OPINION OP THE COURT
WATSON, J.
Price Clements appeals from á capital sentence on conviction of murder in the first degree for the killing of Clay Carpenter in Rio Arriba County. '■
In January, 1922, the bodies of Frank Akin and Clay Carpenter were discovered in an arroyo back of an unoccupied cabin. Clay Carpenter’s death was caused by a gunshot wound in the head, a large caliber bullet striking him on the left side of the occipital protuberance. Akin’s body showed that he had been struck on the left temple with a blunt instrument, fracturing the skull and inflicting a necessarily immediately fatal wound. He had also been shot on the right side of the head with a large caliber bullet. This wound was fatal, but not necessarily immediately so. Tracks in the snow and conditions inside the cabin indicated that one of these men had been slain in the cabin and dragged out the door around the cabin to the arroyo, where he was found, and that the other had been killed in front of the cabin, near a place where an automobile had stood; and dragged- to the place where found. In the arroyo, some distance from either of these bodies, was found a large bucket containing bloody snow, which, apparently, had been placed there by the person who had disposed of the bodies. There was some evidence about the scene of the homicides of an attempt to remove the traces thereof.
On the evening of the day of the homicides, appellant appeared at El Vado, some 12 miles distant. There he left with a state’s witness a number of articles, selling some for a few dollars, and apparently simply leaving others. Among these articles were some identified at the trial as Carpenter’s. He exchanged with this witness a rifle and a 45-caliber pistol for a 32-caliber pistol. The 45-caliber pistol exchanged contained two loaded and two empty cartridges. Among the articles left was a shovel with blood on the handle and blade. Appellant also left with the witness a Ford car, to be cared for until he should return in April or May.
After making these arrangements, defendant went to Lumberton, Pueblo, Colorado, Hodge City, Kansas, and finally to Matador, Texas, where he was apprehended. He waived extradietion, and returned in custody of the sheriff of Rio Arriba county. On that trip from Matador, appellant related to the sheriff his yersion of the double homicide, which we quote from appellant’s brief:
“Clements was standing in the doorway of the cabin after breakfas.t looking out at the time of the tragedy. Akin was sitting o.n the bench near the wall beside the breakfast table, while Carpenter was sitting on a stool near the stove. Carpenter and Akin commenced quarreling about a poker game in which they had íóst heavily. They had been gambling at a nearby lumber camp. The quarrel became heated finally, and words led to blows, and ended by Carpenter grabbing a pickax which was in the cabin and striking Akin in the head. Akin fell forward on the table and then to the floor. At the sound of the blows Clements turned and cried, “My God, Clay; what have you done?” Carpenter, with an oath, yelled, ‘I’ll get you, too!’ At this Clements grabbed a revolver from the table, and Carpenter reached back to the bunk and got a rifle which was lying on the top of the bedding (thus doubtless making the smear of blood found on the bedding). Clements ran out of the door and got behind the auto, while Carpenter followed with the rifle, swearing and saying that Clements could not get away from him. Por a time Carpenter and Clements dodged back and forth around the auto, and then, being on opposite sides, Clements stooped and looked under just in time to see Carpenter looking under from the opposite side. Quick as a flash Clements jumped to the running board and kneeled there with the body of the car between them. After a moment he peeked over the side of the car and saw Carpenter’s rifle barrel come up and then his head as Carpenter arose from a kneeling position. As Carpenter’s head came in view, Clements fired and Carpenter stumbled and fell. Clements, then a boy of about 22, overcome by fear, drag-ged the bodies of the two men to the arroyo behind the cabin, took such money as they had, between $150 and $170, jumped in the auto and fled. Clements only had $2 or $3 of his own, and took the money from the bodies to get away with.”
It is appellant’s first contention that the evidence was insufficient to warrant the verdict, or to warrant submission to the jury. The conviction rests entirely upon appellant’s statement, to which' the sheriff testified, and upon circumstances appearing in evidence. Appellant contends that there is remarkable correspondence between these circumstances and appellant’s statement of what took place: that as the statement was exculpatory, the state was bound to prove its falsity; and that the proof of appellant’s guilt, as distinguished from the fact of the killing, must be found, if at all, in the physical facts and circumstances.
