OPINION ON THE MERITS.
Smith, C. J.At the June term, A. D. 1894, of the district court for the county of Santa Fe, Francisco G-onzales y Borrego, Antonio Gronzales y Borrego, Lauriano Alarid, and Patricio Valencia were indicted for shooting and killing one Francisco Chavez, on the twenty-ninth day of May, 1892, in the county of Santa Fe, and territory of New Mexico. On March 18, 1895, a special term of the said district court was duly called by the Honorable N. B. Laughlin, associate justice of the supreme court, and judge of the First judicial district of New Mexico. Judge Laughlin, deeming himself disqualified to preside at the •trial of the said defendants, called in to sit for him Hon. H. B. Hamilton, associate justice of the supreme court, and judge of the Fifth judicial district of the territory of New Mexico, and thereupon Judge ■Hamilton, during the said special term, commenced the trial of the said parties, to wit, on the twenty-third of April, 1895, and continued the same until the twenty-ninth day of May of the same year, when the jury returned a verdict finding the accused guilty as charged in the indictment. A motion was thereupon made for a new trial and an arrest of judgment, which said motions were duly argued, and, after full consideration, were overruled, and the defendants were thereupon sentenced by the court to be executed on the tenth day of, July, 1895. An appeal was thereupon taken by the accused to this court by writ of error from the district court, and the case is now before us for review and determination upon numerous points of error alleged to have been committed during the progress of the trial.
Special term: yondntimecofbe'' vafid‘ity.term * In the first place, it is contended that the special term of the court at which the appellants in error were tried expired by operation of law on the . slxteenth day or April, 1895, and could not legally have been prolonged by the action of the presiding judge. It appears that a regular term for a district court in the county of San Juan was fixed by territorial statute to commence on the third Monday of April, 1895, and it is insisted that a limitation was thus imposed upon the duration of the special term commenced in Santa Fe on March 18, 1895; that the terms of court for one county can. not encroach by extension upon the courts of other counties of the district; that in theory of law a term of court begins on the day designated by statute for its commencement, arid ex vi termini other courts in the district at the same time are prohibited. Such construction might obtain in this territory if statutes did not exclude it. Section 543 of the Compiled Laws directs courts to be held in the different counties at the times fixed by law, and authorizes their continuance until adjourned by order of court. It is manifest that it was intended by this provision to impose a duty and to confer a discretion, and it would seem that, if the exercise of the one should render impracticable the discharge of the other, the discretion should prevail. The interest of the public is the consideration that has induced many courts to the adoption of the doctrine that a term in progress in one county must be arrested by the arrival of the time fixed for a court in another county in the same district, and a judge animated by due regard for public weal, and in his opinion legally possessing absolute power as to the duration of the terms of his courts, might in sound judgment continue one and abandon another. The special term in question commenced March 18, 1895, and it can easily be conceived by this tribunal that the trial judge, in the exercise of his discretion, wisely regarded it more judicious to conclude the case, that had consumed weeks, at the cost of thousands of dollars, than to abandon it for a term in a county of limited population and proportionate litigation. Absence of provision for such an emergent contingency would be a grave casus omissus.
