Notwithstanding many criminals have escaped punishment under the doctrine contended for in this state and other jurisdictions, some of the ablest jurists the country has produced, among them the late Frank W. Parker, who for a third of a century graced the bench of this commonwealth, have insisted upon its maintenance. The reason for this time-honored rule has been thus stated: "For obviously, if the defendant in such case is not guilty of murder in the first degree, his liberty should not be dickered away by a compromise verdict upon another degree which is supported by no evidence."
See Bandy v. State, 102 Ohio St. 384, 131 N.E. 499, 21 A.L.R. 594, and annotations; State v. Pruett, 27 N.M. 576, 203 P. 840, 21 A.L.R. 579, supporting the proposition advanced by appellants.
Other courts have taken the view that the error in submitting the included offense was not prejudicial to the defendant, and that he should not be allowed to complain if the jury shows mercy to him and finds him guilty of a lesser degree. A leading case is State v. Yargus, *Page 55 112 Kan. 450, 211 P. 121, 27 A.L.R. 1093. In that case the court said:
"Maude Yargus was charged with committing murder in the first degree by means of poison. She was convicted of murder in the second degree, and appeals. In her behalf it is contended that murder by the administration of poison is necessarily murder in the first degree, and cannot constitute murder in the second degree; that the trial court erred in instructing the jury that the defendant might be found guilty of second degree murder; and that for these reasons a motion in arrest of judgment should have been sustained, or at all events a new trial should have been granted. * * * The view that the defendant cannot be heard to complain because, under evidence which really justified only a conviction of the offense charged or an acquittal, she was convicted of a less serious charge included within it, is supported by the following cases: Price v. State, 82 Ark. 25,100 S.W. 74; People v. Washburn, 54 Cal. App. 124, 201 P. 335; State v. Dimmitt, 184 Iowa, 870, 169 N.W. 137; State v. Rodgers,91 N.J. Law, 212, 102 A. 433; Ryan v. State, 8 Okla. Crim. 623,129 P. 685; Hunter v. State, 6 Okla. Crim. 446, 119 P. 445; Wyatt v. State, 55 Tex.Crim. R., 114 S.W. 812; Jenkins v. State, 60 Tex. Crim. 465,132 S.W. 133; Gatlin v. State, 86 Tex.Crim. R.,217 S.W. 698. See, also, Johnson v. State (Tex.Cr.App.) 45 S.W. 901.
"The contrary rule obtains in Georgia (Kendrick v. State,113 Ga. 759, 39 S.E. 286), and was in force in Missouri (State v. Mahly, 68 Mo. 315 [3 Am. Crim. Rep. 183]) until changed by statute (State v. Mittner, 247 Mo. 577, 153 S.W. 1020).
"The weight of judicial opinion seems to favor the conclusion we have reached, but we base it, not upon authority, but upon the soundness of the principle that the defendant should not be allowed to derive an advantage from an error from which she suffered no injury, but, on the contrary, derived a benefit."
Other cases supporting the doctrine approved in the Yargus Case, supra, are Lindsey v. State, 69 Ohio St. 215, 69 N.E. 126; State v. Allison, 330 Mo. 773, 51 S.W.2d 51, 85 A.L.R. 471; Sharp v. State, 175 Ark. 1083, 3 S.W.2d 23; State v. Phinney,13 Idaho, 307, 89 P. 634, 12 Ann. Cas. 1079, 12 L.R.A. (N.S.) 935 and note.
In Irby v. State, 18 Okla. Crim. 671, 197 P. 526, 531, the court considered that: "* * * Even if the evidence did not warrant an instruction for manslaughter, it is an error in the defendant's favor of which he has no cause to complain. Under the provisions of the Code of Criminal Procedure — `The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense.' Section 5923, Rev. Laws."
In November, 1927, we referred to the above-quoted Oklahoma statute in distinguishing the condition of their laws on this subject from ours. See State v. Taylor, 33 N.M. 35, 261 P. 808. At the next session of the Legislature the following was added by way of amendment (chapter 48, L. 1929) *Page 56 to section 9 of chapter 145, Laws 1925: "Provided the jury trying the cause may find the defendant or defendants guilty of any offense the commission of which is necessarily included in that with which he or they are charged."
This amendment was passed at a time of widespread public dissatisfaction with so-called "technicalities" of the law which permitted criminals richly deserving of some punishment to go unwhipped of justice. Some significance may be attached to the fact that, at the time of the enactment quoted, the defendant in State v. Stewart, 34 N.M. 65, 277 P. 22, a case which attracted a great deal of attention, especially in the southern half of the state, was advancing the contention on his second appeal, then pending, that the evidence showed him guilty of first degree murder or nothing, and that, having been convicted of second degree murder, he should therefore be discharged. In passing upon the doctrine there advanced and here squarely involved, we cannot but regard the amendment of 1929 as the response of the Legislature to the demand of the public that the discharge of criminals on technicalities cease.
In considering the language of the 1929 amendment above quoted, the rule laid down by Judge Cooley in People ex rel. Twitchell v. Blodgett, 13 Mich. 127, is a safe one to follow. He said: "Few persons, if any, would be immediately impressed that the words were ambiguous, and might mean something else. Still fewer would discover in them such an evident purpose to discard the principle of the amendment of 1839, as would be naturally expected to appear if the purpose existed. If I am right in this, then further examination, with a view to find some other and more subtle meaning, ought to be made with extreme caution, lest we deceive ourselves into disregarding the plain and obvious sense for some other, which only ingenuity discovers and suggests."
