17 N.M. 62 | N.M. | 1912
OPINION OP THE COURT.
It is assigned as error that the indictment is bad for duplicity. This indictment was drawn under Sec. 79 of the Compiled Laws of 1897, which makes it a felony for any person to “steal, embezzle, or knowingly kill, sell, drive, lead or ride awa}», or i.n any manner deprive the owner of the immediate possession of any neat cattle, horse, mule, sheep, goat, swine or ass.”
Bishop’s New Crim. Pro., Yol. 1 (Fourth Ed.) Sec. 434.
The territorial Supreme Court passed upon this question in the case of Territory vs. Eaton, 13 N. M. 80, in which case the' indictment was approved, the same being similar in form to the one here questioned, and both indictments were based upon the same statute.
We are of the opinion that an indictment based upon a statute, making punishable the doing of one thing or another, may allege in a single count that the defendant did as many of the forbidden things as the pleader elects to specify, provided that the conjunction "and” is used where the statute has "or,” and such count will not be double and may be established at the trial by proof of any one of them.
Bishop’s New Criminal Pro., Vol. 1, Sec. 436.
Territory v. McGrath, 114 Pac. 364 (N. Mex). 16 N. M. 202.
The second error, assigned on behalf of appellant is that the Court erred in failing to sustain defendant’s motion to require the plaintiff to elect upon which crime in the indictment it would go to trial. In view of our holding that no duplicity exists, as contended in the first assignment of error, there is no merit in this assignment of'error.
We are clearly of the opinion that where the original taking of the thing, upon which the charge of larceny is predicated, was at a place without the jurisdiction of the trial court, but within the state, and the thing was brought into the county within its jurisdiction, the intent to seal continuing, the thief carrying away the goods becomes guilty of a complete larceny in every county or locality into which he takes them while his intent to steal continues.
Bishop’s New Crim. Law, Vol. 2, Sec. 839.
Bishop’s New Crim. Pro. Vol. 1, Sec. 59.
It is argued on behalf of appellant that the ownership of the cattle was not sufficiently or legally proven.
Chaves v. Territory, 6 N. M. 455.
An examination of the record in this case discloses that the owner of the cattle testified that .he owned four cows and one steer, describing them in detail as to color, spots,, lack of horns, etc. Other witnesses described the cattle in a similar manner, all clearly showing that the cattle were identified not only by the unrecorded brand, but also by the description as to.color, condition of horns and peculiar marking of the animals. -It has been held by the Territorial Court that evidence of this kind is admissible for such purpose.
Territory v. Valles, 15 N. M. 230.
It is lastly urged on behalf of appellant that the Court erred in admitting the conversation between D. L. Harrington, a brother of appellant, and the owner of the cattle. In this conversation it appeared that the brother of the defendant offered to the owner of the cattle, six and then seven head of cattle to drop the prosecution against defendant, and it is contended on behalf of appellant that this was incompetent because it was not shown that the defendant heard and understood the conversation. We are of the opinion, however, that where a person is present at a conversation but takes no part in it, all that can possibly be shown to connect the latter with the conversation is that he was present and near enough to hear and understand what was said, and that was the condition in this case. It is true, as stated in appellant's brief, that the Court below excluded this conversation when it was first offered, and admitted it only when it was shown that the defendant was so close by that he could not have avoided hearing what was said and knowing part of the conversation, although it was in part carried on in Spanish through an interpreter. The witness, Fred Howard, testified that he acted as an interpreter, and talked to defendant's brother in English and to the-owner of the cattle “in Mexican;'' that defendant was just, outside the door of the house walking to and fro, and that, he got away from the others as he was walking only about four or five feet. Other evidence of a similar character is. found upon examination of the record, and it appears that this conversation was admitted because the defendant was so close at hand that he must have known what was being said.
• The record discloses that the statements of the brother-of defendant were made to the interpreter in English, therefore the proposition which was the topic of the conversation, the admission of which is complained of, must have' been understood by the defendant. In a matter of this importance we believe that the presence and silence of the defendant will justify the admission of the evidence-referred to, and cures the same of the objection urged. 'The vital part of this conversation was the proposition made by the brother of the defendant, in English, and in our opinion it is of little consequence or materiality whether or not the proposition was accepted or rejected, therefore, the objection to the admission of that portion of the ■conversation which was in Spanish, translated by the interpreter could not be prejudicial to the rights of defendant.
There is no error in the judgment complained of and the same is therefore affirmed, and it is so ordered.