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The sufficiency of an indictment will not be considered, where the objection was not raised by demurrer or by motions to quash or in arrest. [Ed. Note. For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2627.]


The overruling of a motion for a new trial in a criminal case, not assigned as error on appeal, is not before the court on appeal.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2954.]

Appeal from District Court, Chavez County; before Justice W. H. Pope.

Joshua P. Church was convicted of permitting a minor to gamble in his saloon, and he appeals. Affirmed.

On the 12th day of November, 1903, the defendant was indicted, and the body of the indictment is as follows: "That Joshua P. Church, late of the county of Chavez, in the territory of New Mexico, on the 25th day of October, in the year of our Lord one thousand nine hundred and three, at the county of Chavez, aforesaid, in said territory of New Mexico, being then and there proprietor, keeper and manager of a certain saloon there situate where intoxicating liquor is kept and offered for sale and where gambling is carried on and permitted, unlawfully and knowingly allow and permit one Guy C. Clements, a minor under the age of twenty-one years and a pupil of a school and educational institution, to wit, The New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to said saloon and engage in games and amusements thereon, contrary to the form of the statute in such case made and provided and against the peace and dignity of the territory of New Mexico."

The record in this case discloses very few facts, but those disclosed, together with the admission of the defendant, seem sufficient for a proper understanding and disposition of the case. The substance of the proof was that Guy C. Clements, Clarence Clements, Reid Curtis, and one McCracken were in the Oriental Saloon, at Roswell, some time during September, October, or November, 1903, and while there Guy C. Clements engaged in playing the roulette wheel, while the others watched the play; that Guy C. Clements and his brother Clarence were in that saloon more than once; that all of these boys were minors and students of the New Mexico Military Institute; that they were not molested or put out of the saloon at any time; that a man by the name of O'Conner was operating the roulette wheel in the saloon, and, so far as the testimony shows, the defendant was not in the saloon at the time these boys were there. The defendant, however, admits upon the record that he was the owner and manager of the Oriental Saloon in the fall of 1903. Upon a trial before a jury, the defendant was found guilty as charged in the indictment. Motion for a new trial having

01 P.-46

been overruled, judgment was rendered on the verdict, and the defendant was sentenced to pay to the territory a fine of $50 and costs, and to stand committed until fine and costs were paid. A motion in arrest of judgment was filed and overruled, and the defendant has brought the cause to this court by appeal.

Gatewood & Dunn, for appellant. W. C. Reid, Atty. Gen., for the Territory.

McFIE, J. (after stating the facts as above). The indictment is based upon the violation of section 3, c. 3, p. 19, Laws 1901, which is as follows: "Section 3. It shall be unlawful for the proprietor, keeper or manager of any saloon where intoxicating liquor is kept or offered for sale, or where gambling in any form is carried on or permitted, to permit any minor under the age of twenty-one years or any pupil in any school or educational institution, to loiter upon or frequent the premises belonging to such saloon, or to engage in games or amusements of any kind thereon." Section 7 of the same chapter is also pertinent, and provides that: "The word 'person' as used in this act, shall be deemed to mean firm or corporation, as well as natural person, and the person managing the business of such firm or corporation shall be liable to the penalties prescribed by this act. And the proprietor or owner of any of the establishments mentioned in this act shall be liable to the penalties prescribed by this act for any violation of its provisions within or at their establishments, whether committed by themselves or by persons in their employ."

Numerous assignments of error appear in the record; but, inasmuch as more than one of them raise the same question in a different form, it will not be necessary for us to consider each of them separately. The first assignment of error is that the court erred in overruling the defendant's motion in arrest of judgment. The indictment in this case omitted to insert the word "did" in the charging part before the words "unlawfully and knowingly allow and permit one Guy C. Clements, a minor and student of the New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to such saloon, and to engage in games and amusements thereon," etc. No demurrer or motion to quash was filed attacking the sufficiency of the indictment; but, after trial and judgment, a motion in arrest of judgment was interposed, based upon this omission, as a fatal defect in the indictment. The court below overruled the motion, and. as counsel for the defendant contends, committed error in so doing. The omission of the word "did," in the charging part of an indictment for a felony, has been held fatal in the state of Texas, and in some other jurisdictions; but in misdemeanors, where a more liberal rule of pleading prevails, such an omission, appearing to be purely clerical. is not deemed fatal, and, if desirable for

