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B. CRIMINAL LAW - REVIEW – INDICTMENT been overruled, judgment was rendered on SUFFICIENCY_OBJECTIONS.

the verdict, and the defendant was sentenced The sufficiency of an indictment will not be considered, where the objection was not raised

to pay to the territory a fine of $50 and by demurrer or by motions to quash or in arrest.

costs, and to stand committed until fine and [Ed. Note.-For cases in point, see Cent. Dig. costs were paid. A motion in arrest of vol. 15, Criminal Law, § 2027.)

judgment was filed and overruled, and the 9. SAME-DENIAL OF NEW TRIAL-ASSIGN- defendant has brought the cause to this MENT OF ERROR.

court by appeal. The overruling of a motion for a new trial in a criminal case, not assigned as error on Gatewood & Dunn, for appellant. W. C. appeal, is not before the court on appeal. Reid, Atty. Gen., for the Territory.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2934.]

McFIE, J. (after stating the facts as above).

The indictment is based upon the violation of Appeal from District Court, Chavez Coun.

section 3, c. 3, p. 19, Laws 1901, which is as ty; before Justice W. H. Pope.

follows: "Section 3. It shall be unlawful for Joshua P. Church was convicted of per

the proprietor, keeper or manager of any samitting a minor to gamble in his saloon, and

loon where intoxicating liquor is kept or offerhe appeals. Affirmed.

ed for sale, or where gambling in any form is On the 12th day of November, 1903, the carried on or permitted, to permit any minor defendant was indicted, and the body of the under the age of twenty-one years or any puindictment is as follows: "That Joshua P.

pil in any school or educational institution, to Church, late of the county of Chavez, in the loiter upon or frequent the premises belonging territory of New Mexico, on the 25th day of to such saloon, or to engage in games or October, in the year of our Lord one thou

amusements of any kind thereon." Section 7 sand nine hundred and three, at the county of the same chapter is also pertinent, and proof Chavez, aforesaid, in said territory of

vides that: “The word 'person' as used in New Mexico, being then and there proprietor, this act, shall be deemed to mean firm or keeper and manager of a certain saloon there

corporation, as well as natural person, and situate where intoxicating liquor is kept and the person managing the business of such offered for sale and where gambling is car- firm or corporation shall be liable to the penried on and permitted, unlawfully and know- alties prescribed by this act. And the proingly allow and permit one Guy C. Clements, prietor or owner of any of the establishments a minor under the age of twenty-one years mentioned in this act shall be liable to the and a pupil of a school and educational in

penalties prescribed by this act for any vistitution, to wit, The New Mexico Military olation of its provisions within or at their Institute, to be and loiter upon and frequent establishments, whether committed by themthe premises belonging to said saloon and en- selves or by persons in their employ." gage in games and amusements thereon, con- Numerous assignments of error appear in trary to the form of the statute in such case the record; but, inasmuch as more than one made and provided and against the peace of them raise the same question in a differand dignity of the territory of New Mexico."

ent form, it will not be necessary for us to The record in this case discloses very few consider each of them separately. The first facts, but those disclosed, together with the assignment of error is that the court erred admission of the defendant, seem sufficient in overruling the defendant's motion in arfor a proper understanding and disposition rest of judgment. The indictment in this of the case. The substance of the proof was case omitted to insert the word "did" in the that Guy C. Clements, Clarence Clements, charging part before the words "unlawfully Reid Curtis, and one McCracken were in the and knowingly allow and permit one Guy C. Oriental Saloon, at Roswell, some time dur- Clements, a minor and student of the New ing September, October, or November, 1903, Mexico Military Institute, to be and loiter and while there Guy C. Clements engaged in upon and frequent the premises belonging playing the roulette wheel, while the others to such saloon, and to engage in games and watched the play; that Guy C. Clements and amusements thereon," etc. No demurrer or his brother Clarence were in that saloon motion to quash was filed attacking the sufmore than once; that all of these boys were ficiency of the indictment; but, after trial minors and students of the New Mexico Mili- and judgment, a motion in arrest of judg. tary Institute; that they were not molested ment was interposed, based upon this omisor put out of the saloon at any time; that sion, as a fatal defect in the indictment. a man by the name of O'Conner was operat- The court below overruled the motion, and. ing the roulette wheel in the saloon, and, so as counsel for the defendant contends, comfar as the testimony shows, the defendant mitted error in so doing. The omission of was not in the saloon at the time these boys the word "did," in the cbarging part of an were there. The defendant, however, ad- indictment for a felony, has been held fatal mits upon the record that he was the owner in the state of Texas, and in some other juand manager of the Oriental Saloon in the risdictions; but in misdemeanors, where a fall of 1903. Upon a trial before a jury, the more liberal rule of pleading prevails, such defendant was found guilty as charged in the an omission, appearing to be purely clerical, indictment. Motion for a new trial having is not deemed fatal, and, if desirable for

