OPINION OF THE COURT.
RAYNOLDS, J.
The appellant, Sylvester E. Bailey, was indicted at the March, 1919, term of the district court for Grant county, N. M., for the killing of one James N. Bedore, and a verdict of murder in the first degree was returned by the jury. Appellant filed a motion for a new trial, which was overruled and the appellant sentenced to be executed Friday, April 25, 1919. From the verdict and sentence appeal is taken to this court.
At the time of the homicide in question, the appellant was a prospector and miner living on his mining claim at a place called Vanadium, situated near Silver City in Grant county. On the mining claim were a store building, a small adobe residence, and an automobile garage. Appellant had rented his store to one L. E. Freeland. Freeland had rented the dwelling at the direction of appellant during his absence to the deceased, Bedore, for a period of three months ending September, 1918. Upon appellant’s return to his claim he occupied a part of a box car which had been used by the railroad as a temporary depot. While appellant was waiting for the possession of his property, the deceased, Bedore, had turned over his dwelling to one Rose Freeland, who was then occupying it. Appellant notified the deceased and Rose Freeland that he desired possession of his dwelling on September 1, 1918. Deceased, Bedore, shortly after September 1st had tendered to the appellant another month’s rent and appellant had refused to accept it. There was testimony to show that on the morning of the killing the deceased had stated that he was about to move from the premises of the appellant On that day, and that he had made arrangements with one of the witnesses to secure a team to move his belongings from said premises.
The appellant in his testimony, and by the testimony of other witnesses, attempted to show that the gun from which the fatal shot was fired was discharged by accident in a struggle between him and the deceased, after the appellant had taken the gun from under his pillow and used it as a club to drive off the deceased, who was about to attack him in his room. Upon examination of the body of the deceased, it was found he was shot in the abdomen, about two inches below the breastbone and a half inch to the right of the median line, and there was no point of exit. The shirt and underclothes hád holes in them and were powder burned. There were no eyewitnesses to the homicide, and the deceased made no statement, living only a few minutes after he fell. '
Appellant assigns errors as follows:
The court erred in sustaining the two challenges made by the state to certain jurymen in overruling the challenges made by the appellant to two others in regard to their qualifications. Upon this assignment the law is well settled in this state.
“We are of the opinion that Mr. Thompson correctly states the general rule regarding the discretion of the court in respect to impaneling the jury as follows: ‘In the superintendence of the pr-ocess of impaneling the jury, a large discretion is necessarily confided to the judge, which discretion will not he revised on error or appeal, unless it appears to have been grossly abused or exercised contrary to law.’ 1 Thompson, Trials, § 88.” Territory v. Lynch, 18 N. M. 15, at page 28, 133 Pac. 405, at page 407.
“Assuming that the trial court excused this juror without cause, nevertheless we do not consider that appellant has ground for complaint. In 1 Thompson on Trials, § 43, the author, after pointing to the fact that the right of peremptory challenge is a right to reject, and not a right to select, says.
“ ‘Therefore, a party cannot, in general, complain that the court has excused jurors without cause, or sustained untenable challenges of the other party, thus driving the objecting party to exhaust his peremptory challenges upon other members of the panel, or upon special veniremen or talesmen.’ See, also, Cyc. 315; 16 R. C. L. 291.
“Mr. Thompson, at section 120, more completely states the rule in the following language:
“ ‘No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a' juror was rejected by the court upon insufficient grounds, unless through rejecting , qualified persons, the necessity of accepting others not qualified has been purposely created.’
“We adopt this statement of the law, which is undoubtedly conclusive upon the assignment under consideration, in which, therefore, we find no merit.”
State v. Rodriguez, 23 N. M. 156, at pages 164, 165, 167 Pac. 426, at page 428 (L. R. A. 1918A, 1016).
[1] In the present case it also appears that the defense had not exhausted its peremptory challenges when the jury was finally impaneled, and the action of the court is not error, for this as well as the foregoing reasons:
. “The weight of authority is to the effect that, when a challenge for cause to a juror is improperly overruled, the error will be regarded as immaterial and without prejudice, if the objecting party did not challenge the juror peremptorily and his peremptory challenges were not exhausted; this upon the theory that a party must use all available means to exclude all objectionable jurors, and that a failure to do so constituted a waiver of his objection. 24 Cyc. 323, 324. We agree with the majority rule. This being true, it is our duty to assume that appellant was not harmed by the failure to sustain his challenge for cause.” State v. Smith, 24 N. M. 405, at page 408, 174 Pac. 740, at page 741.
