Fall, J.
This cause comes here by appeal from Dona Ana county. The facts, as disclosed by the record, are as follows: The district court for that county was held in Las Cruces, commencing on the sixth day of March, 1893. On the ninth day of March, Samuel Steel, a young man of seventeen years, a relative of the presiding judge, John R. MoFie, was found unconscious at a point on a road or street a short distance from the town, with a bullet wound entering the eye, penetrating the head, and doming out toward the back part thereof, at a point above the place of entry. The defendant, John A. Roper, was arrested on the next morning, the tenth, promptly indicted for the murder, arraigned, and placed upon trial upon the fifteenth instant. The evidence was entirely circumstantial. Fifteen witnesses were examined for the territory. Samuel Steel, father of deceased, testified as to being called by Rodriguez, and finding his son’s body, at 7 or half past 7 p. m., on the evening of the ninth, and that deceased died within about two hours. Dr. B. E. Lane examined deceased, and found a wound in the eye, ranging down, and then up, and out at back of head; but only made an examination with fingers. Wound small. Llewellyn Grans, druggist, corroborated Dr. Lane’s testimony, and thought wound made by pistol of about thirty-eight caliber. Dr. Petin testified that deceased delivered milk to him at his home, heyond where deceased was found, about sundown, on evening of ninth. Saw no one else pass. Pedro Gronzales testified that he knew defendant, saw him in Las Cruces on afternoon of ninth in Lapoint’s saloon, gambling, and that defendant had a pistol, identified as a thirty-eight caliber. Jacobo Chavez identified pistol secured by officers in arresting defend-' ant as the same which defendant had in Lapoint’s saloon. Albert Ellis, that defendant was riding a dark horse, and left town about 6 o’clock or thereabouts; also identified pistol. Adolph Saens, had known defendant. Saw him in Las Cruces, and went with him from Lapoint’s saloon to Ellis’ corral. On the street met a negro, and defendant asked negro for money, and made him turn his pockets out. Witness told defendant that negro had no money, to “let him alone,” and defendant did so.
Witness also identified pistol thirty-eight caliber. Jesus Maria Rivera was coming from Dr. Petin’s house about 6 or half past 6 in the evening. Met deceased going to Dr. Petin’s, going toward town, at a distance (as shown by witness Baker) of four hundred and ten paces from where deceased was found dying. Met a man on a dark horse, who, presenting a pistol, demanded money of witness, who offered a pocket knife, — all he had. Assailant rode off with a yell. Identified defendant as party who held him up. Had never seen defendant before the attempted robbery. It was after sundown, but not dark. After leaving defendant, witness walked (as shown by witness Baker)' two hundred and ten steps, and heard a shot. “Came on to town.” Defendant rode off from witness in a walk. ..Philipine Durier saw deceased pass his house toward that of Dr. Petin, about half past 6. Afterward heard a shot. Heard nor saw anyone else except witness Baker. Ramona Rodriguez de Valencia heard a shot about half past 6 or 7, and heard a wagon running. Deceased was brought into her house. Domingo Rodriguez, husband of last witness, returned from Mesilla, and his wife told him she had heard a shot, and a" wagon running. He heard someone groaning in the street, near his house, went out, recognized deceased, and went for Samuel Steel, Sr., and the' deceased was carried into his (witness’) house, (where he died). W. E. Baker had been on road past Dr. Petin’s house. Coming back, at some distance beyond Petin’s, saw a man on dark horse, about one hundred and fifty to one hundred and seventy-five feet distant from the road, riding out of the road. Saw