At the October term, 1898, of the district court of Berrialillo county, plaintiff in error was indicted for the murder of Patricio O’Bannon. Being without means to employ counsel, Mr. Edward Medler was appointed to defend, and upon trial in the district court of Bernalillo county the defendant was convicted of murder in the first degree, and sentenced to be hanged, as the law requires in such cases.
The defendant in the court below sued out a writ of error, and brought the case to this court for review.
A reversal of the judgment of the court below is sought upon the following grounds, which have been assigned as errors by the appellant:
The first assignment of error is: “The indictment is fatally defective because it does not charge in words that the killing was unlawful.” It appears that the word “unlawful” is omitted from the indictment in this case, but it further appears that other words are used in the indictment, which undoubtedly convey the same meaning as the omitted word, and which, in the judgment of this court, made the use of the word unlawful unnecessary.
The indictment in this case is identical, practically, with the indictment in the case of Davis, v. Utah Territory, 151 U. S. p. 153, in which case the word “unlawfully” was omitted from the indictment.
At the time the indictment was returned in the case of Davis v. Utah Territory, the statute of Utah defining the crime of murder, and the different degrees thereof, was also identical with the statutes of this Territory defining that crime and the different degrees thereof. In that case the defendant demurred to the indictment on the ground that it did not constitute an offense, and the point made by counsel was that the word unlawful, not being used in the indictment, it was therefore fatally defective, as the statute defined murder to be “the unlawful killing of a human being, with malice aforethought,” and was followed by the definition of murder in the first degree, which definition is identical with our statute.
The demurrer being overruled, trial was had, and the defendant -was convicted. An appeal was taken to the Supreme Court of the United States, and, in passing upon this question, that court said:
“The first assignment of error relates to the overruling of the demurrer to the indictment. The point here made is that as murder is defined by the statute to be the unlawful killing of a human being with malice aforethought it was necessary to charge, in words, that the killing was unlawful. This position cannot be sustained, for the facts alleged present, in clear and distinct language, a case of unlawful killing. It is not necessary, as we have seen, to use the words of the statute defining the offense. It is sufficient if those used convey the same meaning. The indictment sets forth the case of an assault and battery, committed by the defendant wilfully, feloniously, and with deliberately premeditated malice aforethought, and resulting in instant death, whereby the defendant did kill and murder, contrary to the statute, etc. Such facts plainly import an unlawful killing.”
Mubdeb: sufficiency of indictment. The doctrine announced above is not in conflict with the doctrine announced in the cases of the Territory v. Miera, 1 N. M. 387, and the Territory v. Armijo, 7 N. M. 571. In the statutes under which the indictments in both of those cases were drawn,, the word “unlawfully,” alone was used, without any other similar words, or those which imported practically the same meaning, and it was thereby sought to distinguish between an innocent act and an illegal assault. In the case of Miera,, the statute provided that “if any person shall unlawfully assault or threaten another, in a menacing manner, or shall unlawfully strike or wound another, the person so offending,” etc.
In the case of the Territory v. Armijo, the indictment was drawn under the deadly weapon act, section 3 of which provides, “that any person who shall unlawfully assault or strike at another with a deadly weapon,” etc. It will be observed that the word unlawfully, in both of these statutes, is the gist of the offense, and without its use in the indictment no offense whatever is charged; but there is no' similarity between those statutes, and the statute defining murder, wherein a number of words are used, all of which enter into the offense, and import very much the same thing; and it-is not necessary to use all of these words in an indictment for murder, but only such as are necessary to show that the offense was committed unlawfully, and this will supply the absence of the word unlawfully in such an indictment.
The case of Davis v. Utah Territory is conclusive, upon the first assignment of error in this case, and the same must be overruled as to the alleged defect in the indictment.
The next assignment of error that this court deems necessary to consider is the third, which is as follows: “The verdict'is not supported by the evidence.”
While this assignment of error is too general, and in an ordinary case would not be sufficient, this is a capital case,, and therefore the court will consider this assignment, in asmuch as the argument of the learned counsel, at the bearing in this court, indicates what he deems to be the error intended to be raised by this assignment. The counsel contends, and, in fact, that was the sole defense urged in behalf of the defendant in the lower court, that the defendant was intoxicated to such a degree that he was totally incapable of forming a deliberate and premeditated intention to kill, which is necessary to a conviction of murder in the first degree; and that, therefore, his conviction of murder in the first degree can not be sustained in view of the fact of the intoxication of the defendant.
Mtodeb: intoxication as a de-iense. Voluntary intoxication is not a defense in law that will excuse the commission of the crime of murder in the first degree, or any other degree, unless such intoxication is so gross as to , , , . . , . , render the defendant incapable of knowing the difference between right and wrong, or incapable of forming a wilful and deliberate intention to kill.
The evidence in this case as to the intoxication of the defendant, and the extent and effect of it, was for the consideration of the jury, and in passing upon the guilt or the innocence of the defendant it was for them to determine whether or not the defendant was capable or incapable of forming a willful and deliberate intention to kill the deceased, at the time he did so, by reason of the intoxication which the evidence disclosed.
This evidence was fairly and properly submitted to the jury, and considered by them under fair and proper instructions by the court, and after a full consideration of the evidence both for and against the defendant, and of the intoxication shown, the jury found the defendant guilty of murder in the first degree.
The evidence further shows that the defendant, and another person with whom he had been associating and drinking on the afternoon of the day of the killing, rode off in the direction of the place where the child Patricio O’Ban-non and two other children were playing, near a well on the premises of the father of the deceased; that while the three children were playing together, making no remarks, or in any way provoking the defendant to do any act of violence toward them, in fact without anything whatever to attract the attention of the defendant to them, he drew his pistol and fired two shots at the children, killing the deceased, and seriously wounding another of the three children.
