14 N.M. 535 | N.M. | 1908
OPINION OP THE COURT.
This is an appeal in a criminal case where the defendants were charged with the larceny of one bead of neat cattle, a calf, as shown by the evidence. An examination of the record discloses that the verdict of guilty returned by the jury was not secured for the lack of a defense, for the defendants-were represented by able lawyers, who used every means to clear them of the crime which it is alleged by the indictment they committed, and for which they were subsequently found guilty by the jury, and sentenced to the penitentiary by the court.
On the hearing before us some of the errors assigned were not argued, but we will consider them all as counsel stated that none were waived.
1. The first alleged error is that there is no evidence in the case to support the verdict of the jury, in that the transcript shows that there was no evidence establishing the fact that there was ever any crime committed.
It is testified to by one Manuel Aragon that on September, 6th, 1906, he saw two men driving a bunch of cattle, mostly calves, consisting of some fourteen or sixteen head near the head of the Encinosa; that his attention was first attracted to them by the bellowing of the calves; that he rode towards them, and that as he did so. one of the men turned, loaded his pistol and held it in front of him, and asked him what he was doing there. After some conversation, the man with the pistol said that they were throwing the calves down on the Yesso. This witness identified the man with whom he talked as the defendant Lee Caldwell. This witness also testified without objection that the reason the calves were, bawling was because they had been separated from their mothers that day.
The witness Collier testified that on 'October 3rd, 1906, he visited the Caldwell ranch and found in that vicinity a number of freshly branded calves, without their mothers, which Lee Caldwell said belonged to him and his brother, and which were branded in their brand. Afterwards, the mother of the calf in question was found and it was the cow of Casaus y Benavides.
A considerable amount of evidence was introduced on the trial, the defendants claiming that they did not know how the calves came to be branded with their brand, and thus prima facie their property, but there was ample evidence that a crime had been committed, and it was proper for the court to submit the case to the jury for their determination as to whether or not the defendants were the guilty parties. If the stealing of a calf by wrongfully branding it could only be proved by a confession or by eyewitnesses to the illegal branding, then the running of herds on the open range of this territory would soon be a thing of the past, for as a rule persons do not illegally brand calves in the presence of witnesses any more than they commit crimes such as burglary or larceny in the presence of witnesses.
2. Appellants also claim that there was a material variance between the allegations of the indictment and proof, as to the name of the owner of the calf alleged to have been stolen.
3. Another alleged error is that the court erred in giving instruction No. 5-|-, which reads as follows, to-wit:— “The possession of recently stolen property if unexplained, is a circumstance to be taken into consideration by the jury, the same as any other fact or circumstance in the' case, and given such weight as the jury may deem it entitled to, and if in this ease you belieVe from the evidence beyond a reasonable .doubt that the defendants, or some of them, were in possession of the property stolen, if it was stolen, then you may take that fact or circumstance into consideration and give it such weight as in your mind it is entitled to.”
4. The error complained of by the appellants and numbered four, is to all intents and purposes the same as the assignment which we have disposed of above as number one, and we will not therefore again consider it.
Venue is of course one of the material averments charged in an indictment, and must be proven to the satisfaction of the jury, before they will be justified in returning a verdict of guilty against an acccused. In this very instruction, the court charges the jury that they must “believe from the evidence beyond'a reasonable doubt. that the offense was committed........and that it was committed in Guadalupe County.” The entire instruction must be read together. Territory v. Livingston, 84 Pac. 1021. Even if the words “beyond a reasonable doubt,” had not appeared in this particular instruction, still the instruction would not have been bad, for in instruction No. 4, the court specially instructed the jury that they must find from the evidence and beyond a reasonable doubt, that the crime charged was committed in the county, of Guadalupe, Territory of New Mexico. The law is that the general instruction upon reasonable doubt which is usually given need not be repeated in each instruction which relates to the elements of the crime or the facts in the case. State v. Cross, 68 Iowa 180; State v. Hennesy, 55 Iowa 299; State v. Murdy, 81 Iowa 603; 1 Blashfield on Instructions to Juries, page 647.
6. The next error assigned is that the court committed error in failing to instruct the jury fully and correctly upon the law applicable to the case.
This contention-of the appellant’s is based on the fact that no instruction was given by the court concerning the law on the impeachment of witnesses, appellants now claiming that evidence was introduced impeaching the testimony of the witness Degraftenreid. The evidence introduced which sought to impeach the evidence of Degraftenreid, so far as we have been able to find it, is of the most flimsy character, nor is any pointed out in the briefs filed by counsel in. this case which impeaches the witness Degraftenreid.
An examination of the record in this case shows that the learned counsel did not ask the court to give any instruction on the subject of impeachment, and consequently, even if such instruction should have been given, which we do not think was necessary, they have lost all right to object to it now.
7. The seventh and eighth assignments of error we will consider together, as they relate to the same subject matter. The seventh assignment' is that the court committed error in giving instruction No. 6£, which reads: “You are instructed that proof of other crimes is not to be taken and considered by you as evidence of the crime charged in the indictment, but proof of similar crimes committed at the same time and committed with the crime charged in the indictment, and so connected therewith that one cannot be shown without showing the other, if you find a crime was committed, such evidence is admissible, although it may incidentally prove, or tend to prove, some crime not charged in the indictment; and evidence of similar crimes committed about the same time is also evidence which is admissible as proof of the intern of the parties charged therewith and of the guilty knowledge of such parties.” And exception No. 8 is that the court erred in admitting the evidence of certain witnesses to the effect that other calves and cattle were seen and found near or with the particular calf alleged to have been stolen.
There is no error in the judgment complained of, and the same is therefore affirmed; and it is so ordered.