Tomlinson v. Territory of New Mexico, 7 N.M. 195

Tomlinson v. Territory of New Mexico

7 N.M. 195 | N.M. | 1893

Lead Opinion

OPINION.

Fall, J.

The indictment on which defendant was convicted is as follows: “The grand jurors for the territory of New Mexico, taken from the body of the good and lawful men of the county of Eddy, aforesaid, duly elected, impaneled, sworn, and charged at the term aforesaid to inquire in and for the body of the county of Eddy aforesaid, upon their oaths do present that James A. Tomlinson, druggist, late of the county of Eddy, in the territory of New Mexico, on the tenth day of April, in the year of our Lord one thousand, eight hundred and ninety-two, at the county of Eddy aforesaid, and on divers other days between that day and the day of finding this indictment, unlawfully did sell and offer for sale to one E. S. Motter and to one E. H. Pierce, and to divers other persons whose names are to the said grand jurors unknown, divers spirituous, malt liquors, and wine, of quantities less than five gallons at the same time to the same person, to wit, one pint of beer, one pint of whisky, and one pint of wine, without having first obtained a license therefor in the manner provided by the laws of the territory of New Mexico, against the form of the statute in such case made and provided, and against the peace and dignity of the'territory of New Mexico.”

Defendant was arraigned and pleaded on the twenty-third of March, 1893, and on the next day he moved the court for a change of venue to some county outside of the Fifth judicial district, in which Eddy county is situated, upon the grounds of local prejudice against him in that county, and of prejudice in the mind of the judge of the district against defendant. The venue was accordingly changed to Chavez county, another county within the same district. On the thirtieth of March, in the court for Chavez county, defendant renewed his motion for a change of venue to-some county beyond the district, upon the ground of local prejudice in that county, and on account of the alleged prejudice of the judge, which motion was denied. Defendant then moved for a continuance, and his motion was denied. He then made a motion to quash the indictment, which was denied. Defendant was then, on the same day, tried, and a verdict of guilty rendered. Motions for a new trial and in arrest of judgment were made and denied, and defendant was sentenced to pay a fine of $500.

The prosecution proved on the trial a sale of liquoi to each of the persons named in the indictment, Motter and Pierce, and defendant attempted to defend upon the ground that the sales had been made by him as a druggist, upon prescriptions made, by him as a regular physician, this defense being founded upon section 15 of the statute, which provides “that nothing in this act shall be construed so as to tax druggists for selling liquors in quantities less than one quart when sold to fill a prescription made in writing (not printed) by a regular physician, and that a separate prescription shall be received and filed by the druggist for each sale made, not to be drank at the place of sale or upon the premises where sold.’’ The court excluded all evidence in support of this defense, holding that the druggist and physician referred to in the statute could not be the same person. After this, in rebuttal and against defendant’s objections, other persons were allowed to testify as to other sales of liquor by defendant.

After the affirmance of the judgment, defendant made a motion for a rehearing, on the following grounds: (1) Because the court has failed to consider the point made by appellant as to the admission of improper evidence against appellant. (2) Because the court has failed to consider the point' made by appellant as to the denial of his motion for a continuance. (3) Because the court has failed to look into a large number of the rulings and decisions of the court below- as to which error has been assigned by appellant. (4) Because the court has refused to consider the objections to the sufficiency of the indictment, and has put its refusal upon a ground not suggested in the briefs nor upon the argument, and as to which counsel have had no opportunity of being heard. (5) Because the court, in holding that good faith was no element of appellant’s defense, passes upon a question of fact as to which a jury alone is competent to decide, and which was excluded from the consideration of the jury in the court below. (6) Because two members of the court base the decision principally, and two other members entirely, upon the misconduct of counsel, which should have no effect upon the merits of the case.

„ * . . retf¡i,1!by°'cfí u¿Lñcmse:thiñdictment. I am of opinion that the judgment should be affirmed., While, under some of the authorities, the charge of the court might have been erroneous, in so far as stating that no druggist could defend by showing that he sold the liquor on his own prescription as a physician, still, under the evidence in this cause, good faith was no element of the defense. No e®014 was made to have the prosecution elect as which offense the defendant should be tried upon, except the motion to quash, which was properly overruled; the defendant having pleaded,-the plea not being withdrawn, and the venue having been changed. The record discloses beyond the peradventure of a doubt that the defendant was by a device seeking to evade the law; and, under the aggravating circumstances of the case, the fine of the full limit of the law was properly imposed.

dismissal of apFurther, the brief for defendant in this cause contains such an unwarranted attack upon the trial judge, his conduct, rulings, and instructions, as to amount to a scandalous and impertinent attack upon the judiciary of the territory and of this court, of which the nisi prius judge is a member, which would warrant us of our own motion in striking the brief and argument from the files, and affirming the decision without further investigation. It is proper for defendant to show errors, and apply law to the same; but to allow an attorney to come into this court, and criticise and question, comment upon, and condemn the motives which actuated the judge in his rulings below, would be to place the defendant above the law, and to subject the courts of this territory to wild tirades of abuse from any person of a malignant or depraved mind, — would be lowering the dignity of the bench, and subversive of good government. The judgment should be affirmed.

Seeds, J., concurs.

Concurrence Opinion

O’Brien, C. J., and Lee, J.

We concur in the foregoing conclusion, on the ground that the appeal should be dismissed on account of the unwarranted attack upon the official conduct of the trial judge in appellant’s printed brief.