15 N.M. 240 | N.M. | 1910
OPINION OF THE COURT.
The defendants in this case together with one Elisha Leslie, were jointly indicted in the District Court of Lincoln County, charged with having committed the statutory crime of the larceny of six head of cattle of the property of El Capitan Land and Cattle Company of New Mexico. The defendants took a change of venue to the County of Otero. The Territory nolUd the indictment as to Elisha Leslie, and on the second trial of the case the jury returned a verdict of guilty against the appellants herein, who after a motion for a new trial had been overruled, were sentenced to serve a term of imprisonment in the territorial penitentiary at Santa Ee, and thereupon appealed to this court.
In their brief counsel for appellants argue eight alleged errors, which we will now consider.
Appellants claim that the court committed error in submitting to the jury instruction No. 3, as to the law of conspiracy.
It has been decided by this court in the case of Territory v. Claypool, et al., 11 N. M. 568, that it is' reversible error for a trial court to give an instruction as to conspiracy, unless there is evidence before the jury to warrant such instruction, and in the same case basing our opinion on Bishop’s New Criminal Law, we have defined conspiracy to be “a confederating of two or more persons to accomplish some unlawful purpose, or a lawful purpose by some unlawful means.” Bearing in mind the ruling of this court and the definition of conspiracy as above set out, we will proceed to examine the record to ascertain whether there is evidence which justified the court in giving this instruction.
Another alleged error relied upon by the appellants is that the court committed error in admitting the certificate of brand introduced by the Territory, in that the same showed a variance between the name set out in the indictment as the owner of the cattle, to-wit, El Capitan Land and Cattle Company of New Mexico, while the certificate of brand introduced in evidence was that of El Capitan Land and Cattle Company of Richardson, County of Lincoln, Territory of New Mexico.
It is true that there is a discrepancy in the name of the company set up in the indictment as being the owner of the cattle and that mentioned in the certificate of brand, in that the certificate has in it the words “O'f Richardson, County of Lincoln, and Territory” which words are not in the indictment. There is no evidence before the court of there being any other corporation in New Mexico named El Capitan Land and Cattle Company, than the one which owned the cattle involved in this case. It seems to us that in any event the words in the certificate which are not in'the indictment are unnecessary and are surplusage, setting out as they obviously do the place of business of the company which claims the cattle branded in the Block brand. In the case at bar it is not pretended that the cattle alleged to have been unlawfully killed were not the property of the owner alleged in the indictment. The witnesses Littleton, Scott and Byfield identify what is known as the Block brand, as the brand run by El Capitan Land and Cattle Company, described the brand and declared that the certificate represented the manner in which the cattle of that company were branded, and the half hides found at the Leslie ranch are described as having on them the Block brand as shown by the certificate of the Cattle Sanitary Board.
To reverse this case on the ground of a variance between the proofs offered in evidence and the certificate of the Sanitary Board, as set out above, would be extremely technical, and we would hesitate to do so. We are not, however, compelled to do it, as the defendants themselves identify the cattle as the property of El Capitan. Land and Cattle Co. Robert Leslie, Sr., testifies that his son Elisha killed Block cattle at his ranch by authority of Tom Pridemore, general manager of the Block Cattle Company, which was El Capitan Land and Cattle Co., (Record, pp. 179-181), and the younger Leslie testifies that Block cattle were killed by himself and brother by authority of the same person. (Record pp. 251-2).
We can see no error in admitting evidence as to hogs eating beef at the Leslie ranch.
Appellants claim that the court committed error in giving a part of instruction No. 12. The portion of the instruction to which they object reads as follows, to-wit: '“Yet you have no right to reject the testimony of any witness without good reason and should not so do until you find it irreconcilable with other testimony which you find to be true.”
An examination of the record in this ease discloses that no specific exceptions were taken to the charge of the court, nor was any error complained of asked to be corrected. At the end of the instruction 12 given by the court appear the words “Exceptions, Wharton and Lawson, attorneys for defendants.” In view of the large number of cases cited in 12 Cyc. 668, note 14, and the decisions of this court, and the express law of the Territory, section 37 of chapter 57, of the Laws of 1907, we will not further consider the alleged error of the court in giving that part of instruction. No. 12, which is complained of. Exceptions to instructions were not intended to give loop holes for defendants who are guilty to escape punishment, but were designed to enable counsel to point out possible errors made by the trial courts, so that they might be corrected, and a just and proper verdict returned by the jury. Exceptions taken generally to the instructions of the court, as in the case at bar, point out nothing to and do not assist -the court in correctly instructing the jury, but instead, if permitted, are -a bar to the administration of justice, and reversals which rest upon such grounds tend to bring the administration of justice into disrepute.
We have carefully examined the other alleged errors, and see nothing in them to warrant the further attention of this court. The instructions asked for which were not given, are covered by those given by the court. The case seems to have been fairly tried- .and properly decided by the jury, and as there does not appear to be any reversible error in the case, the same is therefore affirmed, and it is so ordered.