The state points, out that appellant made no motion for a directed verdict, announced himself as satisfied with the proposed instructions later given by the court, and, although he made a motion for a new trial, failed therein to raise the point now urged. State v. Garcia, 19 N. M. 414, 143 F. 1012, is cited to the proposition that, under such circumstances, appellant cannot, in this court, obtain a review of the evidence. It was so held in the original opinion. On rehearing, however, it was decided that this court has the inherent power “to see that a man’s fundamental rights are protected, ’ ’ even though he is not in a position to claim them as a matter of legal right. It there appeared not only that there was no substantial evidence to support conviction, but that innocence was actually and affirmatively disclosed. Therefore the inherent power was exercised and a new trial granted. If the saíne were true in this case, the precedent would require a new trial. In definition or limitation of the inherent power to protéct the fundamental rights of accused persons, this court said in the Garcia Case:
• “The .restrictions of the statute [Laws 1917, c. 43, § 37] apply .to • the parties, not to this court. This court, of course., will exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of' strictly legal, technical, or unsubstantial claims; nor will we consider the weight of evidence if -any substantial evidence was submitted to support the verdict. If substantial justice has been done, parties must have duly taken and preserved exceptions in the lower court to the invasion of their legal right before we will .notice them hei’e.”
la view of this doctrine, we are not prepared to hold with the state that a review of the evidence in a capital case should be refused because of the failure to present to the trial court the- question of its insufficiency. Having reviewed it and having found it sufficient, there is no occasion to apply, extend, or limit the rule of the Garcia Case. .. ■.
The jury necessarily tested appellant’s story by the circumstance's shown. Among these were flight, taking a considerable sum of’money from the bodies, concealment of the bodies, attempts to remove evidences of the crime, and disposing of the weapon with which the jury might have-found both homicides to hay.e been committed.
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OPINION OP THE COURT
WATSON, J.
Price Clements appeals from á capital sentence on conviction of murder in the first degree for the killing of Clay Carpenter in Rio Arriba County. '■
In January, 1922, the bodies of Frank Akin and Clay Carpenter were discovered in an arroyo back of an unoccupied cabin. Clay Carpenter’s death was caused by a gunshot wound in the head, a large caliber bullet striking him on the left side of the occipital protuberance. Akin’s body showed that he had been struck on the left temple with a blunt instrument, fracturing the skull and inflicting a necessarily immediately fatal wound. He had also been shot on the right side of the head with a large caliber bullet. This wound was fatal, but not necessarily immediately so. Tracks in the snow and conditions inside the cabin indicated that one of these men had been slain in the cabin and dragged out the door around the cabin to the arroyo, where he was found, and that the other had been killed in front of the cabin, near a place where an automobile had stood; and dragged- to the place where found. In the arroyo, some distance from either of these bodies, was found a large bucket containing bloody snow, which, apparently, had been placed there by the person who had disposed of the bodies. There was some evidence about the scene of the homicides of an attempt to remove the traces thereof.
On the evening of the day of the homicides, appellant appeared at El Vado, some 12 miles distant. There he left with a state’s witness a number of articles, selling some for a few dollars, and apparently simply leaving others. Among these articles were some identified at the trial as Carpenter’s. He exchanged with this witness a rifle and a 45-caliber pistol for a 32-caliber pistol. The 45-caliber pistol exchanged contained two loaded and two empty cartridges. Among the articles left was a shovel with blood on the handle and blade. Appellant also left with the witness a Ford car, to be cared for until he should return in April or May.
After making these arrangements, defendant went to Lumberton, Pueblo, Colorado, Hodge City, Kansas, and finally to Matador, Texas, where he was apprehended. He waived extradietion, and returned in custody of the sheriff of Rio Arriba county. On that trip from Matador, appellant related to the sheriff his yersion of the double homicide, which we quote from appellant’s brief:
“Clements was standing in the doorway of the cabin after breakfas.t looking out at the time of the tragedy. Akin was sitting o.n the bench near the wall beside the breakfast table, while Carpenter was sitting on a stool near the stove. Carpenter and Akin commenced quarreling about a poker game in which they had íóst heavily. They had been gambling at a nearby lumber camp. The quarrel became heated finally, and words led to blows, and ended by Carpenter grabbing a pickax which was in the cabin and striking Akin in the head. Akin fell forward on the table and then to the floor. At the sound of the blows Clements turned and cried, “My God, Clay; what have you done?” Carpenter, with an oath, yelled, ‘I’ll get you, too!’ At this Clements grabbed a revolver from the table, and Carpenter reached back to the bunk and got a rifle which was lying on the top of the bedding (thus doubtless making the smear of blood found on the bedding). Clements ran out of the door and got behind the auto, while Carpenter followed with the rifle, swearing and saying that Clements could not get away from him. Por a time Carpenter and Clements dodged back and forth around the auto, and then, being on opposite sides, Clements stooped and looked under just in time to see Carpenter looking under from the opposite side. Quick as a flash Clements jumped to the running board and kneeled there with the body of the car between them. After a moment he peeked over the side of the car and saw Carpenter’s rifle barrel come up and then his head as Carpenter arose from a kneeling position. As Carpenter’s head came in view, Clements fired and Carpenter stumbled and fell. Clements, then a boy of about 22, overcome by fear, drag-ged the bodies of the two men to the arroyo behind the cabin, took such money as they had, between $150 and $170, jumped in the auto and fled. Clements only had $2 or $3 of his own, and took the money from the bodies to get away with.”
