15 N.M. 92 | N.M. | 1909
OPINION OF THE COURT.'
The defendant was convicted at the May, 1908, term of the District Court of Taos Count]'', on an indictment charging: “That Malaquias Cortez and Gregorio Garcia, late of the County of Taos, Territory of New Mexico, on the 23rd day of June, in the year of our Lord one thousand nine hundred and four, at the County of Taos, aforesaid, did unlawfully and feloniously kill one yearling steer of the property of C. L. Craig, the said steer being black in color and without brand, of the value of fifteen dollars; contrary to the form of the statute in such case made and provided and against the peace -and dignity of the Territory of New Mexico.”
This indictment was undoubtedly attempted to be drawn under Sec. *79 of the Compiled Laws of 1897, which provides that, “any person who shall steal, embezzle or knowingly kill, sell, drive, lead or ride away, or in any manner deprive the owner of the immediate possession of any neat cattle, etc., shall be deemed guilty of a felony,” etc.
It will be observed that the indictment does not use the terms, steal or embezzle, but that the charge is confined to unlawfully and feloniously killing the animal in question. This section of the statute, (Sec. 79 C. L. 1897) was held, in Wilburn v. The Territory, 10 N. M. 402, 62 Pac. 968, to be a statutory crime of a special nature and for the purpose of .reaching a specific class of offences not contemplated in the general laws relating to larceny. It enumerates three distinct crimes, viz: 1st, Stealing of animals; 2nd, Embezzlement of animals, and 3rd, Knowingly killing or otherwise depriving the owners of animals of their immediate possession.
The language of the Supreme Court of Alabama in the last named case, with reference to the point under discussion, seems equally applicable to the case at bar. It is as follows:
“We are of the opinion however, that the indictment is defective in another respect. It fails to charge that the defendant knowingly committed the act for which he is criminally indicted. The statute is highly penal in its character, and creates a new crime unknown to the common law. See. 5, Laws 1878 and 79, p. 226, makes knowledge of the facts essential to the crime, deeming him alone guilty ‘who knowingly violates amr of the provisions5 of fhe act. The general -rule of pleading is that every indictment, information or other criminal proceeding ought fo contain all that is material to constitute the' crime, or every necessary ingredient of the offense, stated with precision, or at least certahfi}', and in the customary forms of iaw. 3 Grennel Ev., sec. 10; Beasley v. State, 18 Ala. 535."
Briefs of counsel in this case discuss matters relative to the introduction of evidence, which, under the view-we take of this case, it is unnecessary to decide. The judgment of the lower court is reversed and the cause remanded for further, proceedings, in accordance with, the views herein expressed.