deceased’s body on side of the road, opposite witness Rodriguez’s house, but thought it was a drunken man. Afterward (during trial) measured distances as shown in note of Rivera’s testimony, and also trailed horse track of rider he had seen from a point on the road, in a half circle, back to the road. Thomas A. J. Fountain helped to arrest defendant at the camp five miles from Las Cruces, west of Mesilla, and across the river. Arrest made early on morning of tenth. Defendant feeding his horses. Defendant denied having pistol, and witness found the thirty-eight caliber pistol in the “mess chest,” etc. Robert P. Boone, foreman of the men who were “rounding up” cattle on west of river near Mesilla, and for whom defendant was working, testified that defendant left camp about noon for Las Cruces, riding a bay horse, and returned between 8 and 9 o’clock in the evening. Nothing unusual or excited in his manner. Talked with the boys for a few minutes, and went to bed. I. J. Hall, C. M. Foraker, Al. Hardin, and Perry Williams, for defense, had known defendant in Grant county, each fora term of two to nine years. Was of good character. Perry Williams knew that defendant could not speak Spanish language, and defense offered to prove by witness that witness Rivera told him that the man who ‘ ‘held him up” carried on the full conversation in the Spanish language. Phoebus Campus, deputy sheriff, contradicts witness Fountain in unimportant details, and says that Anselmo Melendez, another deputy, found the thirty-eight caliber pistol in a pigeon hole in the top of mess chest, and not hidden. Defendant testifies that he was in Las Cruces, gambling. Was with witness Saens. Spoke to negro Frank, whom he knew, and asked for money, but it was a joke; and nothing thought of it. Left Las Cruces about 6 o’clock. Went toward railroad, and to Mesilla. Saw one or two persons on or near road. Did not see nor “hold up” witness Bivera. Did not see deceased. Did not know him. Was a stranger in Las Cruces. Did not speak Spanish language. Did not fire off pistol at all on the ninth. Arrived in camp about 8 or 9 o’clock. Went to bed after “talking with the boys,” and was arrested while feeding the horses on morning of tenth. Witness Williams Avas not allowed to testify as to what Bivera told him.
No objections or exceptions are shown to testimony for prosecution, but this is waived here by solicitor genera] for the territory. After prosecution had closed, defendant arose in open court, and asked that additional counsel be assigned him. This was promptly done; B. L. Young being assigned to assist William Breeden, defendant’s counsel. The jury returned a verdict of guilty, and a motion for a new trial was at once made, assigning usual grounds, and also separation of jury during trial, prejudice and ill feeling of citizens, rendering fair trial impossible; that defendant did not have a fair trial, and was prevented from asking change of venue because of fear of violence at hands of citizens; newly discovered evidence; refusal to admit testimony to rebut witness Bivera’s evidence; error in allowing defendant to be brought into court mana'cled, and to be sunounded at all times by a large body of armed men during trial, etc. Motion was overruled, and defendant sentenced to hang. Exception to overruling motion for new trial was taken, and case appealed.
murder : fair and separation1*^" jury, new tnai. Errors assigned and relied on here are practically embraced in that setting up the refusal of the court to grant a new trial. In support of this motion the defense and prdsecution offered counter affidavits as to separation of jury, and we ^ink y. was affirmatively shown that defendant was not prejudiced by such separation, which appears to have been necessary. Defendant also offered to prove by Daniel M.
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Fall, J.