It is appellant’s first contention that the evidence was insufficient to warrant the verdict, or to warrant submission to the jury. The conviction rests entirely upon appellant’s statement, to which' the sheriff testified, and upon circumstances appearing in evidence. Appellant contends that there is remarkable correspondence between these circumstances and appellant’s statement of what took place: that as the statement was exculpatory, the state was bound to prove its falsity; and that the proof of appellant’s guilt, as distinguished from the fact of the killing, must be found, if at all, in the physical facts and circumstances.
The state points, out that appellant made no motion for a directed verdict, announced himself as satisfied with the proposed instructions later given by the court, and, although he made a motion for a new trial, failed therein to raise the point now urged. State v. Garcia, 19 N. M. 414, 143 F. 1012, is cited to the proposition that, under such circumstances, appellant cannot, in this court, obtain a review of the evidence. It was so held in the original opinion. On rehearing, however, it was decided that this court has the inherent power “to see that a man’s fundamental rights are protected, ’ ’ even though he is not in a position to claim them as a matter of legal right. It there appeared not only that there was no substantial evidence to support conviction, but that innocence was actually and affirmatively disclosed. Therefore the inherent power was exercised and a new trial granted. If the saíne were true in this case, the precedent would require a new trial. In definition or limitation of the inherent power to protéct the fundamental rights of accused persons, this court said in the Garcia Case:
• “The .restrictions of the statute [Laws 1917, c. 43, § 37] apply .to • the parties, not to this court. This court, of course., will exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of' strictly legal, technical, or unsubstantial claims; nor will we consider the weight of evidence if -any substantial evidence was submitted to support the verdict. If substantial justice has been done, parties must have duly taken and preserved exceptions in the lower court to the invasion of their legal right before we will .notice them hei’e.”
la view of this doctrine, we are not prepared to hold with the state that a review of the evidence in a capital case should be refused because of the failure to present to the trial court the- question of its insufficiency. Having reviewed it and having found it sufficient, there is no occasion to apply, extend, or limit the rule of the Garcia Case. .. ■.
The jury necessarily tested appellant’s story by the circumstance's shown. Among these were flight, taking a considerable sum of’money from the bodies, concealment of the bodies, attempts to remove evidences of the crime, and disposing of the weapon with which the jury might have-found both homicides to hay.e been committed. It will be npted that appellant’s explanation, as above quoted., fails..to mention the gunshot wound in Akin’s right temple. It was,, however, brought out on cross-examination of the sheriff that just eis Carpenter was leaving the cabin in pursuit of appellant, there was a shot, which appellant supposed to have been accidental. There .is no other way, under appellant’s version of the facts, to account for this wound. It was the state’s theory that Akin was shot before he.was struck with the blunt instrument. This theory was supported by the expert testimony of a physician, not in any way. rebutted. The jury had a clear right to believe the state’s theory in regard to this, and it was inconsistent with that of the defense. Appellant testified that he fired bnt one shot. In the pistol which he disposed of on the day of the homicide there were two empty shells. Thus there were circumstances from which the jury might draw inferences of guilt, and there was evidence which, if believed by the jury, would demonstrate that appellant had not truthfully accounted for the killing of Akin. He was admittedly there, and if his story of. the occurrences was false, the jury was justified in convicting him as it did.
Appellant urges two further grounds for reversal, both of which were set up in a motion for new trial and overruled by the court. The first of these grounds is alleged tampering with the jury, and the second is misconduct of the assistant district attorney in argument.
