The defendant, Yarberry, was indicted for murder in the second district court of the county of Bernalillo, May term, A. D. 1882.
He was tried at the same term, convicted of murder in the first degree and sentenced to be hung; he appeals to this court, and urges particularly the following reasons why he ought to be granted a new trial:
The first reason given is “ that the court had no jurisdicdiction of the person or subject-matter, and the indictment Is void on its face for lack of jurisdiction, the said indictment part of the said record is not in the name of the United' States of America, for the violation of section 5339 of the United States Revised Statutes, and the indictment is fatally defective because it is drawn in the ñame of the territory,, for violation of the territorial law, instead of in the name-of the United States for violation of the act of congress relative to the crime of murder.”
The organic act establishing a territorial government for New Mexico was approved September 9th, 1850.
It has now been in force over thirty-two years, and has been acquiesced in during all that period by every department of the general government. As early as the December term, 1857, in the case of Leitensdorfer v. Webb, the Supreme Court of the United States recognized the validity and binding force upon them of this organic act.
The court says : “It was undoubtedly within the competency of congress to define directly by their own act the jurisdiction of the courts created by them, or to delegate the authority requisite for that purpose to the territorial govex-nment. This power,” they continue, “ we considex-, was in fact delegated by congress to the texTitorial government by the seventh section of the act of 1850, which declaims that the legislative power of the terx-itox-y shall extend to all rightful subjects of legislation, consistent with the constitution of the United States and with the provisions of this act:” 20 Howard, p. 177. Congress in the exercise of its undoubted right to govern the territories, has deemed it inconvenient ox-inexpedient to provide a body of municipal laws for them, but has erected territorial govex-nments and delegated to them authority to enact such laws: Franklin v. United States, 1 Col., 35.
A year prior to the decision in Leitensdorfer v. Webb, which went up from this territox-y, the celebrated Dx-ed Scott case had been decided, the venerable Chief Justice Taney delivering the opixiion of the court. This great judge does not limit congress in their power to govern territories to the clause of the constitution which enables them to make all needful rules and regulations respecting the territory or other property belonging to the United States, but puts it on the broad ground of sovereignty. “ The right to govern is the inevitable consequence of the right to acquire territory.” As to form of territorial government he says: “In some cases a government consisting of persons appointed by the federal government would best subserve the interests of the territory.” In other instances it would “ be more advisable to commit the power of self-government to the people who had settled in the territory, as being most competent to determine what was best for their own interests:” 19 How., pp. 443-449. The expression in this opinion “ to commit the power of self-government to the people ” is the equivalent of “ delegate the authority requisite,” used in Leitensdorfer v. Webb.
Strictly within the limits of this grant of power, the legislature of New Mexico has declared that the unlawful killing of a human being with premeditated design to effect death is murder in the first degree, and that any person convicted of the same shall suffer death. This statute is consistent with the constitution and laws of the United States. It would be inconsistent with the foregoing reasoning to hold that New Mexico is either a fort, arsenal, dock-yard, magazine or district of country under the sole and exclusive jurisdiction of the United States. We therefore conclude that this indictment Avas properly found in the name of the territory of New Mexico for violation of territorial law.
The second class of objections are to the grand and petit jurors. These were not taken till after trial and conviction, and cannot now be considered: Territory v. Abeita, 1 N. M., p. 546; 1 Bishop, pp. 875-887; Wharton’s Criminal Pleadings and Practice, p. 350, and authorities there cited.
The third class of objections is to conduct of trial, particularly as to ruling out certain evidence offered by defendant. Before proceeding to consider these objections it will be proper to state some of the facts of the case; for it is only by reference to the facts that the rulings of the court below can be clearly understood.
The evidence shows that the defendant, Milton Yarberry, was at the time of the homicide acting as a peace officer in the city of Albuquerque, where the killing occurred. That it was within the scope of his duties to prevent the carrying and using of deadly weapons by persons other than peace officers; that by the statutes of New Mexico it is a misdemeanor to carry such weapons, and all peace officers are required to arrest and disarm persons unlawfully carrying or unlawfully using the same in towns or cities; that, on the night when .the homicide was committed, Yarberry and a person by name of Ronan, and another by name of Boyd, were together, when they heard a shot fired down the street some doors below them. They did not start Immediately in the direction whence the shot came, and Yarberry said something to one of these men just before he went in the direction where the shot was heard. The defense asked this question :
“Mr. Ronan, please state what was said by Yarberry, the defendant, when his attention was attracted to where this first shot was fired immediately preceding this occurrence ?”