This cause comes here by appeal from Dona Ana county. The facts, as disclosed by the record, are as follows: The district court for that county was held in Las Cruces, commencing on the sixth day of March, 1893. On the ninth day of March, Samuel Steel, a young man of seventeen years, a relative of the presiding judge, John R. MoFie, was found unconscious at a point on a road or street a short distance from the town, with a bullet wound entering the eye, penetrating the head, and doming out toward the back part thereof, at a point above the place of entry. The defendant, John A. Roper, was arrested on the next morning, the tenth, promptly indicted for the murder, arraigned, and placed upon trial upon the fifteenth instant. The evidence was entirely circumstantial. Fifteen witnesses were examined for the territory. Samuel Steel, father of deceased, testified as to being called by Rodriguez, and finding his son’s body, at 7 or half past 7 p. m., on the evening of the ninth, and that deceased died within about two hours. Dr. B. E. Lane examined deceased, and found a wound in the eye, ranging down, and then up, and out at back of head; but only made an examination with fingers. Wound small. Llewellyn Grans, druggist, corroborated Dr. Lane’s testimony, and thought wound made by pistol of about thirty-eight caliber. Dr. Petin testified that deceased delivered milk to him at his home, heyond where deceased was found, about sundown, on evening of ninth. Saw no one else pass. Pedro Gronzales testified that he knew defendant, saw him in Las Cruces on afternoon of ninth in Lapoint’s saloon, gambling, and that defendant had a pistol, identified as a thirty-eight caliber. Jacobo Chavez identified pistol secured by officers in arresting defend-' ant as the same which defendant had in Lapoint’s saloon. Albert Ellis, that defendant was riding a dark horse, and left town about 6 o’clock or thereabouts; also identified pistol. Adolph Saens, had known defendant. Saw him in Las Cruces, and went with him from Lapoint’s saloon to Ellis’ corral. On the street met a negro, and defendant asked negro for money, and made him turn his pockets out. Witness told defendant that negro had no money, to “let him alone,” and defendant did so.
Witness also identified pistol thirty-eight caliber. Jesus Maria Rivera was coming from Dr. Petin’s house about 6 or half past 6 in the evening. Met deceased going to Dr. Petin’s, going toward town, at a distance (as shown by witness Baker) of four hundred and ten paces from where deceased was found dying. Met a man on a dark horse, who, presenting a pistol, demanded money of witness, who offered a pocket knife, — all he had. Assailant rode off with a yell. Identified defendant as party who held him up. Had never seen defendant before the attempted robbery. It was after sundown, but not dark. After leaving defendant, witness walked (as shown by witness Baker)' two hundred and ten steps, and heard a shot. “Came on to town.” Defendant rode off from witness in a walk. ..Philipine Durier saw deceased pass his house toward that of Dr. Petin, about half past 6. Afterward heard a shot. Heard nor saw anyone else except witness Baker. Ramona Rodriguez de Valencia heard a shot about half past 6 or 7, and heard a wagon running. Deceased was brought into her house. Domingo Rodriguez, husband of last witness, returned from Mesilla, and his wife told him she had heard a shot, and a" wagon running. He heard someone groaning in the street, near his house, went out, recognized deceased, and went for Samuel Steel, Sr., and the' deceased was carried into his (witness’) house, (where he died). W. E. Baker had been on road past Dr. Petin’s house. Coming back, at some distance beyond Petin’s, saw a man on dark horse, about one hundred and fifty to one hundred and seventy-five feet distant from the road, riding out of the road. Saw deceased’s body on side of the road, opposite witness Rodriguez’s house, but thought it was a drunken man. Afterward (during trial) measured distances as shown in note of Rivera’s testimony, and also trailed horse track of rider he had seen from a point on the road, in a half circle, back to the road. Thomas A. J. Fountain helped to arrest defendant at the camp five miles from Las Cruces, west of Mesilla, and across the river. Arrest made early on morning of tenth. Defendant feeding his horses. Defendant denied having pistol, and witness found the thirty-eight caliber pistol in the “mess chest,” etc. Robert P. Boone, foreman of the men who were “rounding up” cattle on west of river near Mesilla, and for whom defendant was working, testified that defendant left camp about noon for Las Cruces, riding a bay horse, and returned between 8 and 9 o’clock in the evening. Nothing unusual or excited in his manner. Talked with the boys for a few minutes, and went to bed. I. J. Hall, C. M. Foraker, Al. Hardin, and Perry Williams, for defense, had known defendant in Grant county, each fora term of two to nine years. Was of good character. Perry Williams knew that defendant could not speak Spanish language, and defense offered to prove by witness that witness Rivera told him that the man who ‘ ‘held him up” carried on the full conversation in the Spanish language. Phoebus Campus, deputy sheriff, contradicts witness Fountain in unimportant details, and says that Anselmo Melendez, another deputy, found the thirty-eight caliber pistol in a pigeon hole in the top of mess chest, and not hidden. Defendant testifies that he was in Las Cruces, gambling. Was with witness Saens. Spoke to negro Frank, whom he knew, and asked for money, but it was a joke; and nothing thought of it. Left Las Cruces about 6 o’clock. Went toward railroad, and to Mesilla. Saw one or two persons on or near road. Did not see nor “hold up” witness Bivera. Did not see deceased. Did not know him. Was a stranger in Las Cruces. Did not speak Spanish language. Did not fire off pistol at all on the ninth. Arrived in camp about 8 or 9 o’clock. Went to bed after “talking with the boys,” and was arrested while feeding the horses on morning of tenth. Witness Williams Avas not allowed to testify as to what Bivera told him.