It is further urged that, as the statute (Comp. Laws, sec. 552) provides that special terms shall not conflict with regular terms, the special term at Santa Fe was necessarily terminated by the regular term constructively existing in San Juan on the third Monday of April, 1895. But said section merely declares against a conflict, and does not declare the cessation or illegality of the proceedings of the seemingly conflicting special term, and it can not, in any view, be legitimately maintained that the legislature by such direction intended a mandate, and the vitiation of all proceedings in disregard of it. By section 543, special terms are, as to their length, as absolutely in the control of the presiding judge as are regular terms; and section 552 authorizes special terms, not only in the discretion of the judge in the furtherance of justice, but without any condition or restriction as to duration. It may, therefore, be logically concluded that the authority to continue terms until adjourned by order of court-was deliberately designed in the interest of the public to prolong the regular term, if needed, and to afford special terms without limitation in lieu of regular terms lapsed, and in furtherance of justice. It must also be presumed rationally that the legislature, in attaching by section 552, a condition to the authority to hold special terms, contemplated an actual, and not a constructive, conflict, and did not design that a term being held should be annulled by one that could not be held. Section 2, chapter 61, of the statutes of 1893, required the respective counties to provide for the expenses of their district courts, and practically inhibits terms in counties in which there are no funds. It is experience that a frequent consequence of this system has been the impossibility to hold courts in some of the counties at the time fixed by statute, and, as it is a rule of law that public officers are presumed to perform their official duties, and no court was held in San Juan on the third of April, 1895, it. can be legitimately concluded that there were no funds for a term there, and thatthe judge of the district, with knowledge of this deficiency, appointed a special term in Santa Fe, with the intention and expectation that it would be continued as long as required in the furtherance of justice. It is not conceivable that a court allowed by law and in session could be terminated by a term not only not in esse, but that could not exist; the one was a court in fact, the other a court by construction only, and between them there could not be' a practical conflict. It seems, therefore, that the territorial statute sustained the judge in convening the special term, and in continuing it beyond the times fixed for the regular terms for the counties of San Juan, Rio Arriba, and Taos for the spring of the year 1895.
dictment:'pleading-: sufficiency. Next is the impeachment of the indictment as not' containing the essential averments to confer jurisdiction upon the trial court. It is contended that the allegation that Francisco Chavez instantly died of the mortal wounds inflicted upon mm by the plaintiffs in error does not with sufficient distinctness specify the time and place of his death to charge that he died in the county of Santa Fe within a year and a day from the date of the killing. It is difficult to conceive that an instant consequence of an act does not exclude conception of delay in its occurrence, and does not constrain the conclusion that it was effected on the spot, at the place where it was caused. If a deed produces results the moment it is done, they must ■ happen where it was done. . Fire applied to powder produces instantaneous explosion, and no doubt of the time and place of the event is possible. There being no intervention óf time between the cause and the effect, there can be no question as to the place where the latter ensued from the former.
That the accused were apprised that they were on trial for the murder of Francisco Ohavez on the night of the twenty-ninth of May, 1892, in the county of Santa Fg; that it was proved that Francisco Chavez was killed then and there; that the accused admitted that they were then in the county of. Santa Fe; that they defended themselves against the charge of having murdered Francisco Ohavez on the night of the twenty-ninth of May, 1892, by their alibi, claiming that they were not at the place of the killing on said twenty-ninth of May, 1892; and that their acquittal would have protected them against a second prosecution for the same crime. (See Comp. Laws, section 675),—are facts that can not be controverted, and effectually dispose of the pretension that.the phraseology of the instrument upon which they were arraigned and tried was not sufficiently specific to indicate the venue of the alleged offense. Many authorities have been submitted to sustain the contention that venue and time are not legally laid by the averment of instant death; that it does not exclude the possibility of the death a year and a day out of the jurisdiction, where and after the wounds were given, but, with due respect for the tribunals that have so adjudicated, we can but regard their conclusions as tending to. contract the natural import of language, and strain it from its substantial signification. While courts could abstain from the encouragement of departure from the phraseology of forms almost sacred from protracted adherence to them, they should not pursue such conservatism to the excess of servility. Synonyms should be duly regarded, and words so interpreted that their natural meaning should not be destroyed. Innovations may be unwise, but the antagonism to them that will preclude the use of equivalent expressions would be even more pernicious. In recognition of these principles, less narrowness is obtaining in the construction of pleadings, and, while certainty in their allegations is required, strict conformity to wonted verbiage is not exacted. “Instantly,” say lexicographers, — those who define it etymologically, and those who give its legal meaning, — implies “without any intervention of time,” “allows nota pa-rticle of delay,” “marks an interval too small to be appreciated;” and that Francisco Chavez, in dying “with an interval too small to be appreciated” between the shots he received and his death, died at the place where he was shot, seems an irresistible conclusion. That an event that transpires instantly can be remote from its cause seems a contradiction not entitled to any consideration. That there can be, between an occurrence and its creation, no intervention of time, not a particle of delay, not an appreciable interval, and yet be doubt about the place of its accomplishment, seems an impossible conjecture. An injunction to do instantly is partially obeyed by the act to forthwith proceed to do it, though it may never be done; but, if accomplished without intervention of time, without a particle of delay, the interval between the order and its execution being not appreciable, it is done instantly.
