8 N.M. 92 | N.M. | 1895
The third instruction asked by defendant was properly refused by the court. If the only evidence of defendant’s guilt had consisted in proof that defendant had the opportunity to commit the crime, then it may be true that the burden would be upon the prosecution to show that such opportunity was sole and exclusive. But there was evidence in this case tending to show that the defendant gave the prosecutrix, Mrs. Baca, drugged wine; that the defendant, her sister Adela, and one Aragon were afterward seen together, several times during the day, going in and out of Baca’s house; that, when Mr. Baca came home, he found his wife lying on the bed insensible, defendant sitting on the bed by her side, and Aragon also in the room; that the key to the trunk from which the money and property were stolen was found where the defendant had been sitting; the defendant and Aragon then left the house together. Papers from the trunk lying on the floor attracted Baca’s attention. The loss of the money from the trunk was discovered, and in an hour or two Baca found the defendant with Aragon at the house of a neighbor; the defendant then admitting having given the wine to Mrs. Baca, and that she had got $1.25 from her as a loan. This loan Mrs. Baca denied having made. Baca, a policeman, and the defendant went to Adela’s house. The latter, upon being confronted, admitted that they had opened the trunk, when the defendant exclaimed to her: “What are you doing? Don’t give yourself up. Let them accuse us. They can get nothing out of us.” . A beaded belt, part of the missing property, was afterward recovered from Aragon, who has since disappeared. Adela was jointly indicted with the defendant, but defendant secured a severance. The defendant attempted to show that she was not at Baca’s house from 9 o’clock a. m. until evening, but in this she was flatly contradicted by several witnesses. Her testimony as to the circumstances under which she claimed to have borrowed the money tended to show- it to be false. Her attempt to show that Mrs. Baca was drunk from wine obtained later in the day was also opposed by other testimony. The saloon keeper who it was alleged sold the wine testified to only one sale; that was to Aragon, at about 7 a. m., before defendant visited Mrs. Baca, and not at 9 a. m., when she claimed Aragon got the wine the second time.
The alleged comment upon the evidence was not harmful and did not assume that the evidence established any fact, nor did it give undue prominence to any of the proof.
The assignment of error based upon the alleged variance as to ownership is not supported by the record. The court’s instruction was sustained by the evidence, and followed the very terms as to ownership laid in the indictment. There was no error in the record, and the judgment is affirmed.