*1
cause of action employer adequate fail furnish him
surgical medical attention and injuries him,
failure results due to skill,
neglect, part lack of on the
person employed to care for This him. injuries
assumes that the here became more fatal, and in the end
severe because the
employer had the workman treated an
incompetent physician, whose failure to adequate
render aid resulted in the dis
ability or its increase. proposi This
tion was not raised pointed below or out chief, the brief in and we therefore will
not consider here. judgment
.We conclude that is cor-
rect and should be affirmed.
It is so ordered.
McGHEE, COMPTON, COORS and
LUJAN, JJ., concur.
SADLER, J., participating. C. *2 separate sentences to run concurrent-
ly imposed for calling confinement in penitentiary, the state after a verdict of guilty in each prose- case. The defendant appeal cutes this in an effort to secure a new trial charge of each filed him. The defendant was foreman during 1950 of the Todhunter County, ranch Grant Sanders, Cruces, Benja- Garland & Las Margaret Todhunter, owned Mrs. con- Sherman, Kiker, min Deming, M. H. A. sisting of some 75 sections of land border- Fe, appellant. Santa for ing at the Southwest corner for distance of two miles ranch of Victoria Land Martinez, Atty. Gen., L. Frank B. Joe and Cattle Company, sometimes called the Zinn, Atty. Gen., Wrinkle, Asst. Sp. R. J. ' Diamond A ranch. previously had He Pros., City, appellee. Silver worked for Mrs. Todhunter four *3 1947, months six months in and 1948 PER CURIAM. April 13, from 1949,to the time of ar- his defendant has filed a The motion for re- September 28, rest on 1950. He lived alone upon thereof, hearing and consideration the on during the ranch period the between filed heretofore has been withdrawn July September 1, 1950 and 1950,when and to follow the one is substituted there- young boys, two 11 one 12 and the other for. years age, of ranchers, sons of neighboring spent a portion considerable of the time Opinion. ranch,
with him on the apparently assisting performance jobs of such odd as SADLER, Chief Justice. capable were of doing. Todhunter, Mrs. defendant asks us to The reverse two ranch, of owner the was absent on a vaca- by him suffered convictions the district tion in Hawaii July between and County of for the larceny court Grant September 1, She 1950. returned to New cattle, case a heifer in the one calf being her Mexico and home on the ranch at date subject larceny and in the other a mentioned. last calf, belonging both bull Victoria Land Company. day The and Cattle two cases were The after defendant’s arrest inspector different based on informations but Sanitary were brand of Cattle Board purposes trial, following territory consolidated for this with eleven others as- 230 placed three roundup being cattle on weaned are or
sisting a conducted produced 326Tod- It days the Todhunter ranch. from they get or noses until sore belonging and 322 calves cows hunter “rubbing” “butting” or them 41 them; of which steer calves also 101 wire In other fence around the corral. brand, un- 3 Todhunter calves bore the words, inspector as testified the brand calves bull heifers unmarked marked * * * “they get them fence-broke cropped left having a remainder and the put pasture.” then them out in another The fre- ear, employed somewhat marking a roundup party found a cow and four calves ranchers, including defend- quently weaning trap, in this one of which be- charges of There no criminal ant. longed to and sucked her. The cow was pressed to the as kind filed or parlance is known in ranching what a inspector up by brand calves rounded “fighter” cow. One of four calves in except helpers, that are the two and his pen weaning Two hers. others of these prosecution subject and 97 of this subsequently Cattle four sucked other found on the sold cows calves were unclaimed animals. Sanitary Board as four, ranch. The Todhunter last a a bobbed tail did suck heifer up into four cut ranch is Todhunter roundup Todhunter ranch. The cow constituting pastures than rather five unmarked, produced an unbranded bull also pasture. northwest corner large one location known there was a which none the Todhunter the ranch calf cows due, doubt, nO' Mill” section “Big would claim. windmill large the site of that was fact inspector, Miller, brand A. testified J. by the cattle watering use tank for weaning trap concerning further part Visiting ranch. in that grazing there, the cow and calves found as follows: roundup during ranch of' the this section inspector and his men found the brand it, Miller, I “Q. understand Mr. As fenced off acres pasture of about 80 small testimony, your eighty that this larger of about sections. one within pasture is inside the four section acre *4 trap” and was used “weaning pas- big off from the pasture called cut apart separate and A. Yes. confining calves ture. during weaning mothers their “Q. pasture four Does the section period. place any point any border at here practice wire corral have a Land and Com- to the Victoria Cattle It is No, sir. pany? trap in which calves A. weaning inside pasture “Q. eighty “fighter” acre roundup party Does cow. The “bob- calves, and Cattle on the Victoria Land bed” the border tails of other three these Company? corral, indeed, A. does not. after getting them in the calves or the corral. We and went into the “Q. Did [*] “Q. Now, just go ahead and tell the took the what [*] you did when you anything calves and [*] have weaning of that sort A. [*] you put trouble [*] trap? them in rode ? with [*] up A. held outside the of the three calves they were turned out with the other cattle the tail some more.” These three were all heifer began mingle but as one of them had been to calves and after said already a witness rounded weaning trap. with the other cattle one had a “bobbed” tail mentioned bobbing up they “bobbed off When (not being tails already one with its tail bobbed), began Not the calf. With trouble with sucking a cow bearing the A or Diamond the cow we had trouble. Victoria Land and Cattle Company brand. “Q. many weaning How cows in day they Next found still another of the trap? A. One cow and four calves. mentioned, three calves other than the “Q. one with its Well, already bobbed, tail Describe the cow. A. fotind had cow, its mother she was be- cattle fights. on the She up rounded her, with gan up fighting the we cow bearing instant rode the brand of a neighboring get- trouble rancher Hightower. her. We had considerable named ting her to the corral. Soon roundup after the was completed, Victoria Land and you Company, Cattle