In Hardin v. State, 4 Texas App. 371, the indictment which charged that “Charles Webb, of mortal wounds so given as aforesaid, instantly did die,” was pronounced sufficiently certain of the time and place of his death. The court regarded the words “so given” as suggestive, and we may with equal propriety attach consequence to the description, “said mortal wounds,” contained in the indictment under consideration, as they can refer only to wounds recited as having been inflicted upon Francisco Chavez on the night of the twenty-ninth of May, 1892, and of which he “instantly died.”
In Turpin v. State, 80 Ind. 148, an indictment that contains in the allegation as to death neither the words “instantly” nor “then and there,” is sustained, as the venue and time were once stated. This opinion is based upon statute, but the court declared that the equivalent of “then and there” would, in any contingency, be sufficient.
In State v. Huff, 11 Nev. 21, the court, in considering the objection that the indictment did not contain sufficient certainty as to the place of the crime and the day of its commission, say: “It may be said, with reference to this particular case, — and it will be a sufficient answer to appellant’s objection, if there were none other, — that the indictment does show, by fair and reasonable intendment, that O’Reilly was stabbed and died on the same day. It says the defendant stabbed him on-that day, and killed him on that day. Therefore he must have died on that day. The evidence, we believe, shows that he did not die until the next day, but this was an unimportant variance, and the question is as to the sufficiency of the indictment, not as to the conformity of the proof.” It was further decided in this case that failure to demur to the indictment for the defect that it did not declare that the death occurred within a year and a day from the perpetration of the act which produced it was a waiver by the defendant.
In Comm. v. Bugbee, 4 Gray, 206, in an indictment for an assault, the allegation that the assault was then and there made was sufficient without the repetition of “then and there” before the charge, “did actually strike.” “There might have been, with the words ‘then and there,’ ” said Chief Justice Ewing, in a similar case, “greater deference to tautology,' but not thereby a more explicit or intelligible averment.” Says Metcalf, J.: “Objections like that now before us were never held valid in prosecutions for misdemeanor, but only in favorem vitae in indictments and appeals of death.” 3 Hale, P. O. 178; 2 Hawk. P. C., chap. 23, sec. 28; 7 Dane, Abr. 272. “Even in capital cases,” continues Judge Metcalf, “they have been deemed by the most eminent English judges as among ‘the unseemly niceties’ by which the law is blemished and reproached." 2 Hale, P. C. 193; 2 Gabb, Cr. Law, 198, 199. “And this court,” further declares Judge Metcalf, “in the case of Comm. v. Barker, 12 Cush. 186, 187, decided that an indictment for murder was sufficient which alleged that the defendant, at Worcester, in the county of Worcester, on the second of January, 1853, with a certain axe, feloniously did strike M. B., giving unto the said M. B., then and there, with the axe aforesaid, feloniously, willfully, and with malice aforethought, one mortal wound;” that the words “then and there” needed not to be repeated before the allegation of the mortal wounds, because, notwithstanding the English decision to the contrary, it was deemed most clear that no one upon reading the indictment could fail to understand that the mortal wound was alleged to have been given on the day named in the indictment in Worcester. Says the judge further: “We are of the opinion that a charge expressed in a plain, intelligent, and explicit manner, and in the accustomed legal phraseology, is sufficient to warrant a judgment against the party thus charged, whether that charge be a capital offense or a misdemeanor.” See, also, Comm. v. Doherty, 10 Cush. 52.
In Ball v. U. S., 140 U. S. 136, 11 Sup. Ct. 767, it is declared that “all the essential ingredients of the offense charged must be stated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled to prepare his defense, and avail himself of his acquittal or conviction against further prosecution for the same case.” The indictment in this case was sustained as to time, though it contained no averments upon that point, upon the ground that it was observed from the-indictment that it was returned before the lapse of a year and a day from the time it was alleged in the indictment the party was assaulted; but no place of death was averred, and there were no data to supply the omission, and the indictment was accordingly remanded, with directions that it should be quashed.