completeness of statement, will be supplied by intendment. In State v. Edwards, 19 Mo. 675, the court said: "The omission in this indictment consists of the neglect to insert the word 'did' before the words 'assault, beat and maltreat one Stephen L. Page, in the peace then and there being, and other wrongs,' etc., so as to make the sentence read thus: 'With force and violence, in a turbulent and violent manner, "did" assault, beat and maltreat,' etc. We are inclined to think that this word 'did' may, in this indictment, be supplied by intendment. In indictments for misdemeanors merely, such intendment is often resorted to. The strictness and rigor in construction of indictments for felonies are not applied uniformly to indictments for mere misdemeanors. In the case of State v. Halder, 2 McCord (S. C.) 377, 13 Am. Dec. 738, the omission to insert the word 'did' before the words 'feloniously utter and publish, dispose and pass' was held fatal, and the judgment was arrested. This indictment was for a felony. In the case of the State v. Whitney, 15 Vt. 298, which was an indictment for a misdemeanor, selling liquor by the small measure, without license. the word 'did' was omitted, which should have been joined with the words 'sell and dispose of. This omission was held not to be fatal on motion in arrest of judgment. Bennet, J., in delivering the opinion of the court, said: 'In this indictment, it is alleged that the respondent, on the 1st day of August, A. D. 1842, at. etc.. sell and dispose of, etc. It is evident that the omission is purely a clerical one. The auxiliary verb may be supplied by intendment.'" People v. Duford, 66 Mich. 91, 33 N. W. 28; Shay v. People, 22 N. Y. 317.

The omission from the indictment in the present case is so obviously clerical that it cannot reasonably be said that the defendant was misled or prejudiced in pleading to the indictment and going to trial, and it is too late, in a case of misdemeanor, for the defendant to raise this question for the first time by motion in arrest of judgment. In the case of People v. Duford, 66 Mich. 90. 33 N. W. 28. the court said: "If the word did' had been used in the place of 'was,' after the word 'situate,' and before 'willfully,' it would have charged the offense positively upon the respondent. This mistake, we think, should be regarded as clerical and formal, and one which did not mislead, or result to the respondent's prejudice. Especially should this be so held in view of the fact that the complaint upon which he was arrested contained the charge correctly stated. If the respondent desired to take advantage of the defect relied upon, he should have demurred or moved to quash." As to whether the omission of the word "did," as in the indictment in this case, would be fatal or not, we do not decide; but, as the charge is a misdemeanor only, and the punishment assessed a fine of $50 and costs, we are of opinion

that the court did not err in overruling the motion in arrest of judgment.

In the second, third, fourth, and fifth assignments, it is charged that the court committed error in excluding testimony offered in behalf of the defendant to the effect that the defendant had forbidden minors to loiter in his saloon premises: that he had instructed his employés not to allow minors to loiter about his saloon, and has so instructed O'Conner, who was in charge of the roulette wheel at the time Guy C. Clements was in the saloon. The contention of the defendant is that his good faith evidenced by such instructions to minors and employés constitutes a good defense. The court below excluded this testimony as immaterial, on the ground that the same would not constitute a defense. In Carroll v. State, 63 Md. 551, 3 Atl. 29, the court said: "The fact that he (saloonkeeper) has given orders not to sell to minors only shows a bona fide intent to obey the law, which all the authorities say is immaterial in determining guilt." In McCutcheon v. People, 69 Ill. 601, the court said: "Where, in the absence of a saloonkeeper, a sale of liquor is made by his bartender, the directions of the former not to sell to minors will not exempt him from liability for the sale." Mogler v. State, 47 Ark. 110, 14 S. W. 473; Waller v. State, 38 Ark. 656; Loeb v. Georgia, 75 Ga. 258; Riley v. State, 43 Miss. 397; Dudley v. Sautbine. 49 Iowa, 650, 31 Am. Rep. 165; Mugler v. Kansas, 128 U. S. 623. 8 Sup. Ct. 273, 31 L. Ed. 205. The instructions of the defendant, tending to show his good faith, did not constitute a defense, and the court properly excluded this testimony.

The second, third, fourth, fifth, and sixth assignments of error are made the basis of contention by defendant's counsel, as stated in his brief, that "the principal is not liable under the statute for the act of his employé, unless he had knowledge of such act; nor is he liable if the act is committed by the employé against the order of the principal and without his knowledge." This would doubtless be a correct statement of the law under a statute which made the intention to commit an essential ingredient of the crime. Our statute provides that "the proprietor or owner of any of the establishments mentioned in this act shall be liable to the penalties prescribed by this act for any violation of its provisions within or at their establishments, whether committed by themselves or by persons in their employ." It is clear from this provision of the statute that intent to commit is not made an essential element of the crime, nor is it provided that it shall be knowingly done. The indictment in this case uses the word "knowingly," but, as the statute does not require it, it must be treated as surplusage. In the case of Carroll v. State, supra, the Supreme Court of Maryland said: "If intent is not an ingredient in the offense, it logically follows