“Q. do owner What mean considerable you trouble? What did do? a ranch adjoining ranch, the Todhunter give A. We her a lot of room discovered some wet cows belonging to it finally got out and went some other enlarged bags and took them to cattle, cows, brought them into young Deming. A Victoria cow mothered the the corral with her and she followed calf up bull rounded on the Todhunter them into the corral. employee ranch and an of the Victoria
“Q. words, you get In other had to ranch, having recognized calf, the heifer go some other cows there and fol- brought in a Victoria cow which claimed it. right.” low her out ? A. That is The Todhunter ranch is accessible from the along Victoria ranch above, road a gas As stated one the four calves line weaning trap belonged guards gates. the which has cattle Em- *5 occasionally in- inhere in certain to error claimed company ployees gas of the submitting refused given and keys gates. for the structions had used this road and Actually, claimed jury. the case to the the court the that view of the fact be found given in the instruction is to vice appeal opinion how this of divided as to phrase “possession in the or use majority enter- determined, be a should in control” in instruction No. 7 and affirmed be taining the that it should view requested specially refusal defendant’s reversed minority that it should and a order, there- Nos. 2 3. In instructions awarded, as- the errors new trial and a fore, objec- this to understand the nature of dif- somewhat signed be treated will instructions tion we must set out two would be than otherwise ferent order “pos- given deal with effect to enable us as This is done so case. recently property session” of stolen opinion controversial our treat first in larceny They follows: cases. are as re- decide, this then follow we issue not de- to but referred find, other errors solving you from the evi- “No. ó If by Mr. opinion proposed posses- in an dence, cided calf was in the Justice opinion that his due to fact McGhee control of the defendant at sion and errors information, reversal and the time, ordered a alleged in the as They new trial. likely to occur on as alone suf- standing this fact is not they have when number and three in I ficient to convict the defendant. in- fol- next by us there will been resolved pos- you unexplained struct portion of language his low session alone one livestock be- McGhee opinion Mr. submitted longing raise the Justice to another does not agree- still are we were and on which presumption larceny has been that a for give credit We him thus possessor ment. committed that the wrote which he portion thief; it is circum- merely guilty one panel which, emergency drawing stance taken in connection relative to (1) testimony, other is to refusal to defendant determine (2) jurors for question guilt. challenges as each peremptory five together. being Our charges tried addition, “You must in further find rehearing will of the motion treatment the other elements the crime here- opinion. close included tofore in other instructions. indicated, is, that we already Thus You “No. 7 are further instructed up you as- take decision error first must determine from the evi- disagree. dence whether calf over which we It relates was in the signed pos- session control of at larceny tion that a has been committed time, alleged possessor thief; information. and that ad- is a *6 you If find that said calf was never in ditional necessary evidence is to estab- possession the corpus control of the defend- lish the con- delicti. ant, nection, then there can be no conviction some fact or circumstance of your necessarily verdict be an inculpatory must necessarily must nature ours). (Emphasis for the defendant.” be proven shown your satisfac- beyond tion a reasonable char- doubt to requested The instructions refused acterize the act as unlawful. possession which deal with the effect of larceny specially m cases are defendant’s “Inculpatory, as used in in- these requested They instructions Nos. 2 and 3. structions is some fact or circumstance read as follows: ¿«tending guilt.” to establish Requested Instruction “Defendant’s It is contended counsel for defendant
