Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1896-09-02
LEARNED, LUMINOUS, STRONG
Concluded From First Page

animation of witness into pertinent
facts, not touched by the direct examina-
ton, is matter resting entirely in the
discretion of the trial court. Since the
passage of the statutes capacitating
parties as witnesses, it has been the gen
eral 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 &C.
ton, being founded in discretion, is not
matter for which error can be assigned"
Say the court in the case of the People
VS.. Clark, On. W SN. E. Rep. 80: "The
extent to which he may be cross-examined
on matters irrevelent and collateral to
the main issue with view to impeaching
his credibility necessarily rests in the
sound discretion of the trial court"
See also State vs. Plefferle, IL Pac. Rep.
4O6.
The jury has found that the defendants
we're, beyond reasonable doubt, at the
bridge where Francisco Chavez was shot
and murdered, and doubt whether they
we're 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 conclu-
sion, that they were at the place of the
homicide.
The sixth assignment of error by the
court, it is alleged, was the admission of
testimony tending to show that the de-
PENDANTS were at the saloon of j. V. Con-
way, in Santa Fe, on the evening of the
killing of Francisco Chavez, and the ex-
clusion of evidence by the defendants to
hat pbo
they saw the defendants in said saloon,
we're not there themselves during the
said evening. 1t was admitted in the ar
gument that the evidence objected to was
admissible if it tended to show the de-
PENDANTS were at the said saloon at 7
o'clock, or later, that night, before the
killing of Francisco Chavez, and it APP
pears from the record that the hour, when
they claimed they saw said defendants,
was not specified, but was stated to have
been at shutdown, which at that season of
the year occurred after 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 ac-
cused had already had the opportunity to
testify in chief that they were at O'Clock
in the house of Seferino Alarld, it would
have been needlessly cumulative to have
permitted them to repeat themselves.
These defendants had located them
selves from 7 O'Clock until after the kill
ing of Chavez. Other witnesses gave
statements conflicting with theirs, and.
il still others were allowed to contradict
the last, an Interminable counter cumula-
ton 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 sound discre-
tion 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.
Other Grimes Of Defendants Imma-
terial.
The eighteenth assignment is, that the
court erred in permitting the territory on
cross-examination of the defendants, Fran
cisco Gonzales y Borrego and Antonio
Gonzales Y Borrego, to interrogate said
witness 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 Fran
cisco, and his indictment therefor. It
can not be pretended that the evidence of
the defendants contributed to the conclu.
sion reached by the jury-that the said
defendants were at the killing of Fran
cisco Chavez, as.the jury, having been
instructed to give them the benefit of
any reasonable doubt as to their partici-
patton in the homicide and acquit them,
must have ascertained their verdict upon
testimony in contravention of that of the
accused. It is immaterial whether Fran
cisco Gonzales Borrego and Antonio
Gonzales Borrego killed one Juan Pab-
10 Dominguez after the death of Fran
cisco Chavez, or at all, or whether Silves-
tire Gallegos was killed by Francisco
Gonzales Borrogo. 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
il was error to admit such inquiries, it
was not such mistake of discretion as
to require review, for "the asking of in
eliminating or disgracing questions is
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 question
stricken out, will not be reversible error"
10 Mass, 545.
Section 2087 of the Compiled Laws
authorizes the impeachment of the credit
of witness by evidence of his bad NOR
al 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 witness may be asked
with view to show his character for
truthfulness as to specific facts, not too
remote in time, which may tend to dis
grace him, and counsel will be bound by
his answers.
Underhil on Ev. p. SIT.
Say the court in Territory vs. O'Hare,
A N. W. Rep, 256: eve hold that the
right of cross. examination az to outside
matters of fact, which affect the general
character of the witness, and tend to de-
grade him and affect his credibility, is
within the limits of sound judicial discre-
ton. salutary rule"
In Roberts vs.. Com monwealth Ky.
1892 20 s. W. Rep. 267, it was ANNOUNCE
ed proper in prosecution for murder in
order to discredit 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 Va. Miller, l 3S. W. Rep, 1882, that
it was not error to ask witness whether
he had been in the penitentiary two or
three years.
In ~ N. Y, People We. Casey, 300,
the prisoner was a witness in his own be-