. . tWffvNíliW.. sufficiency. Satisfied that the time and place are stated with sufficient particularity and exactness in the indictment under consideration “to advise the appellauts in error of the nature and cause of the accusation against them” (to use the words of section 673, Comp. Laws), and for which they were arraigned and tried, we will consider the degree of the crime specified. The indictment alleges that the accused unlawfully, feloniously, willfully, purposely, and with express malice aforethought did shoot and kill Francisco Chavez, and it is urged that such charge neither expressly nop by implication is an accusation of murder. The killing is admitted, but that the allegation of the crime charged is of greater degree than assault is gravely denied. The indictment charges that Francisco Chavez was killed as above recited, but the accused claim this is not an accusation that he was murdered. That he died instantly is the statement of the indictment, and yet the pretension is that the accused were arraigned, not for the crime of killing him, but for making an assault upon him. We do not appreciate any such representation, as the indictment, in our conception, embodies in its terms all the elments that constitute murder, and is so distinct and comprehensive that it excludes lesser crime than the most flagrant, — that of murder in the first degree. Murder is defined by our statute as the unlawful killing of a human being with malice aforethought, express or implied; and express malice is described as “the deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.” Murder in the first degree is classified by statute, and in the enumeration is included a killing perpetrated from a deliberate and premeditated design unlawfully and maliciously to effect the death of any human being. The offense for which the accused were tried is that they unlawfully, feloniously, willfully, purposely, and with express malice aforethought did kill and murder Francisco Chavez, and yet it is insisted that there is the omission of the elements of deliberation and premeditation in this accusation, essential to constitute a charge of murder in the first degree. We might attribute to willfulness that malicious intent, to purpose that positive design, that would involve a contemplation without mature consideration; but we will not resort to construction when the statute is so emphatic as to render it superfluous. Express malice is defined to be “that deliberate intention unlawfully to take away the life of a fellpw creature, which is manifested by external circumstances capable of proof.” Let us then substitute for the adverbs employed in the indictment their equivalents according to the lexicographers of legal phraseology, and for the words “express malice aforethought” the definition as given by our statute. “Willfully,” in its most moderate signification, is “intentionally;” “purposely” is “designedly;” and “express malice” is, by the statute, “the deliberate intention to take away the life of a fellow creature;” and if for these adverbs there were inserted in the indictment their synonyms and the statutory definition for the phrase “express malice,” the charge would then run that the accused unlawfully, feloniously, intentionally, and designedly shot Francisco Chavez with a deliberate intention to take away his life. If such legitimate paraphrasing does not demonstrate that the charge made in the indictment is that of murder in the first degree, it would be difficult to use phraseology to constitute such an accusation. A deliberate intention unlawfully, feloniously, willfully, purposely to take away life includes all the elements of the crime of murder in the first degree, and by its terms excludes all conception of lesser crime as their signification. There can not be the absence of design to effect death, nor the heat of .passion in the perpetration of the crime, where deliberate intention exists; and we can, therefore, but conclude that the indictment exclusively charges murder in the first degree, and no lower crime. It follows, therefore, that the verdict of the jury that the accused are “guilty as charged in the indictment” is responsive to the indictment, and is a finding that they, in killing Francisco Chavez, committed murder in the first degree.
In People v. Enoch, 13 Wend. 159, it was charged that the defendant feloniously and of malice aforethought killed his wife, the words “with premeditated design” being left out, and a general verdict of guilty was returned, and judgment upon the same for the execution of the accused was sustained.