that it must be immaterial whether such orders are given or not, for he who does by another that which he cannot lawfully do in person must be responsible for the agent's acts. In fact, it is his act. It cannot be that by setting another to do his work, and occupying himself elsewhere or otherwise, he can reap the benefit of his agent's sales, and escape the consequences of his agent's conduct. It would be impossible effectually to enforce a statute of this kind if that were allowed, and it would speedily become a dead letter." This language was used by the court in a case where the charge was selling liquor to minors, but we see no difference in the principle involved. Our statute specifically provides that the act of the employé shall be the act of the proprietor or owner of saloons where liquors are sold or gambling is permitted, and it is the proprietor or owner who is declared liable both for his own and his employés' acts and negligence. The evidence showed that Guy C. Clements, a minor, was in the saloon of the defendant for about 30 minutes on one occasion, and while there he participated in gambling which was being carried on in the saloon; and the evidence shows, also, that this minor was in the saloon of the deferdant on more than one occasion, and other minors and students were also in the saloon at the same times. There is no evidence in the record disclosing any effort to prevent these minors from entering the place, nor to prevent them from remaining there after they had entered. It was proven, therefore, that Guy C. Clements, both a minor and a student of the New Mexico Military Institute, did frequent and loiter in the saloon of the defendant, which was also proven to be a place where intoxicating liquors were kept and offered for sale, and where gambling was carried on.

When this defendant procured a license to conduct that saloon, he obligated himself to conduct it in obedience to law, and one of the existing requirements of law was that minors and students should not be permitted to loiter upon or frequent the defendant's saloon premises. The defendant was under obligation to see that this law was obeyed, and, if he chose to leave others in charge of his saloon, he is liable for their failure to do what the law requires. This question is fully considered and a long line of authorities examined by the court in the case of State v. Kittelle, 110 N. C. 550, 15 S. E. 103, 15 L. R. A. 694, 28 Am. St. Rep. 698, and, among other things, the court, in considering a statute quite similar to ours, but in relation to the sale of liquors to minors, said: "When regulations are imposed, as in this case, the licensee is criminally liable for their nonobservance. The defendant was found by the county commissioners 'qualified,' and a license was issued to him upon the personal trust that he would conduct the business according to the regulations. The sale here made to a minor was a violation of that trust,

and a violation of law. It is no defense that the defendant had no intention to violate the law. 'Good intentions' are said by the proverb to be the pavement of another place, but they are not a sound one for a barroom. The law has been violated. It looks to the man it intrusted with the management of this business, and holds him liable. It is immaterial whether his liability is based upon his negligence in permitting the sale, or upon the principle of agency, or upon both, for the defendant is liable for a negligent sale from insufficient supervision of an agent, as much as if he had ordered the sale. If the clerk, as Judge Cooley says, supra, being in possession of the keys, opened the saloon on Sunday for traffic, the licensee could not excuse himself from liability by his absence or ignorance; nor can he do so in the present case of a sale to the minor by being temporarily absent from the room. The defendant chose to seek for and assume the liabilities of the calling of a saloonkeeper that he might enjoy its profits. He cannot be allowed to enjoy its profits and assign its duties and liabilities to another." In the case of People v. Roby, 52 Mich. 577, 18 N. W. 365, 50 Am. Rep. 270, the conviction of the owner was sustained where his clerk, in cleaning out his saloon on Sunday, sold a drink of liquor without the knowledge or consent of the owner. In deciding that case, Chief Justice Cooley said: "As a rule, there can be no crime without a criminal intent, but this is by no means a universal rule. One may be guilty of the high crime of manslaughter, when his only fault is gross negligence, and there are many other cases where mere neglect may be highly criminal. Many statutes which are in the nature of police regulations, as is this, impose criminal penalties irrespective of any intent to violate them; the purpose being to require a degree of diligence for the protection of the public which shall render violation impossible." These observations are deemed equally applicable to the present case, as our statute may be properly designated a police regulation also. In State v. Privett, 49 N. C. 100, the court instructed the jury to the effect "that, if the principal instructed his clerk not to sell, he would not be liable for the sale by the clerk, unless such instruction had been abrogated expressly or by a course of conduct which would tacitly amount to the same.” When this case was before the Supreme Court, speaking of this instruction, the court said that the defendant could not complain of it, because it was in his favor; but the court took occasion to express its disapproval of the instruction by saying "that if they are to have the effect given them by the charge in this case, and in the argument of defendant's counsel, the act under which this prosecution is had will be very easily evaded." This language indicates that the court would have reversed the case if it could have done so. Bearing upon this general proposition, see

also, Noecker v. People, 91 Ill. 491; McCutcheon v. People, 69 Ill. 606; Mogler v. State, 47 Ark. 110, 14 S. W. 473; Loeb v. Georgia, 75 Ga. 258; Snider v. State, 81 Ga. 753, 7 S. W. 631, 12 Am. St. Rep. 350; Riley v. State, 43 Miss. 397; Dudley v. Sautbine, 49 Iowa, 650, 31 Am. Rep. 165; People v. Blake, 52 Mich. 566, 18 N. W. 360.