No. 2. that employment in the disjunctive the phrase “or” in the “possession or control” “You you are further instructed that in the court’s instruction No. rather determine must evidence than conjunctive, if the word possession “control” whether calf was in the all, was to be used at time, alleged privi- of the defendant at the as was leged you in the information. If to find larceny find that defendant guilty of possession calf never in said was the stolen merely calves were in his defendant, then there can be no control. your must conviction verdict nec- objected The defendant to the giving of essarily be for defendant. instruction No. 7 phrase which used the Requested Instruction “Defendant’s “possession following or control” in the No. 3. language r you find, evidence, from the “If that “Court’s instruction No. for the possession was calf reason that such does not correctly time, alleged at the defendant in the state applied the law as to the facts information, standing this fact alone in the above entitled charge.” criminal to convict sufficient defendant. objection interposed by you unexplained that instruct I specially goods one of to the court’s refusal of his possession belonging re- presump- raise quested to another does not instruction No. follows: following interlined in use of the word requested instruction ink “Defendant’s “possession” in- where the latter at each ground on No. word is attached to the and such cor- occurs therein was essential struction Admittedly, rehearing. the motion for these applied law as states rectly properly facts before us entitled causes.” cannot deemed above facts part as a of the record on the case properly us leaves before record have no desire dis- submitted but-we judge whether the trial doubt considerable on miss of the matter consideration specific mind directed to had his ever ground. instructions to inhere said now vice “possession.” dealing with actually given error We think claimed instructions Nos. speak the court’s We case, harmless of this even under the facts Certainly, 7, especially the latter. 6. and steps granted proper if it be defense counsel were the minds question taken below to reserve objection prepared it when conclusion that review here. is our *7 the they not mention do even it since claimed, facts the error under the here “and,” conjunctive made that the now claim present, is could not have harmless and “or,” disjunctive should the instead of slightest prejudiced in the the defendant "possession phrase used have by degree. disputed us that if It will not Furthermore, pre- they when or control.” the used at all word “control” was to be re- specially tendered pared and employed in the should con it have been 2, record fails No. the instruction quested disjunctive, junctive as it rather than as a sub- tendered that it was to disclose was in instruction No. 6. And the court’s 7, No. for the court’s instruction stitute propriety have been might it with omitted might served something which have altogether, as it was the defendant’s the fact attention on judge’s requested 2. But its im rivet instruction No. disjunctive proper was a difference between as in use in the that there guard. must his No. 7 should he be on court’s instruction not be which reversal of a unless ground made However, counsel harmed the defendant we satisfied rehear- motion for to their attached have it did not. one of their number affidavit of ing the granting that the word Even “control” asserting trial at the participated who may or contexts circumstances some 7 was vice in instruction No. claimed synonymous meaning not or judge and certificate to the argued “possession,” not an incidental to even “or the words control” were the clerk
235 erty suggested, meaning, as has been broader Victoria Land and- Cattle Com- pany, pointed thereby there cannot be argued, knowingly as well as did and in- single tentionally deprive case a in the evidence out owner of the imme- possession place jury might thereof, diate or instance to which without his con- sent,” they the word that does not show have related before could find possession. guilty charged. incident as any it to be a mere Does one think words, present instruction, not the following other there is here jury slightest could could find evidence on the defendant guilty based on some by “con- giving base a conviction the word constructive control flowing with, any synonymous -possession? meaning arising trol” It does not to, impress us, actually or so possession incident especially more in view Indeed, only shown. the de- trial 14, control court’s instruction No. reading fendant could have over animals follows: stolen, claimed to have been under the “If in these any rule, instructions present jury, facts before the court and direction or idea be stated in varying necessarily arose a mere incident to ways, emphasis no thereon is intended physical possession actual of them by me and none must be inferred him which the evidence established. you. For that you reason are not to single any out certain sentence or Furthermore, when the instructions individual instruction and are read and considered as whole ignore the others, you but are to con- vestige of doubt as to confúsion sider all the instructions as a whole jury disappears. That must be so regard and to each in light of all considered, many read we have times of the others.” 156, Rodriguez, held. State v. 23 N.M. 1016; L.R.A.1918A, P. State v. Notwithstanding disposition Dascenzo, 1099; 30 N.M. 226 P. State made of this claim error, by our Beal, v. N.M. 175. In P.2d the conclusion that the use in instruction *8 jury court’s instruction No. 6 the were No. of7 the words “or control” following “possession control,” told that “possession” stand the word is error, harmless ing alone, support most, would a at conviction. under the facts by disclosed the 3, jury record, instruction No. the we think told we should at this time beyond up must find any reasonable clear may doubt confusion that exist in “did unlawfully the proper feloni- decided cases on the way to ously calf, take and steal one in prop- given bull reserve' error instructions in á
