No. 946 | N.M. | Jan 6, 1904
The defendant in this case was indicted in the district court of San Miguel county, May 27, 1901, for stealing and killing three head of neat- cattle, the property of the Red River Valley Company, of the value of twenty-five dollars each. Demurrer to indictment was filed and overruled. Trial by jury was had, which resulted in a verdict of guilty. Motions for a new trial and in arrest of judgment were overruled, and an appeal was prayed for and allowed to this court.
A complete answer to the contention of the appellant that the indictment does not state that on the tenth day of December, 1900, the property claimed to have been stolen was the property of the Red River Valley Company is to quote the language of the indictment (omitting the formal parts) : “. . . Do present that Simon Garcia, late of the county of San Miguel, Territory of New Mexico, on the tenth day of December, in the year of our Lord one thousand nine hundred, at the county of San Miguel aforesaid, three head of neat cattle, of the value of twenty-five dollars each, of the property of the Red River Valley Company, unlawfully and feloniously did take, steal and knowingly kill, contrary to the form of the statute, etc. . . .”
Appellant’s objections to instructions 1 and 2 may be considered together. It is contended that these instructions do not fully and completely state the crime charged. From a careful reading of instructions 1 and 2, together with the instruction requested by the Territory and given, it will be observed that the jury were instructed that the essential elements to be proven by the Territory were, that the defendant did unlawfully and feloniously take and steal and knowingly kill three head of neat cattle, or any one of said cattle, being the property. of the Red River Valley Company on the tenth day of December, 1900, in San Miguel county, Territory of New Mexico, and that if the jury so found, they should find the defendant guilty. These are all the essential elements of the crime as provided by section 79 of the compiled laws of 1897, which section reads as follows: “Any person who shall steal ... or knowingly kill . . . any neat cattle the property of another, shall be punished . . .”
The objection to instruction No. 7, given by the court, is not without some weight; nor does this court approve of this instruction. However, this instruction has been upheld by the Supreme Court of the United States in Reagan v. United States, 157 U. S. 304, and in Hicks v. United States, 150 U. S. 450. We are not unmindful, however, that the Federal courts in the States are permitted to comment npon the testimony. This instruction is also upheld in State v. Jones, 78 Mo. 280 and in Solander v. People, 2 Colo. 48" date_filed="1873-02-15" court="Colo." case_name="Solander v. People">2 Colo. 48. We are of the opinion that this instruction is not so erroneous as to warrant a reversal of the case.
The objection of appellant to the eighth instruction, given by the court, is not tenable. This instrucion is a fair and careful one, guarding the interest of the defendant. It reads as follows: “The court instructs you that, you are the sole judges of the weight of the evidence and of the credibility of the witnesses, and if you believe from the evidence that any witness has willfully sworn falsely as to any material fact in this case, you may, unless the same is corroborated by other credible evidence, or facts and circumstances in evidence, disregard the whole or any part of the testimony of such witness, and in passing on the credibility of any witness, or the weight to be given to his testimony, you may consider his manner and conduct upon the stand, his means of knowledge, the relationship of the parties, if any, and the interest that he may have in the result of the case.”
Appellant also objects to the last paragraph of instruction 9, whereby the jury are instructed that “if they should entertain a reasonable doubt of the defendant’s guilt, he should be acquitted, although the jury might not be able to find that the alibi was fully proven.” The language here employed certainly tells the jury that if the evidence on the subject of an alibi raises any reasonable doubt in their minds as to the defendant’s guilt, he should be acquitted. Instructions to this effect have been given and ratified in almost every jurisdiction.
Appellant assigns as error the language employed in instruction No. 10. This instruction standing alone would certainly be prejudicial to the defendant. However, instructions 8 and 10 when taken together would seem to simply state to the jury that they are the judges of the credibility of the witnesses and if they believe that any witness has sworn falsely or that the testimony of any witness is inconsistent with other testimony which the jury believe to be true or consistent with the circumstances proven on the trial, then the testimony of one credible witness would be of more value than the evidence of such other witnesses. The term used by the learned judge, “credible,” could mean nothing more than such witnesses as the jury gave credit for telling the truth, and is used in the abstract, without reference to any particular witness who testified in the case.
Appellant assigns as error the giving of an instruction requested by the Territory, for the reason that it was given untimely, that is, after the arguments of counsel and submission of the case. Whatever might be said concerning this position, this record nowhere discloses the facts contended for by appellant, and the objection will therefore not be considered by this court.
We have carefully read the objections to' the admissibility and rejections of testimony on the trial of the case, as well as all other assignments of error, and we are of the opinion that there is nothing reversible. It is not the duty of an appellate court to hunt for technicalities whereby criminals can escape punishment. The record discloses the fact of the defendant’s guilt and he should pay the penalty.
The judgment of the district court is affirmed.