No objections or exceptions are shown to testimony for prosecution, but this is waived here by solicitor genera] for the territory. After prosecution had closed, defendant arose in open court, and asked that additional counsel be assigned him. This was promptly done; B. L. Young being assigned to assist William Breeden, defendant’s counsel. The jury returned a verdict of guilty, and a motion for a new trial was at once made, assigning usual grounds, and also separation of jury during trial, prejudice and ill feeling of citizens, rendering fair trial impossible; that defendant did not have a fair trial, and was prevented from asking change of venue because of fear of violence at hands of citizens; newly discovered evidence; refusal to admit testimony to rebut witness Bivera’s evidence; error in allowing defendant to be brought into court mana'cled, and to be sunounded at all times by a large body of armed men during trial, etc. Motion was overruled, and defendant sentenced to hang. Exception to overruling motion for new trial was taken, and case appealed.
murder : fair and separation1*^" jury, new tnai. Errors assigned and relied on here are practically embraced in that setting up the refusal of the court to grant a new trial. In support of this motion the defense and prdsecution offered counter affidavits as to separation of jury, and we ^ink y. was affirmatively shown that defendant was not prejudiced by such separation, which appears to have been necessary. Defendant also offered to prove by Daniel M. Reade, upon new trial, that he, Reade, on evening of killing, at about 6 o’clock, saw a Mexican boy with a rifle, about one hundred yards from where deceased was found; and, coming back to Las Cruces at about 7 o’clock, heard a shot at or near said place. Defendant also offered affidavit- of W. R. Fall, showing that feeling against defendant was so intense in Las Cruces that it was impossible, in opinion of affiant, for defendant to have had a fair trial by an impartial jury. William Breeden, counsel for defendant, made affidavit that he was called before a citizen’s meeting, and told that they “would see that defendant had a fair trial, but that no continuance or change of venue must be had,” that he did not ask for a continuance or change of venue because of fear of violence to his client at the hands of the citizens; and the court, in passing on the motion and affidavits, says: “That feeling, that excitement [of the citizens] was unquestionably sufficient at the time this person went to trial to grant a change of venue under our law, and I don’t believe that there is a judge upon the bench, not even the judge of this court, who is interested because ,of relationship [with deceased], who would for a moment have hesitated to have given that change. * * * In my judgment, that opinion [as expressed within affidavit of W. R. Fall] was well taken and given.”