236 subject primary the court has not instructed on the present. The situation like preserve it is the error if a to an instruction sufficient purpose any objection óf But, course, judge instruction is where is, mind of the correct tendered. to alert the it, erroneously to the in the court has instructed on contained to the claimed error subject, may although it. This funda- correct he instruction correct end any point, and has if it purpose be read into been tendered on the leaves must mental subject. judge’s Our rule on it doubtful whether the trial mind all rules on actually thereby Comp., (5lg), be- alerted to the 1941 19-101 de- is matter § sought Rule 70- fect Trial Court be corrected re- identical with ing quested instruction, pre- It is Comp. 42-1117. reads: the error 1941 108 and § unless, addition, specific served in vice any error preservation of “For given pointed in the instruction out to objection be made charge, must by proper objection the trial court thereto. exception instruction taken to or in- or, Smith, in of a failure to Certain of our remarks State in case v. given; law, 301, a correct N.M. P.2d State v. struct on tendered, Blevins, 39 N.M. before P.2d instruction must jury. place seemed to Reasonable different construction retirement rule, whereby on the generally be afforded counsel it has opportunity shall possible preserve object, except or tender instruc- declared in error so to court’s by specifically point- either charge tions.” objection thereto, ing out error in feels there is some confusion The court tendering a correct instruction. No dis- just subject on the cases in the decided tinction has been recognized in our deci- may be given an instruction error in when sions between instances where the court properly below reserved to have been said point. did or did not instruct on the disclosed such as is a situation Therefore, construction our above of Rule appeal. this proper before us on record given prospective 70-108 will be effect clarify Therefore, in order to' only, beginning publication with the approving join in cer- all of us situation permanent opinion in the volume of proposed by opinion language tain Reporter, protect Pacific order majority as a McGhee Mr. Justice might those who not be aware of the case, substantially con- found being in this placed struction now rule. paragraphs hereof. the next is next claimed the trial court failed interpreta the correct We believe 70-108, properly to instruct as to supra, that where of Rule tion *9 proof necessary the fact that for order to establish spectators admonished the argue that if larceny a was Counsel a committed. recurrence of such demonstration requested place' took that Nos. 12 instructions he “would clear the courtroom spectators to cure of all given and 13 should have been directly others not shortcoming in connected charge. the court’s with the trial of said cause.” carefully given The states, We have examined affidavit basing further opinion upon instructions as a whole and do not find observation and comments particular wanting charged. during them made trial, the course of the that danger, spectators most of the There was no as counsel seem to were friends of the fear, cattle given, growing industry, that under the instructions sympathetic to- especially excerpts those which include ward the prejudiced state’s case and to- above, quoted jury defendant; and, that the could infer the ward the further, they merely though were stolen be- several jury calves members of the were either engaged to the came and wandered on Tod- in or lost connected .with the cattle up penned by industry. ranch and were de- hunter with no intent to steal them. This fendant already observed, As it is not made wholly error is without merit.
claim of
clear
the defendant
legal
suffered
prejudice in
of
prompt
view the
and effec-
well convinced
We
tive manner in which the trial court of its
prejudice resulted to defendant
from the
squelched
own motion
outburst.
spectators
actions of
conduct and
not,
Whether so or
not,
trial,
in the course of
courtroom
a
position
urge
upon
same
ground
us as
next asserted. The
claim of error
“con
for reversal. Apparently,
time,
to,
at the
referred
his
duct and actions”
dis
counsel
prompt
deemed the
affidavit
by
vigorous
of one
closed
attor
by
action taken
judge
representing
any
at
cut
neys
the trial
off
flow
prejudice
of
at its
spontaneous
source
of
before
consisted
demonstration
could
poison
any
of
juror.
mind
of
approval
spe
scored-
view
fact that there was
argument
in his
no
prosecutor
to the
cial
motion for a
hands,
mistrial
further action
clapping
shouting
kind on
part
loud,
counsel,
of defendant’s
prefer
prolonged
“in a
and boister
we
whistling
affidavit,
view the matter in this
light
charitable
ous manner.”
against thinking
disposi-
there
mo
an exhibit to defendant’s
attached as
trial,
part
counsel
frankly
gamble
on the
that the tion
tion for a new
states
seat,
acquittal.
rapped
judge, arising from
trial
his
verdict
except
posed
those
Mr.
resolved
sufficiency
the evidence
*10
opinion proposed
in the
McGhee
guilty made the
support the verdicts of
Justice
by him to which all were and are
They
as
are
error.
claim of
of another
basis
They
up
will now
taken
agreement.
support in
substantial
to
without
said
he
exactly
presented by
as
him
and resolved
only have resulted
and could
evidence
the
portion
opinion
of
to follow
part
in the
of the
prejudice on the
bias and
paragraph
with the next
and
purpose
beginning
at
serve little
to
It would
jury.
point
the
where
continuing down to
herein
of all the facts
tempt a
statement
detailed
up
take
of such of the
discussion
supporting we
in evidence
and circumstances
by
grounds advanced
defendant’s counsel
Only
evidence
the state’s
verdicts.
the
support
rehearing
the motion for
filed
defendant,
jury. The
before the
was
material.
deemed
to take the stand. as
right, declined
his
was
evidence
satis
careful
of the
A
review
charging
informations were
Two
filed
by
however,
fying,
if believed
larceny
with the
of the heifer
undoubtedly
was,
it
and with
jury, as
judge
of
bull calves.
the district
and
incriminating
lack
circumstances
several
court,
Marshall,
A.