“It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges. [Citing cases.]” Colbert v. Journal Pub. Co., 19 N. M. 156, at page 160, 142 Pac. 146, at page 147.
“Finally it is a rule of paramount importance that errors committed, in the overruling of challenges for cause are not grounds for reversal, unless it be shown an objectionable juror was forced upon the challenging party after he had exhausted his peremptory challenges. If his peremptory challenges remain unexhausted so that he might exclude the objectionable juror by that means, he has no ground for complaint.” 1 Thompson on Trials, § 68, p. 147.
See, also, People v. Durrant, 116 Cal. 179, 48 Pac. 75, at page 78.
[2] The court erred in admitting evidence of the alleged statement not amounting tó a threat, highly prejudicial to appellant. The statement or threat was as follows:
“He said he would protect his ground if he couldn’t by law, he would with his gun. He had done it and he could do it again.”
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OPINION OF THE COURT.
RAYNOLDS, J.
The appellant, Sylvester E. Bailey, was indicted at the March, 1919, term of the district court for Grant county, N. M., for the killing of one James N. Bedore, and a verdict of murder in the first degree was returned by the jury. Appellant filed a motion for a new trial, which was overruled and the appellant sentenced to be executed Friday, April 25, 1919. From the verdict and sentence appeal is taken to this court.
At the time of the homicide in question, the appellant was a prospector and miner living on his mining claim at a place called Vanadium, situated near Silver City in Grant county. On the mining claim were a store building, a small adobe residence, and an automobile garage. Appellant had rented his store to one L. E. Freeland. Freeland had rented the dwelling at the direction of appellant during his absence to the deceased, Bedore, for a period of three months ending September, 1918. Upon appellant’s return to his claim he occupied a part of a box car which had been used by the railroad as a temporary depot. While appellant was waiting for the possession of his property, the deceased, Bedore, had turned over his dwelling to one Rose Freeland, who was then occupying it. Appellant notified the deceased and Rose Freeland that he desired possession of his dwelling on September 1, 1918. Deceased, Bedore, shortly after September 1st had tendered to the appellant another month’s rent and appellant had refused to accept it. There was testimony to show that on the morning of the killing the deceased had stated that he was about to move from the premises of the appellant On that day, and that he had made arrangements with one of the witnesses to secure a team to move his belongings from said premises.
The appellant in his testimony, and by the testimony of other witnesses, attempted to show that the gun from which the fatal shot was fired was discharged by accident in a struggle between him and the deceased, after the appellant had taken the gun from under his pillow and used it as a club to drive off the deceased, who was about to attack him in his room. Upon examination of the body of the deceased, it was found he was shot in the abdomen, about two inches below the breastbone and a half inch to the right of the median line, and there was no point of exit. The shirt and underclothes hád holes in them and were powder burned. There were no eyewitnesses to the homicide, and the deceased made no statement, living only a few minutes after he fell. '
Appellant assigns errors as follows:
The court erred in sustaining the two challenges made by the state to certain jurymen in overruling the challenges made by the appellant to two others in regard to their qualifications. Upon this assignment the law is well settled in this state.
“We are of the opinion that Mr. Thompson correctly states the general rule regarding the discretion of the court in respect to impaneling the jury as follows: ‘In the superintendence of the pr-ocess of impaneling the jury, a large discretion is necessarily confided to the judge, which discretion will not he revised on error or appeal, unless it appears to have been grossly abused or exercised contrary to law.’ 1 Thompson, Trials, § 88.” Territory v. Lynch, 18 N. M. 15, at page 28, 133 Pac. 405, at page 407.
“Assuming that the trial court excused this juror without cause, nevertheless we do not consider that appellant has ground for complaint. In 1 Thompson on Trials, § 43, the author, after pointing to the fact that the right of peremptory challenge is a right to reject, and not a right to select, says.
“ ‘Therefore, a party cannot, in general, complain that the court has excused jurors without cause, or sustained untenable challenges of the other party, thus driving the objecting party to exhaust his peremptory challenges upon other members of the panel, or upon special veniremen or talesmen.’ See, also, Cyc. 315; 16 R. C. L. 291.