mukdek: aiibK bTe"d¿«b“iS-a' stmction. We will now address ourselves to the defense presented by the accused. They deny that they were guilty of the killing of Francisco Chavez, and undertook to prove that three were at the house of Seferino Alarid, and the fourth at his home, at the time of the shooting; and the court instructed the jury that it was incumbent upon them to establish this claim by a preponderance of the evidence, but not beyond a reasonable doubt, and added: “If, therefore, after consideration of all the evidence in the case, as well that in relation to the alibi offered by the defendants as that offered by the territory, you have a reasonable doubt as to whether the defendants were at the place where the crime was committed, or were in some other locality, away from the placé of the homicide, you should give the defendants the benefit of that doubt, and find them not guilty.” This instruction is objected to as erroneous, in that it announces that the obligation to establish the alibi is upon the defendants. Many respectable authorities have regarded alibi as an affirmative defense, but we do not feel called upon to pass upon this view in this case, as the instruction given by the .court distinctly announced to the jury that if they entertained any reasonable doubt, after considering all the evidence of the defendants in relation to the alibi, offered by them, whether they were at the place of the homicide, they should give the benefit of that doubt to the defendants, and find them not guilty. This imposes upon the prosecution the obligation to demonstrate beyond a reasonable doubt that the accused were at the place where Francisco Chavez was killed, and gives them the benefit of their testimony to create in the minds of the jury a reasonable doubt as to their presence then and there. The accused are relieved by this instruction from any responsibility to establish by a preponderance of evidence that they were at the house of Seferino Alarid, or elsewhere, at the time of the perpetration of the crime, as the direction to acquit them if any reasonable doubt had been established by their evidence', or all the evidence in the case, as to their whereabouts at the time of the killing, is peremptory. Leonardo v. Territory, 1 N. M. 291.
We will now consider the objection to the court’s action in the admission and rejection of testimony.
MdeEnce?klmVssiblhty' One Juan Gallegos, by his own admission an accomplice in the conspiracy to take the life of Francisco Chavez, represented that he was approached by one Hipólito Vigil with a proposition to assassinate the said Chavez; that the details of the projected crime were discussed between him, the said Vigil, and one of the accused, Francisco Gonzales y Borrego; that they informed him that Antonio Gonzales y Borrego and Partricio Valencía, two of the defendants, were in the agreement; that their object was to remove Francisco Chavez because he-was a prominent man, of great strength with his party, to which they were antagonistic, and which they wished to destroy in the county of Santa Fe. He, seemingly to them, acquiesced in their proposition, but, upon reflection, having no reason to murder said Chavez, he determined to put him upon his guard, and accordingly sent him a short note on January 16, 1891 (which said note it was proved was found among the papers of Francisco Chavez after his death, and was identified by the said Juan Gallegos on the stand) ; that afterward, to avoid importunity from his accomplices, to cooperate with them in th'e assassination of Francisco Chavez, and from fear of them as members of the “Button Society,” under apprehension that they would become cognizant of his betrayal of them, he went to Colorado, where he was residing when he heard of the death of Chavez. The elements of truth in this statement are manifest. One of the counsel of the accused stated the existence of the secret “Button Society” for political purposes, and declared himself a member of it,‘ and that Francisco Chavez was assassinated by the parties who petitioned the witness to unite with them-in the perpet-rátion has been declared by the jury’s verdict and the court’s judgment. It can not be seriously contended that the declarations of the accused were not properly • admitted against them, whether Francisco Chavez was killed in pursuance of the conspiracy revealed by the witness or not. The note was no less a declaration of Juan Gallegos than the oral statements, and the supreme court of Illinois in Lander v. People, 104 Ill. 248, has declared “that acts and declarations so intimately connected with the principal event which they characterize as to be a part of the transaction itself, and which clearly negative any premeditation or purpose to manufacture testimony are admissible.” But there seems no reason to deny a continued conspiracy between this clan, and, in such event, the declarations of one of them in connection with its object or its purpose will be recognized as the declaration of all. “A conspiracy is not destroyed by connection at a subsequent time of new parties therewith, as a new party, agreeing to the plans of the conspirators, and .coming in and assisting them, becomes one of them.” Wright, Cr. Consp. [Carson’s Ed.] 129, citing U. S. v. Nunnemacher, 7 Biss. 111, Fed. Cas. No. 15902; People v. Mather, 4 Wend. 229. The noto was the act of one of the conspirators during the existence of the conspiracy. It was a declaration of the existence of the conspiracy by one of the coconspirators, and was properly submitted to the jury in connection with all the evidence on the subject. Judge Morrow, in U. S. v. Cassidy, 67 Fed. Rep. 703, announces that: “Any declaration made by one of the parties during' the pendency of the illegal enterprise is not only evidence against himself, but is evidence against the other parties. This rule, you will understand, applies to the declaration of a coconspirator, although he may not be under prosecution, his declarations being equally admissible with those of one under indictment and prosecution.” Bish. New Cr. Proc., sec. 1248, cl. 2, says that: “On its being shown that one or more persons were acting in concert with the defendant about the thing in question, all with a common object, declarations during its progress by any one or the other, whether present or absent, may be given in evidence against the defendant.” It was in the sound discretion of the judge of the trial court to admit this note as an accompanying act in connection with the combination shown, and the exercise of his authority is not reversible on appeal. Wiborg v. U. S., 163 U. S. 632, 16 Sup. Ct. 1127. Says the supreme court of the United States: “That much discretion is left to the trial court in the admission of such evidence, and its ruling will be sustained if the testimony which is admitted tends even remotely to establish the ultimate fact.” Clune v. IT. S., 159 U. S. 590, 16 Sup. Ct. 126.