Honorable
W.
was
defendant,
explanation by the
it af
ing
By
disqualified
affidavit.
s''filiation
support
adequate
for the verdicts
fords
parties
Rogers
Honorable Waldo H.
jury.
guilty
into court
Of
returned
upon
agreed
for
presiding judge
was
course,
actually
no one
saw
Judge
the trial of this case. Prior to
disqualification he
possession.
Marshall’s
had drawn
into his
But
the calves
take
panel
petit jury
regular
of the
for
knowingly did so “with intent to
that he
disqualification
After his
he
term.
drew
pos
immediate
deprive
owner of the
emergency
names
constitute
twelve
thereof,
properly
could
be in
session”
Upon question
panel
the term.
being
for
from the facts
by the
evi
ferred
validity
panel Judge
as to
of this
raised
light
of the
viewed
surround
dence
emergency
an
Rogers found
to exist and
is all that
circumstances. This
ing
adopted
Judge
the names drawn
Mar-
.
Parry,
469,
necessary State v.
26 N.M.
shall.
864;
McKinley,
v.
30
P.
State
N.M.
194
points
appeal,
his
on this
As one of'
de-
757;
Ortega, 36 N.M.
54,
State v.
227 P.
error for
urges
Judge
fendant
Mar-
Reed, 55
943;
N.M.
57,
State v.
7 P.2d
empanel additional
shall to
talesmen
so
231,230 P.2d 966.
day
panel,
return
said
to fix the
day
being the date set
all
return
the trial
brings
to the
where
This
us
of this case.
assigned
argued have been dis-
errors
30-121,
many
Comp.,
ordinarily
try
draw-
in which he
Under
cases
§
disqualified.
panel
jurors
ing
of twelve
is not
of an additional
“any regular
spe-
during
is authorized
drawing
instant
In the
case the
court,
when the business of the
term
cial
emergency panel
jurors
for the term
an
judge,
court,
presiding
of the
setting
of the date for them to re
upon
expedited by
he
the attendance
can
prohibited by
such an act
port was not
as is
regular
than the
number
the court of more
disqualification
See State
statute.
v.
panel,”
jurors
petit jury
constituting the
Nagel, 185Or.
P.2d
where
“Emergency Panel.”
known
to be
statutorily disqualified
judge was
panel
emergency
is to serve with
This
bond,
jury panel
drew the
re
he set
jurors
petit
time
regular panel
for such
day,
on a certain
excused members
turnable
and, together
may determine
as the court
panel and drew additional men
fill
panel
petit jurors, shall
regular
with the
there
the vacancies.
court
said:
petit jury panel for the trial
constitute the
“ * * *
excusing jurors
Orders
*11
purposes
if
intents and
as
cases
all
to
likewise
the exercise
discre
involve
thirty-six
panel
petit jury
consisted
tion,
question
the orders
but
now in
jurors.
were not made in this case nor in
adopted
general
court has
Our
People
Doon,
case.
Ah
97 Cal.
v.
Lee
“Judges”,
30
under
rule stated in
171,
They
part
mission persons. The de- intent to kill certain interesting to note what but is said peremp- fense moved for allowance of four Chitty, op. supra, 535a, regard- cit. Sec. tory challenges under each the causes so ing right of several defendants tried to- consolidated, and one defendant who gether per- exercise the entire amount of appealed from tried on three indictments emptory challenges had each would have ruling denying court additional separately the. tried situation akin to —a objection peremptory challenges. had No presented wit: one here —to consoli- entered to the purpose “ dation of the indictments for the * * * right But when the of trial. The states: challenging exists, though de- several inquest, fendants tried the same Michie’s “C.S. Code § right each individual the full has a consolidation of several authorizes they challenges; number of but if his any person charges against ‘for the join they challenges, refuse in their act or transaction or for two or same separately, must be tried in order to more acts or transactions connected to- prevent delay might which arise excep- In the at bar gether.’ case no panel being from the whole exhausted.” taken to the tion is consolidation of cases, appealing but defend- appear that at law It would common ques- properly legal raised ant has together were tried where defendants whether such event he was as to tion or, join challenges must in their peremptory challenges to four alternative, separately; and, by- be tried entitled separate of the three indict- single in each analogy, we reason that a defendant- formed consolidated multiply the number not be allowed to ments would *13 appeared It also in of the cases Michie’s Code bill. C.S. § full joint plaintiffs had each been allowed joint or several provides: ‘And in all misdemeanors, de- peremptory challenges set of and the trials for crimes and capital, every person trial fendant was accorded like number. on other than per- challenging right shall have might in its discretion court cause, and, emptorily, showing without granted present a severance theory jurors four and more.’ no case the defendant could have ex wherein that, or more of the law is when two for, challenges but ercised the contended are offense indictments for the same offer sever defendant declined the consolidated, they to he treated predicate ance and <onthe cannot now error separate (Cit- same bill. counts of the grant refusal him a of the trial court Consequently, is ing cases.) there duplicate peremptory challenges. set of counts, containing but several one bill finally Taking up next and defendant’s it that a defend- would seem manifest rehearing motion mentioned out- at the peremptory ant not four entitled to opinion. withdrawing set in former our bill, separate in a challenges on counts virtually supporting The brief