It is suggested by counsel for defendant that Mr. O'Conner, who was in charge of the roulette wheel, was not shown to have been an employé of the defendant at the time Clements was in the saloon, and, the defendant being absent, there could be no conviction. It having appeared in evidence that this gambling device was in the defendant's saloon, and that O'Conner was operating it, and at least one witness testified that he believed he saw a barkeeper there when he came in, and as the defendant, who was possessed of the knowledge as to whether these parties were employés of his or not, failed to testify that they were not employés, although he gave evidence in the case, the jury were warranted in concluding that employés of the defendant were present, and granted permission, by failing to exclude these minors from the place, as was their duty to do.

The rulings as to evidence and the tenth and eleventh paragraphs of the court's instructions, authorizing conviction for acts of employés without knowledge or consent of the defendant, and notwithstanding his instructions to them, seem to be fully sustained by the weight of authority.

The eighth assignment of error challenges the refusal of the court to give instructions 1, 2, and 3, requested on behalf of the defendant. As to these instructions, counsel in his brief says that, "if given to the jury, would have enabled it to have passed on the good faith of the defendant in seeking to obey the law, and the jury would have been compelled to find the defendant not guilty under the testimony." As has been stated in another part of this opinion, good faith of the defendant does not constitute a legal defense, and while the court, in a case where it has discretion, may consider good faith in assessing the punishment, evidence tending to show good faith does not enter into the question of whether the defendant is guilty or not guilty, the sole question which the jury are authorized to determine. These instructions were therefore properly refused.

The ninth and tenth assignments cannot be sustained for reasons heretofore stated. They are based upon the view that O'Conner was not an employé of the defendant. The court submitted the question to the jury as to whether the offense was committed by employés or not, and, in the eleventh and twelfth instructions given by the court of its own motion, the court plainly informed the jury that there could be no conviction unless the jury believed from the evidence and beyond a reasonable doubt that the of

fense charged was committed by the defendant or one of his employés. The instructions requested by the defendant were not broad enough, in that they limited the issue to Mr. O'Conner, who was in charge of the roulette game authorized to be conducted in the defendant's saloon.

The assignment that the indictment was not sufficiently specific is not well taken, because this objection was not raised by demurrer, motion to quash, or by motion in arrest of judgment. The overruling of the motion for a new trial was not assigned as error in this court, and is therefore not before us.

There being no error in the record, the judgment of the court below is affirmed, with costs. It is so ordered.

MILLS, C. J., and PARKER, ABBOTT, and MANN, JJ., concur. POPE, J., having tried the case below, did not participate in this decision.

(14 N. M. 245)


(Supreme Court of New Mexico. Aug. 28. 1907.) 1. JURY-RIGHT TO JURY TRIAL-ASSESSMENT OF DAMAGES.

In a suit for damages, where an injunction is also asked, if the suit is primarily for the injunction, and the right to damages is merely incidental to and dependent upon plaintiff's right to the injunction, the court may, without the intervention of a jury, assess the damages already sustained; but, if the action is brought primarily for the recovery of a money judgment, it is triable by a jury, notwithstanding that the plaintiff also asks for an injunction against the further violation of his rights.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 31, Jury, §§ 35-83.]


In the case at bar the court committed no error in overruling defendant's motion for a continuance, as the granting or refusing of a continuance in any case rests in the sound discretion of the court; and as in this cause the case was first set for trial for the month of June, 1905, and on July 6, 1905, was reset in open court for trial for December, 1905, there was no abuse of discretion in the refusal of the court to grant a further continuance, and to begin the trial of the case December 13, 1905. [Ed. Note.-For cases in point, see Cent. Dig. vol. 10, Continuance, §§ 6, 7.]


Assignments of error as to the admissibility or nonadmissibility of evidence, which are in general terms and do not point out the par ticular question and answers objected to, will not be considered by this court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3010.]