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completeness of statement, will be supplied that the court did not err in overruling the
by intendment. In State v. Edwards, 19 Mo. motion in arrest of judgment.
675, the court said: "The omission in this In the second, third, fourth, and fifth as-
indictment consists of the neglect to insert signments, it is charged that the court com-
the word 'did' before the words 'assault, beat mitted error in excluding testimony offered
and maltreat one Stephen L. Page, in the in behalf of the defendant to the effect that
peace then and there being and other the defendant had forbidden minors to loiter
wrongs,' etc., so as to make the sentence in his saloon premises: that he had instruct-
read thus: ‘With force and violence, in a ed his employés not to allow minors to loiter
turbulent and violent manner, "didl" assault, about his saloon, and has so instructed
beat and maltreat,' etc. We are inclined to O'Conner, who was in charge of the roulette
think that this word 'did' may, in this in- wheel at the time Guy C. Clements was in the
dictment, be supplied by intendment. In in- saloon. The contention of the defendant is
dictments for misdemeanors merely, such in- that his good faith evidenced by such instruc-
tendment is often resorted to. The strict- tions to minors and employés constitutes a
ness and rigor in construction of indictments good defense. The court below excluded this
for felonies are not applied uniformly to in- testimony as immaterial, on the ground that
dictments for mere misdemeanors. In the the same would not constitute a defense.
case of State v. IIalder, 2 McCord (s. C.) 377, In Carroll v. State, 63 Md. 531, 3 Atl. 29,
13 Am. Dec. 738, the omission to insert the the court said: “The fact that he (saloon-
word "did before the words 'feloniously ut- keeper) has given orders not to sell to minors
ter and publish, dispose and pass' was held only shows a bona fide intent to obey the
fatal, and the judgment was arrested. This law, which all the authorities say is im-
indictment was for a felony. In the case of material in determining guilt." In McCut-
the State v. Whitney, 15 Vt. 298, which was cheon v. People, 69 Ill. 601, the court said:
an indictment for a misdemeanor, selling liq- “Where, in the absence of a saloonkeeper, a
uor by the small measure, without license, sale of liquor is made by his bartender, the
the word 'did' was omitted, which should directions of the former not to sell to minors
have been joined with the words 'sell and will not exempt him from liability for the
dispose of.' This omission was hield not to sale." Soyler v. State, 17 Ark. 110, 11 S.
be fatal on motion in arrest of judgment. W. 473; Waller v. State, 38 Ark. 656; Loeb)
Bennet, J., in delivering the opinion of the v. Georgia, 75 Ga. 278; Riley v. State, 13

court, said: 'In this indictment, it is al- Miss. 397; Dudley v. Sautbine, 49 Iowa, 650,
leged that the respondent, on the 1st day of 31 Am. Rep. 165; Mugler v. Kansas, 128 U.
August, A. D. 1812, at, etc.. sell and dispose S. (23. 8 Sup. Ct. 273, 31 L. Ed. 205. The in-
of, etc. It is evident that the omission is structions of the defendant, tending to show
purely a clerical one. The auxiliary verb his good faith, did not constitute a defense,
inay be supplied by intendment.'" People and the court properly excluded this testi-
v. Duford, 66 Mich. 91, 33 X. W. 29; Shay v. mony.
People, 22 X. Y. 317.