In support of the charge of tampering with the jury, three affidavits were submitted to the effect that after the jury had retired to consider its verdict a person referred., to as “the prosecuting witness,” although he did not testify in the case, entered the room at the hotel, where the jury was, and remained four or five minutes. One of these affidavits contains the assertion that during a recess in the trial this same person conversed apart with one of the jurors,, unnamed, about 20 minutes. The state presented the counter affidavit of the person referred to, in which he expressly denied any conversation with the jury or any member thereof after retirement of the jury to consider its verdict. This affidavit the court evidently construed as a denial of the other incident, although the language used is somewhat equivocal. Upon this, point the court, in ruling upon the motion, found as follows :■ ■
“That as to the charge in the motion for a new trial that jurors were permitted to talk with and ■ did talk with P. H. Hill, both before and after retiring- to deliberate on their verdict herein, the court, certifies that the state has filed the affidavit of. P.' H. Hill in which he denies said charge in toto, and, considering the affidavits filed in said matter upon said point and all the circumstances surrounding the said trial, and in view of the fact that no attempt is made to set up any statement made by said P. H. Hill to show whether or not he did make any statement which was prejudicial, the court cannot find, and does not find, that said P. H. Hill did talk to said jury, or any member thereof, at any time after the beginning of said trial.”
Considering this, as we must, as a finding against the truth of the charges made, no question of law would seem to be presented, and appellant’s contention must be overruled.
In his argument to the jury, the assistant district attorney made this incomplete remark:
“We are sorry that the jury does not have the benefit of the defendant’s explanation — ”
At this point he was interrupted by the objection of appellant’s counsel, and admonished by the court not to proceed along that line, and the jury was instructed to disregard the remark. It is here urged, as on the motion for new trial, that this was a comment by the assistant district attorney upon the failure by the appellant to take the stand in his own behalf, and constitutes reversible error, incapable of being cured by anything that the trial court did or could do. Counsel cite Code 1915, § 2166, which provides:
“In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of crimes, offenses and misdemeanors in the courts of this state, the person so charged shall, at his own request, but not otherwise, be a competent witness; and his failure to make such request shall not create any presumption against him.”
They also cite many cases in support of their contention. In our view, the principles of the eases cited are not here involved.
It'appears from the court’s ruling on the motion for new trial that the assistant district attorney was at the time discussing and criticizing appellant’s version of the facts as it appeared in the testimony of the sheriff. That would seem to have been an entirely proper subject of discussion before the jury. The appellant having made a statement to the sheriff, it was proper in argument to test its truth by inquiring whether it was in harmony with the circumstances. The remark of the assistant district attorney, as far as it had proceeded, is entirely consistent with an intent to continue the discussion of appellant’s testimony vicariously before the jury. He said nothing which, under the circumstances, indicates any intention to refer in any manner to the fact that appellant, instead of taking the stand in his own behalf, rested content with the testimony of the sheriff. The assistant district attorney, by counter affidavit used in connection with the motion for new trial, says that he intended to complete the sentence in these words:
“ — of the wound in the right side of Akin’s head.”
We refer to this, not because the particular intent of the assistant district attorney is determinative of the question of error, but as illustrating that it would have been perfectly possible, under the circumstances, to complete the remark without any improper reference to appellant’s failure to testify.
It would be going far indeed to grant a new trial under such circumstances, particularly in view .of the fact that no actual prejudice to the appellant is shown. We do not hold that, if there had been comment on appellant’s failure to testify, it would have been necessary to show prejudice to obtain a new trial. We do not consider the question. We do hold that, before the question can arise, it must appear that there was such comment. Counsel cannot seize upon an incomplete remark which may or may not have reference to appellant’s failure to testfiy, put their own interpretation upon it, and claim a reversal. In such a case it does not appear necessarily as misconduct of the assistant district attorney. Whatever effect the colloquy may have had on the jury counsel are themselves responsible for. While courts have gone to considerable lengths to prevent comment on the failure of an accused person to testify in his own behalf, no case similar to this has been brought to our attention: nor can we, upon any principle urged, or with which we are familiar, sustain appellant’s present contention.
Having found no error, and being satisfied that the appellant had a fair trial and that the verdict is supported by substantial evidence, the judgment must be affirmed.
It is so ordered.
PARKER, C. J., and BICKLEY, J., concur.