“Mr. Thompson, at section 120, more completely states the rule in the following language:
“ ‘No party can acquire a vested right to have a particular member of the panel sit upon the trial of his cause until he has been accepted and sworn. It is enough that it appear that his cause has been tried by an impartial jury. It is no ground of exception that, against his objection, a' juror was rejected by the court upon insufficient grounds, unless through rejecting , qualified persons, the necessity of accepting others not qualified has been purposely created.’
“We adopt this statement of the law, which is undoubtedly conclusive upon the assignment under consideration, in which, therefore, we find no merit.”
State v. Rodriguez, 23 N. M. 156, at pages 164, 165, 167 Pac. 426, at page 428 (L. R. A. 1918A, 1016).
[1] In the present case it also appears that the defense had not exhausted its peremptory challenges when the jury was finally impaneled, and the action of the court is not error, for this as well as the foregoing reasons:
. “The weight of authority is to the effect that, when a challenge for cause to a juror is improperly overruled, the error will be regarded as immaterial and without prejudice, if the objecting party did not challenge the juror peremptorily and his peremptory challenges were not exhausted; this upon the theory that a party must use all available means to exclude all objectionable jurors, and that a failure to do so constituted a waiver of his objection. 24 Cyc. 323, 324. We agree with the majority rule. This being true, it is our duty to assume that appellant was not harmed by the failure to sustain his challenge for cause.” State v. Smith, 24 N. M. 405, at page 408, 174 Pac. 740, at page 741.
“It is our opinion that the better rule is that an erroneous overruling of a challenge for cause, even though the peremptory challenges are thereafter exhausted, will not warrant a reversal of the judgment unless it is further shown upon appeal that an objectionable juror was forced upon the challenging party and sat upon the jury after such party had exhausted his peremptory challenges. [Citing cases.]” Colbert v. Journal Pub. Co., 19 N. M. 156, at page 160, 142 Pac. 146, at page 147.
“Finally it is a rule of paramount importance that errors committed, in the overruling of challenges for cause are not grounds for reversal, unless it be shown an objectionable juror was forced upon the challenging party after he had exhausted his peremptory challenges. If his peremptory challenges remain unexhausted so that he might exclude the objectionable juror by that means, he has no ground for complaint.” 1 Thompson on Trials, § 68, p. 147.
See, also, People v. Durrant, 116 Cal. 179, 48 Pac. 75, at page 78.
[2] The court erred in admitting evidence of the alleged statement not amounting tó a threat, highly prejudicial to appellant. The statement or threat was as follows:
“He said he would protect his ground if he couldn’t by law, he would with his gun. He had done it and he could do it again.”
Standing alone such an indefinite statement might be objectionable as a threat, but with other evidence of the relationship between the parties and the circumstances of the case, it is clearly a threat and properly admitted.
“One of the errors assigned by the defendant is that evidence of a threat made by him to shoot a person whom he did not name, was admitted. There was, besides the language of the threat itself, evidence that the defendant had been warned against Camilo Martinez not long before he made the threat, and the undisputed fact that he, soon after he made it, began a controversy with Martinez on a matter in dispute between them, and did shoot him. It was for the jury to determine from the evidence whether he had reference to Martinez when he made the threat, if they believed he made it. State v. Cochran, 147 Mo. 517; Moore v. People (Colo.) 57 Pac. 858; State v. Vance (Wash.) 70 Pac. 34.” Territory v. Alarid, 15 N. M. 165, at page 170, 106 Pac. 371, at page 372.
“It is a general rule that threats made by the defendant accused of murder, to kill some person not definitely designated, especially when made shortly before the commission of the crime to which they may be construe^ to refer, are admissible in evidence in connection with other explanatory circumstances on proof of the corpus delicti. See cases cited in note to the case of State v. Nelson, 89 Am. St. Rep. 691. Here the circumstances in evidence were. sufficient to have warranted the jury in believing that the note was sent to the justice of the peace on the morning immediately preceding the homicide, and the weight to be given to the evidence was for the jury. See, also, 13 R. C. L. 924.” State v. Martinez, 25 N. M. 328, at page 335, 182 Pac. 868, at page 870.