^toeTo/m’is’detency of testimony' We do not deem it necessary to consider seriously the objection to the competency of Ike Nowell and Porfirio Trujillo as witnesses. The former was convicted of a crime expressly designated as a misdemeanor by the United States statutes, and subjected to punishment in the penitentiary. Hard labor was not authorized by the statute, ana, unless such penalty be attached to the commission of a crime under the federal laws, it is not an infamous offense. Again, adultery is not an infamous offense in this territory, as there is no statute so characterizing it, and its degree is here as at common law, under which it was only a misdemeanor. Porfirio Trujillo was restored to the privileges of citizenship by competent authority, according to his own sworn declaration, and the official records of the executive department sustained him. Having lost one of the pai’dons, and not having the other with him, it was altogether legitimate to show by the territorial archives that they had been issued to him.
“cross-examinajudicial ¿Hscrtf-' Another contention is that the court erred in permitting the inquiry of the defendants as to whether they were on the streets of the city of Santa Fe, west of the Cathedral, between noon and 7 o’clock of the twenty-ninth day of May, 1892, as it is claimed that their presence during that interval was not material. The defendants replied that they were not west of the Cathedral in the city of Santa Fe at any time of the afternoon of the twenty-ninth day of May, 1892. It is a well-settled rule that a witness can not be cross-examined as to any facts which are irrelevant or collateral to the issue merely to contradict him, but Starlrie on evidence declares that “this rule does not exclude the contradiction of a witness as to any facts immediately connected with, the inquiry.” The defendants created the connection and the materiality of their whereabouts immediately before 7 o’clock by selecting that as the hour from which to account for themselves during the night, as the probability that they were not strictly accurate must be recognized as absolutely rational. It might have been significantly important to have located these defendants between the hours indicated, as it is easily conceivable that, had it appeared that they were seeking weapons, or cleaning them, it would have, in view of all the circumstances of this case, suggested that they were preparing for a shooting. In Boyle v. State, 105 Ind. 469, 5 N. E. Rep. 207, the court say: “In this instance the accused, when on the witness stand, had given an account of his movements upon a day named, and it was proper to go fully into the subject upon cross-examination, and the state was not confined to the particular period of time designated in the questions asked on direct examination.” In Thomas v. State, 103 Ind. 419, 2 N. E. Rep. 820, the court say: “Where a party voluntarily takes the witness stand, and makes a broad denial of the offense charged, whether that denial be in general or specific terms, much latitude should be allowed in the cross-examination. Here appellant’s denial put in issue all of the testimony adduced in support of the state’s case. If his testimony was true all that in favor of the state was either ignorantly or willfully false.” But, in any contingency, it was in the discretion of the trial court to pass upon the admissibility of such testimony, and we will not review its action. Say the court in Disque v. State, 49 N. J. Law, 249, 8 Atl. Rep. 282: “The extent of the cross-examination of a witness into pertinent facts, not touched by the direct examination, is a matter resting entirely in the discretion of the trial court. Since the passage of the statutes cápacitating parties as witnesses, it has been the general practice, both with respect to civil and criminal procedure, to permit such testifying party to be cross-examined as to the whole case; and such judicial action, being founded in discretion, is not a matter for which error can be assigned.” Say the court in the case of People v. Clark, 8 N. E. Rep. (N. Y. App.) 38: “The extent to which he may be cross-examined on matters irrelevant and collateral to the main issue, with a view to impeaching his credibility, necessarily rests in the sound discretion of the trial court.” See, also, State v. Pfefferle, 12 Pac. Rep. (Kan. Sup.) 406. The jury has found that the defendants were, beyond a reasonable doubt, at the bridge where Francisco Chavez was shot and murdered; and doubt whether they were at any point on San Francisco street during that day, before the killing, may have existed in the minds of the jury without affecting the final conclusion that they were at the place of the homicide.