The second, third, fourth, fifth, and sixtli The omission from the indi'tment in the assignments of error are made the basis of present (ase is so obviously clerical that it

contention by defendant's counsel, as stated cannot reasonably be said that the defendant in his brief, that "the principal is not liable W:s misled or prejudiced in pleading to the under the statute for the act of his employé, indictment and going to trial, and it is too munless he had knowledge of such act; nor late, in a case of misdemeanor, for the de is he liable if the act is committed by the fendant to raise this question for the first employé against the order of the principal time by motion in arrest of judgment. In and without his knowledge." This would the case of People v. Duford, 66 Mich. .00, 3:3 (loubtless be a correct statement of the law N. W. 28, the court said: "If the word 'id' under a statute which made the intention to had been used in the place of 'was,' after commit an essential ingredient of the crime. ' ',

" the

or owner of any of the establishments menupon the respondent. This mistake, we think, tioned in this act shall be liable to the penalshould be regarded as clerical and formal, ties prescribed by this act for any violation and one which did not mislead, or result to of its provisions within or at their estal)the respondent's prejudice. Especially should lishments, whether committed by themselves this be so held in view of the fact that the or by persons in their employ." It is clear

. complaint upon which he was arrested con- from this provision of the statute that intained the charge correctly stated. If the tent to commit is not made an essential elerespondent desired to take advantage of the ment of the crime, nor is it provided that it defect relieil upon, he should have demurred shall be knowingly done. The indictment or moved to quaslı." Is to whether the in this case uses the word "knowingly," but, Omission of the word "lid," as in the indict- as the statute does not require it, it must ment in this case, would be fatal or not, we be treated as surplusage. In the case of do not deride; but, as the charse is a mis- Carroll v. State, supra, the Supreme ('ourt demeanor only, and the punishment assessed of Maryland said: "If intent is not an ina fiue of $30 and costs, we are of opinion gredient in the offense, it logically follows

the word 'situate.? and before willfully it Our statute provides that the proprietor

that it must be immaterial whether such or- and a violation of law. It is no defense ders are given or not, for he who does by that the defendant bad no intention to vioanother that which he cannot lawfully do in late the law. 'Good intentions' are said by person must be responsible for the agent's the proverb to be the pavement of another acts. In fact, it is his act. It cannot be place, but they are not a sound one for a that by setting another to do his work, and barroom. The law has been violated. It occupying himself elsewhere or otherwise, looks to the man it intrusted with the manle can reap the benefit of his agent's sales, agement of this business, and holds him liaand escape the consequences of his agent's ble. It is immaterial whether his liability is conduct. It would be impossible effectually based upon his negligence in permitting the to enforce a statute of this kind if that were sale, or upon the principle of agency, or upon allowed, and it would speedily become a dead both, for the defendant is liable for a negliletter." This language was used by the court gent sale from insufficient supervision of an in a case wliere the charge was selling liquor agent, as much as if he had ordered the sale. to minors, but we see no difference in the If the clerk, as Judge Cooley says, supra, beprinciple involved. Our statute specifically ing in possession of the keys, opened the saprovides that the act of the employé shall be loon on Sunday for traffic, the licensee could the act of the proprietor or owner of saloons not excuse himself from liability by his abwhere liquors are sold or gambling is per- sence or ignorance; nor can be do so in the mitted, and it is the proprietor or owner who present case of a sale to the minor by being is declared liable both for his own and his temporarily absent from the room. The deemployés' acts and negligence. The evidence fendant chose to seek for and assume the showed that Guy C. Clements, a minor, was liabilities of the calling of a saloonkeeper in the saloon of the defendant for about 30 that he might enjoy its profits. He cannot be minutes on one occasion, and while there he allowed to enjoy its profits and assign its participated in gambling which was being duties and liabilities to another.” In the case carried on in the saloon; and the evidence of People v. Roby, 52 Vich. 577, 18 N. W. 365, shows, also, that this minor was in the saloon 50 An. Rep. 270, the conviction of the owner of the deferdant on more than one occasion, was sustained where his clerk, in cleaning and other minors and students were also in out his saloon on Sunday, sold a drink of liqthe saloon at the same times. There is no uor without the knowledge or consent of the evidence in the record disclosing any effort