ex- motion but four that he should be allowed pends all challenge itself an suf- out consoli- challenges at the trial on the ficiency support of the evidence the ver- dated bill.” of-guilty dicts on against defendant based view, In our each the South Carolina postulate, to wit: quotation statutes out set above “If Mrs. Todhunter lived actually substantially declaratory of common ranch, on said excepting during law as de- foregoing seen in authorities period vacation, then she was on presents authority fendant the con- no to' any possession is submitted that tray. places great He reliance on the case calves, whether constructive States, 1 F. of Betts v. United Cir., otherwise, would have been in separate case but in that consolidation of actually owner ranch who lived prohi- implied fell within the indictments ranch, on said rather than in the of the statute bition ranch, foreman of said who is the based which declared the combin- appellant herein.” ing one indictment more than three cites offenses. Defendant other authorities Without attempting in our withdrawn do not deem in rea- which we for the a detailed resume of the facts all each of cases in an son consolidation in evidence found extensive record proper either or had been effected. there held such facts sub- we afford rendered. fact alone that defendant was ranch fore- verdicts support stantial *14 since man to connect him with the crimes evidence such reconsideration of A If charged. and such were the case would rehearing we the motion for studying quick judgments us that be to reverse the of con- confirms in it supporting briefs against viction him and to order Indeed, if a divided standing there is view. case, proposition discharge. it has not his But that is not the this court in the on disagree- as the well demonstrates. fairly as a of record advanced basis been yet opin- If, relationship by in withdrawn virtue of between But because our ment. item, attempt, by to them item ranchowner and foreman it we did ion thereby impossible legally facts be- became for de- incriminating the several record consideration, to fendant to commit of calf from larceny entitled jury fore possession physical the another if the boldly has asserted essential above, only last to be to conviction had its locale on the Tod- quoted postulate if, refrain regardless in like a few hunter of criminal another followed ranch — brief, intent, reading: taken into defendant’s in his animal later pages possession on the Todhunter with ranch defendant has contended “As the it, brought intent steal or elsewhere to and appeal, again con- throughout legal there with a like some intent — below, there no evidence was tends possession legerdemain, his became trans- taking and felonious an unlawful of possession formed into her from the be- There was no evi- defendant. ginning, thereby absolution to affording knowingly that defendant dence responsibility him all criminal in the of deprived the owner of intentionally premises, then only then and would these fact, thereof. there possession unsupportable assertions unsupported and which would evidence connect no be true. by defendant alleged the crime defendant them other the evidence any way course, But, magic there no such Tod- that he was foreman Regardless of his status as in the law. ranch, which on the calves hunter foreman, of Mrs. Todhunter’s regardless We have searched the were found. ranch, regardless ownership of the evidence.” in vain record fact, fact, it should be the if ours). (Emphasis may particeps crimi- have been she he and (an these two calves larceny in the nis doubly plain that counsel it is made Thus some state- implication fairly from arising can see evidence for the brief), still in defendant’s proof beyond the ments not an iota adduced defendant’s The evidence disclosed that defendant facts before the show larceny, the was in full as fore- participation charge of the ranch guilty owner, Todhunter, depend- stand. man. Mrs. him must two verdicts upon entirely ed after him to look nothing it to counsel mean Does pickup ranch. She furnished him with charged to been one the calves op- truck and horses and he had weaning trap, found stolen was ranch, cattle, rating branding wire, which bor- with barbed well fenced there were 28 on ranch head ranch at no what- Diamond A dered many belonging him and performing them, significance to Is ever? without other varied about ranch. duties have believed the calf jury may employees There were other no on trap in this with a placed weaning September except ranch from de- June keep a safe distance “fighter” cow and, indicated, no already fendant other his, employee owner, some away the person Sep- the ranch July Or, calf ? the missing to locate seeking *15 tember, boys, save the two 11 and young “fighter” familiar with the only one respectively, age, 12 of years who visited cow, such as defend- of characteristics portion all there a of latter him or place likely the calf ant, would period. gates along pipe lines cross- her, some several miles trap weaning with locked, kept ranch ing though were that, calf’s mother? Or not- from provided guards cattle were near them habit of a calf to withstanding the whereby automobiles and auto trucks her away its mother and range, from stray at could cross will. to charged here have stolen The calves charged have had travel from 8 17 which defendant would stealing with their cross sucked Victoria ranch cows distant from mothers and miles fences, upon contact with get 2 or 3 where