Mbülty oitesd-issi‘ S>diciaI The sixth assignment of error by the court, it is alleged, was the admission of testimony tending to show that the defendants were at the saloon of J. V. Conway, in Santa Fe, on the evening of the killing of Francisco Chavez, and the exclusion of evidence by the defendants to the effect that the witnesses who swore they saw the defendants in said saloon were not there themselves during the said evening. It was admitted in the argument that the evidence objected to was admissible if it tended to show that the defendants were at the said saloon at 7 o’clock, or later, that night, before the killing of Francisco Chavez; and it-appears from the record that the hour when they claimed they saw said defendants was not specified, but was stated to have been at sundown, which at that season of the year occurred after 7 o’clock. Such evidence, as rebuttal of the defense of the accused, it would have been error to have excluded from the jury, and, as the accused had already had the opportunity to testify in chief that they were at 7 o’clock in the house of Seferino Alarid, it would have been needlessly cumulative to have permitted them to repeat themselves. These defendants had located themselves from 7 o’clock until after the killing of Chavez. Other witnesses gave statements conflicting with theirs, and, if still others were allowed to contradict the last, an interminable counter cumulation would have resulted; and we do not believe it either the duty or the policy of courts to permit such prolixity in their ■■proceedings. ' But, in any event, the trial judge must be allowed a sound discretion in such matters, and as we do not perceive any abuse of its exercise in this instance, we do not deem it incumbent upon us, or legitimate for us, to reverse his action. Our concluding remarks in the paragraph immediately before that next preceding we here repeat.
MeMm1niü¿nSof pesLchrnenl* jüdicial discretion. The eighteenth assignment is that the court erred in permitting the territory, on cross-examination of the defendants Francisco Gonzales y Borrego and Antonio Gonzales y Borrego, to interrogate said witnesses as to how they had killed Juan Pablo Dominguez a few days after the death of Francisco Chavez, and 'as to the killing of Silvestre Gallegos by Francisco, and his indictment therefor. It can not be pretended that the evidence of the defendants contributed to the conclusion reached by the jury that the said defendants were at the killing of Francisco Chavez, as the jury, having been instructed to give them the benefit of any reasonable doubt as to their participation in the homicide, and acquit them, must have ascertained their verdict upon testimony in contravention of that of the accused. It is immaterial whether Francisco Gonzales y Borrego and Antonio Gonzales y Borrego killed one Juan Pablo Dominguez after the death of Francisco Chavez, or at all, or whether Silvestre Gallegos was killed by Francisco Gonzales y Borrego. They might have been shown guilty of such crimes, and yet not have imperiled their defense of alibi, if they had been able to excite by the many witnesses other than themselves, whom they introduced to support them, a reasonable doubt as to their presence at the killing of Francisco Chavez; and, if it was error to admit such inquiries, it was not such a mistake of discretion as to require review, for “the asking of incriminating or disgracing questions is a matter largely in the discretion of the court, and, where no material injury is thereby done to either party, the refusal of the court to order such questions stricken out will not be reversible error.” Section 2087 of the Compiled Laws authorizes the impeachment* of the credit of a witness by evidence of his bad moral character, -and the present tendency is to regard all facts as relevant which will enable the jurors to decide to what extent the testimony of the witness can be relied on. Accordingly a witness may be asked with a view to show his character for truthfulness as to specific facts, not too remote in time, which may tend to disgrace him, and counsel will be bound by his answers. Underh. Ev., p. 517. Say the court in Territory v. O’Hare, 44 N. W. Rep. (N. D.) 1008: “We hold that the right of cross-examination as to outside matters of fact, which affect the general character of the witness, and tend to degrade him and affect his credibility, is, within the limits of sound judicial discretion, a salutary rule.” In Roberts v. Comm., 20 S. W. Rep. (Ky. 