17 N.M. 479 | N.M. | 1913
OPINION OF THE COURT.
Appellant was jointly indicted, with one Daniel Bullion, by the grand jury of Lincoln Countj', charged with making assault upon one William D. Wilson, with intent to rob and take from him, said Wilson, his money, goods, etc. The case was tried on the 20th day of May, and the jury returned a verdict, finding both, defendants guilty, as charged. A motion for a new trial was filed by the appellant, which was overruled bjr the court, and appellant was sentenced to the state penitentiary, for a term of not less than two, nor more than three years. From such judgment this appeal is prosecuted.
The principal contention urged by the appellant, in support of a reversal, is that the verdict of the jury was contrary to the evidence. It has been repeatedly held by the Territorial Supreme Court, that “ordinarily neither the verdict of a jury nor the finding of fact of a trial court will be disturbed in this court when they are supported by any substantial evidence;” Territory v. Sais, 15 N. M. 171; Territory v. Trapp, 16 N. M. 700. We have carefully read the record and find facts and circumstances in evidence from which the jury might properly have drawn the conclusion that the defendant was guilty; that he was acting in concert with his co-defendant, and therefore we cannot disturb the verdict. The insufficiency of the evidence was called to the attention of the trial court in the motion for a new trial. The lower court and the jury, heard the witnesses on the stand; were able to observe their appearance and demeanor while testifying,- and were thus enabled, more nearly to arrive at the truth than could the appellate court, by reading the record. If the trial judge entertained a reasonable doubt as to the guilt of the defendant, he should, and doubtless would have granted him a new trial. The verdict is supported by substantial evidence, and we cannot, therefore, set it aside.
“It has been repeatedly held by this court that when a party complains of an alleged erroneous decision of the court trying the cause, either in the exclusion or admission of evidence, he must point out in his motion for a new trial with reasonable certainty the particular evidence admitted or excluded; otherwise the court below need not, and this court will not, consider such alleged erroneous decision.” See Territory v. Anderson, 4 N. M., 213; Mogollon Gold Copper Co. v. Stout, 14 N. M. 245.
Finding no available error in the record the judgment-of the lower court is affirmed, and it is so ordered.