were them. The wire evidence found, experienced cattlemen, weaning trap of them in a from familiar one se- with curely a of confined behind barbed wire fence characteristics cattle was that calves company? “fighter” cow as Does not suck a with a would cow unless it were her calf 22, 1950, being July trained to nothing mean without do so. In addi- proof September of ownership tion to one was the ranch while calves was alone on Mrs. Todhunter heifer involved identified by em- Hawaii, ployees by vacationing save for the of Victoria ranch its bobbed two'boys, by presence personally there 11 12 years being recognized of tail and by respectively, through sons of other age, neighboring identifying them marks. Add ranchers, all portion discovery tó these facts that of the -of time? a on Vic- enlarged hunter some wet cows admitted she had never had as toria ranch of many the Tod- roundup on as 101 calves over and hags soon after the above her nor- cows, production stated ranch, crop mal hunter two of which that she had a caught production normal above, crop by two calves mothered the in 1950. And subject roundup are now the same token the was left to its own conclusions, explanation prosecutions. being no forthcom- these two ing, shortage as to how a of 74 to 84 head ection, evidence, obj without It was also in by of cattle lost Mrs. Todhunter from her the Tod- belonging to that 101 calves not previous year, to which she ranch from ranch, involved which the two hunter objection, place. without took She testified part, caught were constituted a large number of testified this -cattle were however, developed, that two roundup. during period of defendant’s em- missed mothered, one the 101 mentioned were her ployment on ranch. by by a Victoria Hightower a cow and one Throughout argument counsel up. cow, This among the cattle rounded by suggestion subject innuendo two the left calves of which the equal there opportunity intimated part. prosecutions a The re- these were larcenies, if mothers, larceny, there was a these maining being calves without by Todhunter,' been committed to have Mrs. Sanitary Board as sold the Cattle the ranch and owner defendant’s em- Although 41 of the 97 unclaimed animals. fact that ployer. The she declined to claim brand she head bore Mrs. Todhunter’s the 101 head of any of motherless calves them, giving not claim as a reason would ranch, her found on them bearing her prosecution if she did so. that she feared brand, is, course, puzzling factual situ- two bull calves were un- Three heifers and go ation. Counsel do not so far as to assert the remainder of unclaim- marked and these party. us, guilty she is the It seems to with- having heifers each animals were ed passing judgment unnatural, out ear, mark cropped left the ear used de- part unexplainable, (be- attitude on her fendant, many good as well other *16 that two members of yond testimony her ranchers. Sanitary her she Board told the Cattle explanation presence There was no of the expose prosecution if she herself to would Todhunter ranch of these 101 moth- on the animals) unclaimed did claim of these calves, except the two mothered as to erless at all -could-be drawn that if inference Victoria at Hightower and -cows con- by the Todhunter, against facts Mrs. these from roundup. jury merely particeps was left she that clusion it would be guilty Her with the defendant. criminis Mrs. Tod- draw its own conclusions. to crime, near the at or time him scene of not shield any, if would participation, commission, than four miles. Under its punishment. and prosecution ordered a state of facts we a reversal conclude, in our former as we did We discharge. a for his as to him with direction be- facts opinion, that the and withdrawn hand, we affirmed On the the con- other support to jury were sufficient fore the whom the facts more viction of the cousin draw jury chose to guilty, verdicts present nearly likened to defendant facts. permissible under such inferences standpoint ability from the of his to com- were doubt, the facts felt jurors, no mit charged. the crime upon him offer to enough to call strong present are other There facts in the evi- them, to counter evidence explanatory which, varying degree, sup- dence tend to to do exercise preferred not which he port the verdicts rendered. It un- would ac- privilege right and aof constitutional duly lengthen attempt to to just- Nevertheless, he cannot him. corded Enough them in recite full. has been drew inferences if the ly complain shown, think, we that demonstrate him the circumstanc- under unfavorable returned against verdicts defendant are not es. adequate without support in the evidence. (cid:127) strenuously argued It counsel The jury, evidence, from the very may White, of State case v. defendant well have félt that this ranch was the scene this' 19 P.2d decisive of 37 N.M. stealing of cattle on a scale rarely encoun- calls for reversal and remand one and tered, enough incriminating facts dis- discharge with a direction defendant. pin closed to responsibil- agree such is case. see We do We ity for the charged two larcenies There, facts. difference the oc- him. cupant the ranch on which the 'butchered It follows from what has been said that hide were discovered was her cow and rehearing the motion should be denied judgment conviction guilty found previous our order of affirmance here, There was sustained. against him should stand. him no one saw steal enough, the cow true her, facts strong but the butcher Is So Ordered. support a verdict he did so. enough ranch, cousin of the one