When the injured party finds that a wrong is being done him, he should use all reasonable means to arrest the loss, and when a reasonable and bona fide attempt is made to reduce the damage, even if by such attempts the loss is increased, it does not relieve the wrongdoer from a suit for the full recovery of the damages claimed.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Damages, §§ 119-132.]



In a suit for damages for the destruction of growing fruit trees and grapevines, it is competent to prove the damages such as are here claimed, by showing the value of the trees and vines destroyed, or by showing the value of the real estate with the trees and vines growing upon it and its depreciation by reason of their loss, or in both ways.

(Syllabus by the Court.)

Error to District Court, Socorro County; before Justice Frank W. Parker.

Action by the Mogollon Gold & Copper Company against John W. Stout. Judgment for defendant, and plaintiff brings error. Amended and affirmed.

The complaint in this case discloses that in the year 1883 the defendant in error settled on, and has since resided upon, a certain tract of land situated in the county of Socorro, in this territory, containing a trifle over 100 acres, and that in April, 1894, the United States patented the same to him; that immediately upon his settlement upon the land in 1883 defendant in error took and appropriated one cubic foot of water per second from Mineral creek, when that amount of water was flowing in said creek, by building a certain irrigation ditch about 1,800 feet long and 20 inches in width, extending from a point on Mineral creek above lands of defendant in error down to and across his lands; that the water so appropriated was used for irrigating his lands, vineyard, fruit trees, plants, and vegetables, and for watering his live stock, and for domestic purposes; that his lands were irrigated from five or six times during each season; that at the time of his appropriation the water of Mineral creek was pure, and suitable for the purposes for which it was appropriated; that in the year 1893, plaintiff in error erected a large quartz or stamp mill, with a crushing capacity of over 100 tons for every 24 hours, some distance above the head of the irrigation ditch, and so near Mineral creek that the tailings from the mill ran into Mineral creek and polluted the waters of that stream with mineral poison and other substances highly injurious to vegetable and animal life; that the tailings and other deleterious substances were carried by the waters of the creek into the irrigation ditch of defendant in error and upon and over his lands; that by reason of the pollution of the water the same was rendered unfit for the uses and purposes for which it had been appropriated, and that by reason of the tailings running into the irrigation ditch it has filled up, and the lands thereunder have been permanently injured by the deposit thereon of the tailings and the mineral poisons; that the alfalfa, a vineyard, trees, plants, and vegetables of defendant in error have ceased to grow and be productive; and that he has wholly lost his crops, and the alfalfa, vineyard, trees, plants, and vegetables have been poisoned, dried up, and wholly destroyed,

and defendant in error has been deprived of the use of said water for his stock and for domestic purposes. Damages were asked in the sum of $2,000. Defendant in error also asked for an injunction, and that he be decreed to have prior right to the use of the waters of Mineral creek, to the full extent of his prior appropriation, and for general relief. Issues were finally joined, and the cause was set for trial, at the next term of court. Motion was made to strike the cause from the trial docket, which was denied. Motion for a continuance was made, and was likewise denied, and the case was finally heard by a jury, which returned a verdict in favor of plaintiff below, defendant in error herein, for the sum of $2,000 damages. At the suggestion of the court $650 of the ver dict was remitted, and judgment was entered for the sum of $1,350. Motion for new trial was argued and overruled, and a writ of error was sued out.

McMillen & Raynolds and Dougherty & Griffith, for plaintiff in error. James G. Fitch and W. H. Winter, for defendant in error.

MILLS, C. J. (after stating the facts as above). On the several assignments of error we will consider those that we deem pertinent to the proper disposition of this case. It will not be necessary to take them up severally, as those which relate to the measure of damages can properly be considered together.

1. The first alleged error to be considered is that the court below erred in overruling the motion of defendant to strike the cause from the jury trial docket and in submitting the cause to trial by jury. The claim of plaintiff in error is based upon the wellknown principle that, if jurisdiction attaches, a court of equity will go on and do complete justice, although in its progress it may decree on matter which was cognizable at law, and that, as the complaint in this case set up facts which called for both legal and equitable relief, when the court took jurisdiction for the purpose of administering equitable relief-that is, issuing the injunetion prayed for it took jurisdiction of the case for all purposes, and would itself decide the question of fact involved in the case, without the intervention of a jury. Our Code of Civil Procedure authorizes the uniting of both legal and equitable causes of action in the same complaint, where they arise out of the same transaction or transactions, connected with the same subject of action. Subsection 33, § 2685, Comp. Laws 1897. Even a cursory examination of the statement of facts which precedes this opinion will show that the legal and equitable causes of action stated in the complaint arise out of the same transaction. Indeed, it is nowhere contended that the complaint improperly joined causes of action. The

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