It will, therefore, be seen that the defendant fired but two shots, and that both of them took effect, one of them killing Patricio O’Bannon and the other seriously wounding one of the other children. Now this tends to show that the defendant, while he may have been intoxicated, was not intoxicated to such an extent that he did not know what he was doing, because he was capable of taking deliberate aim at these children, and accomplishing the death of one of them.
It is further shown by the evidence that he immediately fled. Not only that, but, when found by the officer, he had changed horses, which also tended to show that he knew what he had done, and was endeavoring to escape the consequences thereof.
All this evidence was for the consideration of the jury in passing upon the degree of the intoxication of this man, and whether it rendered him incapable of forming a premeditated intention to kill, necessary to a conviction. The jury passed upon this evidence adversely to the defendant, and the court sees no reason for interfering with the determination of the jury upon that point.
These circumstances were very damaging to the defense made in this case, for, at the time of the killing, if this man, in firing two shots, was able to make both of them effective, the jury had a right to weigh this evidence, and to determine what it established, and it is not for this court, and we have no disposition, to interfere with the findings of the jury, and we believe the jury were warranted in so finding. This evidence strongly tended to show that the defendant was capable of forming the necessary intent to kill, and knew what he was doing, when he deliberately fired the shots directly at these children, and the evidence certainly tended to show that this killing was “perpetrated by an act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life,” which is one of the definitions of murder in the first degree.
In the formation of the intent to kill, it is not necessary that there shall be any great length of time involved, between the formation of such intent to kill, and the killing, in order to constitute the premeditation required by the statute. All that is necessary, is, that the intent to kill shall be completely formed in the mind of the defendant, and deliberated upon, that is, fully determined, prior to the firing, the fatal shot; even if this intent, completely formed,, is entertained but a moment, it will be sufficient.
Therefore the third assignment of error is overruled.
The fourth assignment of error is that “The court erred in allowing to go to the jury as an admission of defendant, over his objection the statement of what Ambrosio Gringas, who was not produced in court, would testify to, if present.”
It is true that the defendant has a right to be confronted by his accusers, and to face the witnesses who testify against him. This is a constitutional provision that defendant has a right to invoke in his defense. But in this case, we are of the opinion that this constitutional provision has not been violated, and that the error assigned here does not bring the case within that provision of the constitution so as to render what occured in the court below, as shown by the record, a reversible error. The record shows that after the prosecution had rested, and the defense had closed their case, so far as the testimony was concerned, the district attorney announced to the court that there was a witness, whose name was endorsed upon the back of the indictment, who had not been called in chief, and whom he desired to produce as a witness in rebuttal, but that the witness was not present, and did not respond when his name was called. There is nothing to show that the district attorney persisted in delaying the case until this witness could be produced in court, but at this juncture the record shows that the following took place:
“Ambrosio Gringas, a witness called in rebuttal by the [Territory, not responding to his name, it is admitted by the defendant that the witness, if present, would testify to the following:
“ 'That this defendant and this man Garcia were there in the saloon of Chavez & Co., for several hours, drinking whisky, beer, brandy, soda, and other drinks on the day of the killing, and that he saw them going off toward the bridge.’ ”
“Mr. Medler: This admission is made subject to the objection that witness not being here and his name appearing on the back of the indictment that the defendant is entitled to his presence in court.”
“It is admitted that said witness, if present, would testify to said facts.
“This statement is interpreted to the jury.”
From this record it is evident that the defendant was more anxious to have this evidence introduced than the prosecution. The statement here admitted, which it is admitted that the witness, if present, would testify to, is wholly evidence in the interest of the defendant. It is identically similar evidence to that given by the witnesses for the defendant in his own defense, and certainly tended to corroborate the defendant upon the point that he was intoxicated to such a degree that he was incapable of committing the offense charged against him. This evidence, which was admitted, was wholly in favor of the defense, and tended to injure rather than benefit the prosecution.
°continuance!^: iaw?tltuti°nal The constitutional right of the defendant is to face the witnesses called to testify against him, and such is not the case here. The witness in this case was testifying, so far as this admission is con-cerned, for the defendant, and certainly the error, if any error was committed at all, would be harmless and not reversible. It is very plain from this record of what occurred at that time, that the defendant, through this admission, succeeded in obtaining evidence for himself, and excluding any evidence that the witness might give, that would be against him. He succeeded, in other words, in getting another witness for himself, and at the same time, by the objection, prevented the prosecution from obtaining the evidence of that witness favorable to the prosecution.
It is true that Mr. Medler, the attorney for the defendant, stated that he made the admission subject to the objection that the witness not being present, and his name appearing on the back of the indictment, that the defendant is entitled to his presence in court; but the effect of this objection was simply to prevent the prosecution from attempting to get any more testimony of this witness into the record than the portion that the defendant desired to be introduced, and which he secured by this admission. The language of this objection made by Mr. Medler would indicate that he was anxious to have the testimony of this witness, because one of the reasons for the objection is that the defendant is entitled to the presence of this witness in court, his name appearing on the back of the indictment.
We see nothing (in allowing this admission to be interpreted to the jury) that was prejudicial or harmful to the-defendant. There is nothing in it tending to show that the witness was testifying against the defendant, but wholly in his favor. The defendant was not deprived of his rights by this admission of testimony in his favor, and he could not in any event be prejudiced or injured by this testimony, as it tended very strongly to aid his defense and assist in his acquittal.
The error is not well assigned, and will also be overruled.
There is no reversible error disclosed by this record, and the judgment of the lower court, therefore, is affirmed, and the judgment and sentence of the court shall be executed on Friday, June ist, 1900. *
Mills, C. J., and Parker, J., concur.