The owner' JJ., LUJAN, concur. COORS affirmed, we conviction was a co- whose Unfortunately State, for the COMPTON, JJ.,
defendant. dissent- McGHEE placed ing part. however, he could not be nearer the
247 in- recognized tained in law dictionaries part). McGHEE, (dissenting Justice custody dicate that con- the element of and admit, as I majority grudgingly ” ‘possession.’ trol is involved in the term opinion, the instruc- the error in read “possession or words containing the tion C.J.S., 28, seq., Control, P. et the 18 pointed sufficiently out to was control” considered, the words term “control” is and point for review preserve the judge trial equivalents synonyms listed therein as reversal save case-from here, but Custody, management, are: government, chambers in their cloistered by sitting in superintendence supervision. and concluding from the cold and Fe .Santa phrase “possession, The definition of harmless, in that it was error record .the custody, pertinent or control” was the verdict of the have affected not (cid:127)could Britton, 1909, App. People decision of v. 134 Clearly appraisal was not jury. 989, 933, where Div. 118 N.Y.S. case or he would judge who tried the (cid:127)of grand had convicted of defendants an old stock instruction like taken not have appeared larceny. phrase in the sec That he interlined “or control” before No. 7 penal under which con tion of the code did, risking he thus it as changed .and ruled that sought. viction was court .reversal. although the conviction should stand White, in State v. this Court stated As posses had not been in actual defendants 192, possession P.2d 19 1933, N.M. corporation. the stolen of a sion of funds presump crime to raise fruits of The court said : possessor guilt involves tion * * “* possession physical If control, dominion, with knowledge, ‘custody, or con- required, words power disposal, or voice power of meaningless, plainly those trol’ are possessor. alleged disposal, in synonymously used words necessarily does not “control” The word According the lexi- ‘possession.’ possession. Possession is include actual possession physical cographers, Possession, p. C.J.S., defined custody or One control. essential fact which can exist closest relation of ‘“the custody, care, may have corporeal thing person between of, may con- exercise guardianship * * full possesses it *. In its who over, physical is not in his what trol ‘possession’ connotes domina significance, president, by possession. * * * A bank vir- authority. supremacy of tion or custody office, may tue of his power of control and Possession involves money, control, the bank’s al- and control of and all the definitions con- Intent to control, pastures heifer passes through his in which the though none of *18 ”* * * grazed. range and bull calves coun- In hands. try of Mexico I believe it is com- New States, Similarly, Randazzo v. United monly accepted right where one has ap- Cir., defendants 1924, 300 F. eject others, belonging livestock robbery mail pealed conviction of person range has control of the animals charge, person in the lawful a bags from jury may grazing thereon. The well have the United States custody of control believed the mere fact defendant was the terms defining The court mail. charge the foreman of ranch and in sole control, custody” or stated: “charge, gave right thereof him the to turn the “ * * * indicated, the already As pastures, calves out of the Todhunter charge, or cus- control words ‘lawful fact this one was sufficient basis on statute, no tody,’ as used in which to find he was in “control” they are meaning; used technical calves, guilty and therefore a verdict of ordinary significance. plain and really directed instructions No. 7. here, used, when as ‘charge,’ The word possession, The evidence revolves around synonyms noun, has as one its barely and it sufficient to sustain the connote, ‘custody.’ Both words verdict under correct instructions. No con- well, control, though only but include as larceny possession viction for based on has require, the element of do heretofore been sustained this court on possession. The physical, or manual proof present quantum- of in this case. statute, ‘control,’ as used in this word possession that either or The statement con- word, in that it lacks slightly broader atmosphere in the hostile trol was sufficient physical implication possession. [*] [*] if» which the defendant was tried may well devastating on the have had a effect defend- “possession” and my view the terms case, question as there was no but that ant’s n “control” may synonymously not be used or pasture were in a of which he the calves respect sense with to de- in an alternate position foreman control in his had relationship between an ac- scribing the the ranch. subject larceny requisite cused and is, believe, high- as to control I presumption guilt. I The error believe raise a gist justified prejudicial, because the state’s ly in in- jury would have pos- these and similar facts is guilty case under ferring that the defendant would control, right or upon control. charged showing the de- session —not of the crime stated, of, I believe instruction right mere control to As above No. 7 had the fendant guilty. amounted to a directed verdict of grant-
Accordingly the defendant should he
aed new trial. majority
I concur in the remainder
(Opinion.
n COMPTON, J., concurs. *19 P.2d 929 v. GARCIA.
WERNER
No. 5539.
Supreme Court New Mexico.
May 27, 1953.