On objection, this question was ruled out. Yarberry and Boyd went down the street to where the shot was heard. It was between 8. and 9 o’clock at night, a number of men were in the vicinity, the deceased, Charles Campbell, was walking slowly along from where the shot was fired. Yarberry called out to him to stop, and to hold up his hands, and at the same instant Yarberry and Boyd commenced firing at Campbell, he fell forward on his face and instantly expired, pierced by six balls, all from behind — all entering his back, Yarberry did not go to the body of the dead man. but turned and went into a saloon. At this point the second question asked was excepted to as follows : “ The court below erred in ruling that it was not competent or relevant for the appellant to show what statement he had made to the sheriff, Perfecto Armijo, on the occasion of the appellant’s arrest by the latter four or five minutes after the occurrence in question, in answer to the question of the latter, ‘ What is the trouble, Milt V ” The third question asked was as to what deceased said a short time prior to the shooting. It is in evidence that the prisoner and deceased were strangers to each other. This is the statement of the prisoner himself. The question is as follows : On the direct examination of J. H. Greenleaf, a witness on behalf of the defense, witness testified that a short time before the occurrence of the shooting which resulted in the death of Campbell, the deceased was in his (witness’) father’s saloon, and witness was then asked to state what occurred there at that time; to which question he answered : “ Well, he was in there, and he shook the dice with my father for drinks, and my father beat him. My father asked him to pay for the drinks, and he said-:” Objected to on the ground of irrelevancy; objection sustained. The first two questions relate to wliat the prisoner said a short time before and a short time after the shooting. It is claimed by defendant’s counsel that they ought to have been admitted as part of the res gestes. “ The general rule as to res gestes is that all declarations made at the same time the main fact under consideration takes place, and which are so connected with it as to illustrate its character, are admissible as original evidence, being what is termed a part of the res gestes, in other words, a part of the thing done.” The cries of the bystanders while the thing is being done are original, and not hearsay evidence, because they are part of the res gestes, but a defendant may not manufacture evidence for himself, either before or after or in the moment of the assault, and claim its admission under this head, and in no just sense can words spoken several moments before or after the event be considered a part of the thing done. We think the objections to these questions were properly sustained.
It was sought to introduce the testimony of Greenleaf to show declarations of Campbell and his motives, but we cannot see what this can possibly have to do with the case; he was not acquainted with Yarberry, and it is not claimed by defendant that he had committed or attempted, or threatened to commit any felony, nor that his words, whatever they were, came to the ears of Yarberry. All this conversation was clearly irrelevant, and no error was committed by the court in excluding it. The defendant’s counsel calls our attention to the case of Wiggins v. People, 3 Otto, Supreme Court Reports, p. 465. A portion of the syllabus is as follows :
“ In a trial for homicide, where the question whether the prisoner or the deceased commenced the encounter which resulted in death is in any manner of doubt, it is competent to prove threats of violence against the prisoner made by the deceased, though not brought to the knowledge of the prisoner.” The reason assigned for admitting these uncommunicated threats is to aid the jury in determining the question who fired the first shot. But it must be remembered that Yarberry and Campbell were strangers to each other, and also that there was no offer to prove that deceased made any threats of violence against the prisoner.
The fourth class of objections relate to the charge of the learned judge who tried the case. After referring to the charge as a whole, the prisoner, by his counsel, elcepts to each and every part of said charge and does not except to any particular error in law in said charge. Our rules require that he should specify distinctly the several matters in law to which he excepts ; otherwise this court will not consider such general exceptions. Upon argument before us it was contended that the judge erred in limiting the jury to murder in the first degree, or in effect stating to the jury that the •evidence showed either a murder in the first degree or a justifiable homicide. We cannot see by a careful consideration of all the charges ashed by defendant and given by the court that the prisoner’s counsel took any other view of the case, or requested the court to instruct the jury in any other manner. The facts and the law applicable to them were fairly before the jury and we cannot see that they were misled. All of defendant’s instructions'were given except the fifth, which is in the following language :
The court further instructs the jury that if you have a. reasonable doubt growing out of the evidence as to whether ■or not Milton Yarberry, the defendant, inflicted mortal wounds upon Charles Campbell, which caused his death, you must acquit the defendant.”