In deciding that case, Chief Justice to prevent these minors from entering the Cooley said: “As a rule, there can be no place, nor to prevent them from remaining crime without a criminal intent, but this is there after they had entered. It was proven, by no means a universal rule. One may be therefore, that Guy C. Clements, both a minor guilty of the high crime of manslaughter, and a student of the New Mexico Military when his only fault is gross negligence, and Institute, did frequent and loiter in the saloon there are many other cases where mere negof the defendant, which was also proven to lect may be highly criminal. Many statutes be a place where intoxicating liquors were which are in the nature of police regulations, kept and offered for sale, and where gambling as is this, impose criminal penalties irrespecwas carried on.

tive of any intent to violate them; the purWhen this defendant procured a license to pose being to require a degree of diligence conduct that saloon, he obligated himself to for the protection of the public which shall conduct it in obedience to law, and one of render violation impossible." These observathe existing requirements of law was that tions are deemed equally applicable to the minors and students should not be permitted | present case, as our statute may be properly to loiter upon or frequent the defendant's sa- designated a police regulation also. In State loon premises. The defendant was under ob- v. Privett, 49 N. C. 100, the court instructed ligation to see that this law was obeyed, and, the jury to the effect "that, if the principal if he chose to leave others in charge of his instructed his clerk not to sell, he would not saloon, he is liable for their failure to do be liable for the sale by the clerk, unless what the law requires. This question is ful- such instruction had been abrogated expressly considered and a long line of authorities ly or by a course of conduct which would examined by the court in the case of State v. tacitly amount to the same.” When this case Kittelle, 110 N. C. 550, 15 S. E. 103, 15 L. R. was before the Supreme Court, speaking of A. 694, 28 Ain. St. Rep. 698, and, among other this instruction, the court said that the things, the court, in considering a statute defendant could not complain of it, because quite similar to ours, but in relation to the it was in his favor; but the court took ocsale of liquors to minors, said: "When reg- casion to express its disapproval of the inulations are imposed, as in this case, the struction by saying "that if they are to have licensee is criminally liable for their nonob- the effect given them by the charge in this servance. The defendant was found by the case, and in the argument of defendant's county commissioners 'qualified,' and a li- counsel, the act under which this prosecution cense was issued to him upon the personal is bad will be very easily evaded." This trust that he would conduct the business ac- language indicates that the court would have cording to the regulations. The sale here reversed the case if it could have done so. made to a minor was a violation of that trust, Bearing upon this general proposition, see also, Yoecker v. People, 91 Ill. 491; Mc-| fense charged was committed by the defendCutcheon v. People, 69 Ill. 606; Mogler v. ant or one of his employés. The instructions State, 47 Ark. 110, 14 S. W. 473; Loeb v. requested by the defendant were not broad Georgia, 75 Ga. 2:38; Snider v. State, 81 Ga. enough, in that they limited the issue to Mr. 753, 7 S. W. 631, 12 Am. St. Rep. 350; Riley O'Conner, who was in charge of the roulette V. State, 43 Miss. 397; Dudley V. Sautbine, game authorized to be conducted in the de19 Iowa, 650, 31 Am. Rep. 165; People v. fendant's saloon. Blake, 52 Mich. 566, 18 N. W. 360.

The assignment that the indictment was It is suggested by counsel for defendant not sufficiently specific is not well taken, bethat Mr. O'Conner, who was in charge of cause this objection was not raised by demurthe roulette wheel, was not shown to have rer, motion to quash, or by motion in arrest of been an employé of the defendant at the time judgment. The overruling of the motion for Clements was in the saloon, and, the defend- a new trial was not assigned as error in this ant being absent, there could be no conviction. court, and is therefore not before us. It having appeared in evidence that this There being no error in the record, the gambling device was in the defendant's sa- judgment of the court below is affirmned, with loon, and that O'Conner was operating it,

costs. It is so ordered. and at least one witness testified that he believed he saw a barkeeper there when he MILLS, C. J., and PARKER, ABBOTT, came in, and as the defendant, who was pos- and MANN, JJ., concur. POPE, J., having sessed of the knowledge as to whether these tried the case below, did not participate in parties were employés of his or not, failed this decision. to testify that they were not employés, although he gave evidence in the case, the jury were warranted in concluding that employés

(14 N. M. 245) of the defendant were present, and granted

MOGOLLON GOLD & COPPER CO. V. permission, by failing to exclude these minors

STOUT. from the place, as was their duty to do. (Supreme Court of New Mexico. Aug. 28. 1907.)