Pdú°írf accused: It now becomes our duty, upon a full examination of the case and the law applicable thereto, to say whether the court, in the exercise of its discretion, erred in refusing a new trial. U. S. v. Lewis, 2 N. M. 463. And let us remember that “the full protection and privileges of the law should be given to all men, and certainly should not be withheld from the weak, the poor, and the humble. The most hardened criminal, although we may believe him to be most guilty, has the same rights and privileges with us as the most innocent. If the defendant is guilty, he should be punished; but it should be done according to law.” Mahl v. State, 1 Tex. App. 127. Article 6 of the amendments to the constitution of the United States provides: “In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury * * * and to have the assistance of counsel for his defense.” Mr. Justice Miller, after discussing the meaning and object of this provision, concerning an “impartial jury of the state,” says: “The remaining provisions of this article are among the most important rights which are guarantied by the constitution.” Miller, Const. 508. The provision of our constitution either means something, guaranties a substantial right, or it means nothing; and, as construed again and again by our highest courts, it confers upon a citizen, be it the most innocent person or the most hardened criminal, absolute rights of which he can not be deprived by statute or decision. One privilege is as absolutely conferred as the other. Nothing except violence can deprive the accused of either; and our courts are not founded upon violence, not guided by the demands or intimidated by the threats of mobs or vigilance committees, but stand ready to do justice under the law, with the constitution as the foundation stone upon which rests the entire superstructure. Was the trial of this defendant a “fair and impartial trial” with such a feeling against him as justified the making of the affidavit alluded to and indorsed by the trial judge? He was arrested, hurried into trial, “defended” by counsel who was intimidated, as shown by his affidavit, and even more clearly shown by the record, from which we see that this counsel sat quiet without an objection, no matter what testimony was offered or error committed. This intimidation must have been apparent to those present, to the prisoner, and to the court, for we find the defendant upon the second day throwing himself upon the mercy of the court, and asking assistance in his defense, and the judge as promptly granting it; but this was after the prosecution had rested. Is it not evident that, instead of a free counsel, such as the constitution contemplated, there was here one skilled in the law, but afraid to use his skill; defending the accused not as a lawyer with the weapons of law; in name a counsel, in reality, not the substance, but the shadow, taking his cue from an enraged people, a power behind the hall of justice, an excited populace, justly frenzied by the perpetration of a foul murder, demanding a sacrifice for a sacrifice, a life for a life, stopping not for laws, for constitution, for sacred rights, for courts, bent on revenge? If the affidavits are true, with the jury which tried this man already in attendance upon court in Las Cruces, excitement intense, armed men guarding the manacled prisoner, his counsel intimidated, was not this the mere shadow of a trial, in reality a mockery of justice, the court but the vehicle for venting the wrath of an infuriated people? The statute law of this territory provides for change of venue, not in the discretion of the court, but as a matter of right, as absolute as the provision of a constitution; and yet, through intimidation, proven and not denied, the accused is deprived of the right. But there is another point to be considered: In Gifford v. People, 87 Ill. 210, it is held that “evidence of prior misconduct of the accused is never admissible in a criminal trial, except to prove prior malice toward an individual, or guilty knowledge.” 1 Whart. Crim. Law, 639; Rosc. Crim. Ev. 97; 1 Phil. Ev. 765. See, also, Divine v. People, 100 Ill. 290. 1 Wharton, Evidence, section 29, says: “As a general rule, it is inadmissible, when the issue is whether A. did a particular thing, to put in evidence the fact that he did a similar thing at some other time. * * * The real issue would thus be obscured, and verdicts taken on side issues;” but, “if identity is disputed, it is admissible to prove that a person like the person charged was engaged about the same time in similar acts,” and, “if an alibi is set up, it is relevant to prove that defendant at the time he is alleged to have been absent was present, perpetrating independent crimes.”
It is not necessary to multiply authorities upon this well established rule, and yet we find here the witness Saens testifying before the jury of an attempt by defendant to “hold up” a negro at 2 o’clock in the afternoon. Eor what purpose could this testimony have been offered? Clearly only to prove a preconceived theory that the defendant killed the deceased for the purpose of robbery; and yet there is notone iota of testimony to show that the deceased was robbed; and, even had there been, to make it admissible it must first have been conceded that defendant was guilty, and only motive lacking. This was error. If Rivera’s testimony -as to defendant’s holding him up was admitted for the purpose of proving identity of accused, it was admissible. It is proper to say that Judge John R. McEie, presiding judge of the third district, being disqualified, Judge Edward P. Seeds, of the first district, presided in the trial of this cause. In all the evidence upon the record it is manifest that it was an abuse of the discretion vested in the lower court to refuse a new trial, and hence judgment is reversed, and cause remanded.
O’Brien, C. J., concurs. Lee, J., concurs in the result.