It will be necessary to consider the evidence in this case somewhat farther before determining whether this instruction was properly refused. The record shows that the deceased was walking slowly along the street between 8 and 9 •o’clock of a clear but not moonlight night, the lights from the stores were bright, and he was distinctly seen by two persons who were smoking their„cigars on a platform in front ■of a store not thirty feet from him. These witnesses testify that they heard a cry: “ Hold up your hands! ” Then turning their eyes in the direction from which the command ■came they saw two men, Yarberry and Boyd, some thirty feet behind the deceased, and one of these witnesses, a merchant of the city, testifies that he recognized Yarberry’s voice as giving the command, “ Hold up your hands.” At the same instant these two men commenced firing upon deceased, as rapidly as they could pull trigger — as many as ten •or twelve shots were fired instantly; six of them entered the body of Campbell, all from behind; he fell forward on his face, -and was a dead man before anyone reached him. Both •of these witnesses testify that deceased did not have a pistol, did not even turn his body, but only looked back over his shoulder. Yarberry did not go to the body, but turned into a saloon. A'citizen asked him : “ Milt, why did you do this He replied : “ I did it, and there he lies.” To another he said: “ He shot at me, but I was too quick for him, and I downed the son of a bitch.” As this case presents a state of society which is now nearly impossible, and will soon become incredible, it may be well to say that where all persons are presumedto.be armed, the order, “ Hold up your hands,” is to prevent an assaulted person from seizing his pistol, usually carried at his hip. The command is not only given by officers making an arrest, but also and more generally by highwaymen — and in the eloquent language of the attorney-general, “ The cry was the cry of a robber, and the shot the shot of an assassin.” Yarberry, in his own testimony, says that he first called “ stop ! I want you, that Campbell;” then “went for his pistol,” and said, “go back;” I then, continued Yarberry, “ fired at him, and he fired at me; I do not know wljo fired first.” There is no dispute but what Yarberry shot him several times. Boyd, who was with Yarberry, also shot him. There were six bullets entering his body, all from behind, all coming out in front. He was instantly shot to death, shot through and through by these two men, one of them a peace officer ! both of them assisting each the other, to make an arrest of a man for a supposed misdemeanor! The evidence is conclusive that Yarberry and Boyd acted in concert. They were in pursuit of a eommoix purpose and wei’e each responsible as prixxcipals.
As the instruction, if given, would have put the jury upon an unnecessary inquixy and tended to confuse their minds, we think it was properly i’efused. The point raised as to the original vex’dict as given in the Spanish laxiguage we cannot consider, for it is not a part of the x’ecord. The newly discovei’ed evidence, the finding of some pistol cartridges upon the person of deceased, has a tendency’ to strengthen some testimony that the deceased was armed at the time of his death, but is merely cumulative and would not justify the granting of a new trial. Yarberry’s statement was that he attempted to arrest this man, that the man turned and fired upon him; that he returned the shot and killed' him. Had the jury believed this statement they would .have acquitted him. They disbelieved it and found him guilty. The evidence discloses a case either of justifiable homicide or willful and deliberate murder.
The jury have passed upon it and we are not disposed to disturb their verdict. As to the. objection that the verdict does not assess the penalty as required by statute, we are disposed to take the view that it does assess it.
The verdict is in the following language: “We, the jurors, unanimously find the defendant guilty, as charged in the indictment.” The statute provides as follows: “ All questions of fact in a criminal case shall be tried by a jury, who shall assess the punishment in their verdict, and the court shall render judgment accordingly.” In finding the prisoner guilty, as charged in the indictment, the jury instructs the court exactly what judgment to render. The indictment charges murder in the first degree. The law which binds the jury as well as the court, assesses the penalty to be death. To assess this penalty in words would be surplusage, to assess any other on this finding, would be illegal. This question has, however, been- settled by previous descriptions of this court, which are here affirmed: Territory v. Romine, ante, p. 114; Territory v. Young, ante, p. 93.
The only remaining question relates to the presence of the prisoner in court during his trial. It is a well established practice that in cases of felony the defendant must be personally present during all the proceedings, and must so appear on record. But a formal averment of defendant’s presence during trial is not necessary when it can be inferred from the record. We think the record in this case shows the presence of the prisoner, although not every day by formal averment. At the arraignment the record says: “Now .comes the said defendant in his own proper person.” At the trial defendant is sworn and gives evidence. This is just as convincing of his presence as a formal statement. On motion for new trial and in arrest of judgment “ the defendant in his own proper person moves the court.” At the sentence the record says: “Now comes the said plaintiff by her district attorney and the said defendant in his own proper person and by his attorneys.” The eleventh specification in the motion for a new trial is in the following words : “ The jury was not polled as the defendant had a right to have done, owing to the absence of his counsel, when the verdict was rendered late at night.” This is as much a part of the record as if made by the clerk of the court, and we think the averment that his counsel was absent plainly implies that the prisoner was present. The absence of any statement in the assignments of error that the prisoner was not at all times present, raises a very strong presumption that he was so present. But without resorting to presumptions, we think the record shows enough to convince any reason, able mind that the prisoner was personally present in court during all his trial. We are asked to presume that he was not. The contrary doctrine is the true one : That in a court of general jurisdiction all the. details of a trial are presumed to be regular and sufficient to sustain judgment until the contrary be shown: Territory v. Webb, ante, p. 147.
The judgment of the court below is affirmed.