The rulings as to evidence and the tenth 1. JURY-RIGHT TO JURY TRIAL-ASSESSMENT and eleventh paragraphs of the court's in- OF DAMAGES. structions, authorizing conviction for acts

In a suit for damages, where an injunc

tion is also asked, if the suit is primarily for of employés without knowledge or consent

the injunction, and the right to damages is mereof the defendant, and notwithstanding his in- ly incidental to and dependent upon plaintiff's structions to them, seem to be fully sustained

right to the injunction, the court may, without

the intervention of a jury, assess the damages by the weight of authority.

already sustained; but, if the action is brought The eighth assignment of error challenges primarily for the recovery of a money judgment, the refusal of the court to give instructions

it is triable by a jury, notwithstanding that 1, 2, and 3, requested on behalf of the defend

the plaintiff also asks for an injunction against

the further violation of his rights. ant. As to these instructions, counsel in

[Ed. Note.-For cases in point, see Cent. Dig. his brief says that, “if given to the jury, vol. 31, Jury, 88 35–83.] would have enabled it to have passed on the 2. CONTINUANCE-DISCRETION OF COURT. good faith of the defendant in seeking to obey In the case at bar the court committed no the law, and the jury would have been com

error in overruling defendant's motion for a

continuance, as the granting or refusing of a pelled to find the defendant not guilty under

continuance in any case rests in the sound disthe testimony.” As has been stated in anoth

cretion of the court; and as in this cause the er part of this opinion, good faith of the case was first set for trial for the month of defendant does not constitute a legal de

June, 1905, and on July 6, 1905), was reset in

open court for trial for December, 1905, there fense, and while the court, in a case where

was no abuse of discretion in the refusal of the it has discretion, may consider good faith court to grant a further continuance, and to bein assessing the punishment, evidence tending

gin the trial of the case December 13, 1905. to show good faith does not enter into the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 10, Continuance, $$ 6, 7.] question of whether the defendant is guilty

3. APPEAL-ASSIGNMENTS OP ERROR. or not guilty, the sole question which the ju

Assignments of error as to the admissiry are authorized to determine. These in

bility or nonadmissibility of evidence, which are structions were therefore properly refused. in general terms and do not point out the par.

ticular question and answers objected to, will The ninth and tenth assignments cannot be

not be considered by this court. sustained for reasons heretofore stated. They

[Ed. Note. For cases in point, see Cent. Dig. are based upon the view that O'Conner was vol. 3, Appeal and Error, 8 3010.) not an employé of the defendant. The court

4. DAMAGES-ATTEMPT TO ARREST Loss. submitted the question to the jury as to When the injured party finds that a wrong whether the offense was committed by em

is being done him, he should use all reasonable

means to arrest the loss, and when a reasonable ployés or not, and, in the eleventh and ,

and bona fide attempt is made to reduce the twelfth instructions given by the court of damage, even if by such attempts the loss is inits own motion, the court plainly informed creased, it does not relieve the wrongdoer from

a suit for the full recovery of the damages the jury that there could be no conviction

claimed. unless the jury believed from the evidence

(Ed. Note.-For cases in point, see Cent. Dig. and beyond a reasonable doubt that the of- vol. 15, Damages, $8 119-132.]


5. SANE-INJURY TO GROWING TREES-Evr. and defendant in error has been deprived ot DENCE.

the use of said water for his stock and for In a suit for damages for the destruction of growing fruit trees and grapevines, it is compe

domestic purposes. Damages were asked in tent to prove the damages such as are here the sum of $2,000. Defendant in error also claimed, by showing the value of the trees and

asked for an injunction, and that he be devines destroyed, or by showing the value of the real estate with the trees and vines growing up

creed to have prior right to the use of the on it and its depreciation by reason of their

waters of Mineral creek, to the full extent loss, or in both ways.

of his prior appropriation, and for general (Syllabus by the Court.)

relief. Issues were finally joined, and the Error to District Court, Socorro County ;

cause was set for trial, at the next term of

court. Motion was made to strike the cause before Justice Frank W. Parker. Action by the Mogollon Gold & Copper

from the trial docket, which was denied.