It is the province of the Legislature to fix the penalties for crime and to prescribe, under the Constitution, the limitations of the jury. Under this legislative mandate, we feel constrained to hold, whatever may heretofore have been the rule in this jurisdiction, that it was not reversible error for the trial court to submit murder in the second degree.
Appellants' second point is based upon the alleged erroneous admission into evidence of a statement made in their presence by Jack Carr, one of their companions, to the witness Grady Huffman, to the effect that: "We are going out to do some highjacking; do you want to join our gang." Carr spoke in a loud voice in a pool hall, while under the influence of liquor. He was one of the five parties named by the deceased when asked by the sheriff if he could give any suggestions or if he had any suspicions as to the identity of the two parties who had tortured him. The evidence complained of was withdrawn from the jury the following day under proper instructions from the court. Ordinarily, error in the admission of evidence is cured by withdrawing such evidence and directing the jury to disregard it. State v. Stewart, 34 N.M. 65,277 P. 22; State v. Dendy, 34 N.M. 533, 285 P. 486. It is pressed *Page 57 upon us, however, that this evidence was so prejudicial that its withdrawal after the jury had had it in mind for a whole day at the beginning of the trial did not correct the error or repair the damage. This contention cannot now be considered; appellants having failed to move for a mistrial below. State v. Stewart,30 N.M. 227, 231 P. 692, 693. See, also, concurring opinion of Mr. Justice Adams in State v. Newsome, supra.
Appellants' next two points are directed to alleged erroneous rulings of the court limiting the cross-examination of the sheriff.
The first ruling complained of was clearly proper, since appellants were attempting to prove a point in their defense not touched upon by the state in the direct examination of the witness. The rule controlling the point is thus stated in State v. Archuleta, 29 N.M. 25, 217 P. 619, 620: "The rule in this jurisdiction is in accordance with the general trend of American authority, which is to the effect that the proper cross-examination of the witness shall be limited to the subject-matter and scope of his direct examination. State v. Rodriguez, 23 N.M. 156, 167 P. 426, L.R.A. 1918A, 1016. See, also, 28 R.C.L. `Witnesses,' § 194. When an examiner goes beyond the scope of the direct examination, he makes the witness his own. Whether the court will allow the examiner to thus make the witness his own during the progress of the development of the proof by the opposite party is a procedural question, resting, ordinarily, in the discretion of the trial judge, who has under all ordinary circumstances complete control over the order of proof."
See, also, State v. Stewart, 34 N.M. 65, 277 P. 22; State v. Martinez, 34 N.M. 112, 278 P. 210.
By the second ruling complained of it is contended that the court erred in refusing to permit appellants on cross-examination of the sheriff to bring out fully the conversations had by the witness with appellants as to their having been with the Shipman girls from 7:30 until 10:30 or 11 p.m. on the night of the homicide.
After the sheriff had testified on cross-examination that appellants had maintained in all their conversations with him that they were together on the night of the 14th of February, he was further asked:
"Q. Now I believe you said, going back to the conversation you had with the defendants, I believe you asked them — I believe you testified you asked them where they were on Tuesday night, the 14th day of February of this year, did you? A. Yes, sir.
"Q. Did they or not tell you that they arrived at the Shipman home at approximately seven-thirty and remained at the Shipman home until about ten thirty or eleven o'clock?
"Mr. Compton: We object, if the court please, it is apparent it is a self-serving declaration.
"The Court: Objection sustained.
"Mr. Moore: Note an exception."
The sheriff, having on direct examination given parts of these same conversations in evidence, appellants were entitled to have the witness answer the question whether the *Page 58 parts of the conversation called for were self-serving or not. Territory v. Claypool, 11 N.M. 568, 71 P. 463; State v. Dendy, 34 N.M. 533,285 P. 486. But the matter was fully developed later, and the sheriff testified to the main points maintained throughout by appellants and their witnesses, the Shipman girls, that they were together during the day and evening of the 14th and not near the ranch where the deceased was tortured. That the appellants maintained this position consistently from their arrest to the end of the trial was never questioned by the state. Their witnesses corroborated them. The veracity of all the witnesses who testified was a question for the jury, and for the sheriff to have given further details of the statements made to him by appellants could have had no effect on their verdict. We therefore hold that the error of the trial court in not permitting the witness to answer the question asked was not prejudicial.
The last point urged upon us for reversal is that the court erred in submitting to the jury instruction No. XXII relating to flight. Appellants were told on Saturday evening that the sheriff had been at their place of abode during the afternoon, looking for them in connection with his investigation of this homicide, and had left word for them to report at the courthouse. They were arrested about 2:30 a.m. the next morning on the highway some 40 miles distant from the courthouse, and said they were going to Logan for gas and oil, preparatory to making a trip to Hot Springs, some 300 miles distant. There was evidence that they had sought advice after receiving word from the sheriff and were advised to surrender, after Hot Springs had been mentioned as a hideout. This evidence amply justified the court in instructing the jury as to flight, and its action therein was not erroneous.
Believing that the judgment should be affirmed, I dissent.