See, also, Territory v. Hall, 10 N. M. 545, at page 552, 62 Pac. 1083; Territory v. Pratt, 10 N. M. 138, at page 140, 61 Pac. 104; Miera v. Territory, 13 N. M. 192, at page 200, 81 Pac. 586.
[3] The court erred in permitting a witness to testify over appellant’s objection that the deceased was not a quarrelsome man before deceased’s reputation or character had been attacked. The general rule is that—
“Testimony as to the deceased’s peaceable character is not competent- on behalf of the prosecution until his character has been put in issue by the defendant.” 6 Ency. of Ev. p. 659.
This assignment is without merit. The character or reputation of the deceased had not been put in issue in the cross-examination, but the defendant had sought, unsuccessfully, to elicit facts which would show that the deceased was a quarrelsome and violent man. The evidence on redirect examination, the admission of which is assigned as error, simply followed the cross-examination and was properly admitted to explain and amplify the matters testified to on such cross-examination.
[4] The court erred in permitting the appellant while testifying to be cross-examined to the effect that he had been guilty of other offenses against the law. It is elementary and has been decided by this court many times that one offense may not be shown as evidence of the commission of another offense. In this case, however, the evidence objected to was not of other crimes, but of misconduct in the assertion of his rights, and was limited to the purpose of affecting the credibility of the witness;.the court so instructing upon request as follows:
“Gentlemen, it has been pérmitted to inquire of certain questions of the defendant concerning with respect to alleged moral misconduct — these questions and answers have been solely for the purpose of inquiring into the credibility of the accused as a witness and as affecting his credibility. You will consider them as affecting the credibility of the accused as a witness, not in his capacity as an accused.”
We find no error in this assignment. The general rule in matters of this kind' is laid down in the case of State v. Perkins, 21 N. M. 135, at page 144, 153 Pac. 258, at page 261, where the following language is used:
“Complaint is also made of the refusal of the trial court to permit the appellants, on cross-examination of Mrs. Kubena, a very important witness for the state, to ask the witness as to specific acts of wrongdoing on her part. The same is true of the prosecuting witness, Mrs. Knapp. The law in this jurisdiction was settled by the territorial Supreme Court in the cases of Territory v. Chavez, 8 N. M. 528, 45 Pac. 1107; Borrego v. Territory, 8 N. M. 446, 46 Pac. 349; and Territory v. De Gutman, 8 N. M. 92, 42 Pac. 48. There'is a sharp conflict in the authorities upon this question, hut, as the territorial Supreme Court has adopted the rule that proof of a witness’ particular overt acts of wrongdoing are ordinarily relevant as impeaching evidence, hut that such acts can never be shown by any evidence outside the examination of the assailed witness, and that the extent of such examination rests largely in the discretion of the trial court, we can see no good reason to depart from the rule of practice thus established.”
[5] The alleged assignments of error, Nos. 5, 6, 8, 9, and 10, are upon the refusal of the court to give certain instructions asked by the appellant. The rule in this jurisdiction is that if the instruction given by the court properly presents the law of the case to the jury, it is not error to refuse a requested instruction, covering the same ground. Territory v. Baker, 4 N. M. (Gild.) 236, at page 237, 13 Pac. 30; Cunningham v. Springer, 13 N. M. 259, at page 287, 82 Pac. 232; Territory v. Pierce, 16 N. M. 10, at page 14, 113 Pac. 591.
Instruction No. 1 asked for by the appellant is also objectionable because it includes in it the element of heat of passion and the absence of a deadly weapon, when the question was not involved in this phase of the case and it is admitted that the killing was done with a deadly weapon. In a subsequent instruction the court treating the law of manslaughter set forth the effect of heat of passion in reducing the grade of the crime from murder to manslaughter. All the instructions asked for are covered by those given by the court and those given by the court sua sponte correctly state and apply the law.
Realizing the importance of a case of this nature, we have carefully read the transcript with the view of ascertaining whether or not the appellant’s rights were properly protected. We have come to the conclusion after such examination that the instructions requested were properly refused, as they were covered by instructions given by the court, and that those given by the court, to which objection was made, correctly and fully set forth the law applicable to the evidence adduced by the state and the appellant, and that a fair and impartial trial was had.
Finding no error in the record, the judgment of the lower court is therefore affirmed, and it is so ordered.
ROBERTS, C. J., and PARKER, J, concur.