Motion for a continuance was made, and Company against John W. Stout. Judgment for defendant, and plaintiff brings error.

was likewise denied, and the case was finally Amended and affirmed.

heard by a jury, which returned a verdict

in favor of plaintiff below, defendant in error The complaint in this case discloses that

herein, for the sum of $2,000 damages. At in the year 1883 the defendant in error set

the suggestion of the court $630 of the vertled on, and has since resided upon, a cer

dict was remitted, and judgment was entered tain tract of land situated in the county of

for the sum of $1,350. Motion for new trial Socorro, in this territory, containing a trifle

was argued and overruled, and a writ of over 100 acres, and that in April, 1894, the

error was sued out. United States patented the same to him;

McMillen & Raynolds and Dougherty & that immediately upon his settlement upon the land in 1883 defendant in error took and

Grithith, for plaintiff in error. James G. appropriated one cubic foot of water per sec

Fitch and W. H. Winter, for defendant in ond from Mineral creek, when that amount

error. of water was fiowing in said creek, by building a certain irrigation ditch about 1.800 MILLS, C. J. (after stating the facts as feet long and 20 incbes in width, extending above). On the several assignments of erfrom a point on Mineral creek above lands ror we will consider those that we deem perof defendant in error down to and across tinent to the proper disposition of this case. his lands; that the water so appropriated It will not be necessary to take them up was used for irrigating his lands, vineyard, severally, as those which relate to the measfruit trees, plants, and vegetables, and for ure of damages can properly be considered watering his live stock, and for domestic together. purposes; that his lands were irrigated from 1. The first alleged error to be considered five or sis times during each season; that is that the court below erred in overruling at the time of his appropriation the water the motion of defendant to strike the cause of Mineral creek was pure, and suitable for from the jury trial docket and in submitting the purposes for which it was appropriat- the cause to trial by jury. The claim of ed; that in the year 1893, plaintiff in error plaintiff in error is based upon the wellerected a large quartz or stamp mill, with a known principle that, if jurisdiction attaches, crushing capacity of over 100 tons for every a court of equity will go on and do com24 hours, some distance above the head of plete justice, although in its progress it may the irrigation ditch, and so near Mineral decree on matter which was cognizable at creek that the tailings from the mill ran in- law, and that, as the complaint in this case to Mineral creek and polluted the waters of set up facts which called for both legal and that stream with mineral poison and other equitable relief, when the court took jurissubstances highly injurious to vegetable and diction for the purpose of administering animal life; that the tailings and other dele- equitable relief--that is, issuing the injuncterious substances were carried by the waters tion prayed for-it took jurisdiction of the of the creek into the irrigation ditch of de- case for all purposes, and would itself defondant in error and upon and over his cide the question of fact involved in the lands; that by reason of the pollution of case, without the intervention of a jury. the water the same was rendered unfit for Our Code of Civil Procedure authorizes the the uses and purposes for which it had been uniting of both legal and equitable causes of appropriatel, and that by reason of the tail- action in the same complaint, where they ings running into the irrigation ditch it has arise out of the same transaction or transacfilled up, and the lands thereunder have been tions, connected with the same subject of permanently injured by the deposit thereon action. Subsection 33, § 2683, Comp. Laws of the tailings and the mineral poisons; that 1897. Even a cursory examination of the the alfalfa, a vineyard, trees, plants, and statement of facts which precedes this opinvegetables of defendant in error have ceased ion will show that the legal and equitable to grow and be productive; and that he has causes of action stated in the complaint wholly lost his crops, and the alfalfa, vine- arise out of the same transaction. Indeed, yard, trees, plants, and vegetables have been it is nowhere contended that the complaint poisoned, dried up, and wholly destroyed, improperly joined causes of action, The

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