1892)267, it was announced proper, in a prosecution for murder, in order to discredit a witness for the state, to ask him if he had not been indicted for robbery and confessed the crime, as it was designed to affect his credibility. For the same reason it was declared in State v. Miller, 13 S. W. Rep. (Mo. Sup.) 832, that it was not error to ask a witness whether he had been in the penitentiary two or three years. In People v. Casey, 72 N. Y. 393, the prisoner was a witness in his own behalf, upon the charges of assault, and the counsel for the people, upon cross-examination, put questions to him as to other altercations in 'which he had been engaged, and other assaults committed by him, and it was held that there was no error in such ruling. In Carroll v. State, 24 S. W. Rep. (Tex. Cr. App.) 100, it was decided that, for the purpose of impeaching a witness, he may be asked if he is not under indictment for theft. We might multiply citations to the same effect, but will conclude with the announcement that in the case before cited (People v. Casey, 72 N. Y. 393) it was declared that the extent to which such an examination may go to test the witness’ credibility is largely in the discretion of the trial court, and, as we do not perceive that the jud^e of the court below committed any impropriety in his electipn in this instance, we will forbear further consideration of the subject.
It will be sufficient to say in reference to the alleged errors of permitting Ike Nowell to detail an alleged conversation with Thomas B. Catron, one of counsel for the defendants, in reference to the testimony of said Nowell in this case, and in allowing Luiz G-onzales to do the same as to an interview between him and Charles A. Spiess, another attorney for the accused, that we recognize that counsel occupy such relations to their clients as to justify a disclosure of their action in the interest of such clients and for their benefit at their trial.
Many other errors are alleged which we do not deem it necessary to consider, and it may be rémarked that in the multitude of assignments there appears almost a lack of confidence in the substantial merits of the appeal, which impression is not diminished by the technical character of the complaints mainly relied on in the oral argument. Says the supreme court of the United States, in Grayson v. Lynch, 168 U. S. 468, 16 Sup. Ct. 1071: “It is to be regretted that defendants found it necessary to multiply their assignments to such an extent, as there is always a possibility, in the very abundance of alleged errors, that a substantial one may be lost sight of.” This is a comment which courts have frequent occasion to make, and one which is too frequently disregarded by the profession. Having reached the conclusion that none of the errors alleged by the accused to have been committed by the trial court were material, and being impressed that the instructions given are a fair, clear, and comprehensive enunciation of the principles by which the jury should have been guided in their consideration of the evidence, we do not discover any ground for reversal of the action of the lower court.
The evidence in the record is abundant to establish that the accused, in pursuance of a diabolical conspiracy of long standing, unlawfully, feloniously, willfully, and purposely shot Francisco Chavez with a deliberate intention to take his life; and the judges of the facts wisely found that there should not be, by their default, any escape for the perpetrators from the penalty for the unprovoked and cold-blooded assassination.
This case may, as to this territory, be pronounced a cause celebre from the prominence of the deceased, from the notoriety of the criminals,- from the complication and mystery of the circumstances, from the delay in procuring a jury, from the time (nearly six weeks) and the money (amounting to thousands of dollars) consumed in the trial, from the extent and the intensity of the public interest, and from the exceptional skill and zeal displayed by counsel in its management; and it would be extraordinary if such litigagation, under such circumstances, did not develop difficulties formidable even to a court of large experience. We are much pleased to say that the presiding judge, though but recently elevated to the bench at the date of this trial, with admirable discrimination and commendable firmness held the scales of justice. In conclusion, we hereby affirm the judgment of the lower court in this ease.
Bantz, J., cpncurs.