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security of freedom of thought and action, L. A. Meredith was convicted of larceny, and therefore of that independence so ab- and appeals. Affirme:). solutely essential to the faithful discharge

Toombs & Pace, for appellant. W. C. Reid, of the duties imposed upon that body, which

Atty. Gen., for the Territory. it impaired or destroyed would be fatal to a vigorous administration of the criminal law'.

ABBOTT, J. The defendant, here the apProffatt on Jury Trial, 89; 17 Am. & Eng.

pellant, was found guilty by a jury at the Ency. of Law (20 Ed.) 1295; State . John

March term, 19806, of the Fourth district court son, 113 Mo, 150, 22 S. W. 163; Elbin v. Wil

for Union county, Mills, C. J., presiding of son, 33 Md. 133; People. v. Thompson, 122

the larceny of one head of neat cattle, a bull Mich. 111, 81 X. W. 31; Ex parte Sontag,

calf, the property of Joseph Davis. The alt 64 Cal. J23. 2 Pac. 102."

was nearly a year old, was branded, and had, The judgment of the court below is re

besides, certain tlesh and skin markings dleversed, and the cause remanded for a new

scribed in the evidence. The errors astrial on the issues raised by the plea in signed relate to the admission of certain eviabatement.

dence, to certain instructions given to the

jury, and others refused. MILLS, C. J., and McFIE, PARKER, and The first error alleged is that the court ABBOTT, JJ., concur. POPE, J., having

improperly admitted in evidence a certified heard the case below, took no part in this

copy of the brand of Joseph Davis, who claimdecision.

ed to be the owner of the calf: it appearing that it was not recorded until about 35 days

after the date of the larceny charged. The (14 V. M. 288)

statute (section 107, Comp. Law's 1897), which TERRITORY V. MEREDITII.

provides that no brands except such as are (Supreme Court of New Mexico. Aug. 28, 1907.) duly recorded shall be recognized in law as 1. ANIMALS--BRANDS-EVIDENCE OF OWNER

evidence of ownership, does not limit the SUIP.

time to which such proof shall relate. It The statute providing that unrecorded stock must have been the case, when that law was brands shall not be recognized "as any evidence enacteil, that many cattle in the territory of ownership" does not prevent the recognition of a duly recorded brand as evidence bearing on

bore brands which had not been recorded. the question of ownership prior to the record of One object of the law was to have them rethe brand.

corded. On the contention of the appellant, , (Ed. Note.-For cases in point, see Cent. Dig. the ownership of cattle branded before the vol. 2, Animals, $ 9.]

passage of the law could not have been proy2. LARCEXY - CATTLE THIEFT - EVIDENCE

ed by brand, although record was made at the BRAND. In the trial of one charged with the larceny

earliest possible moment after the law went of a calf bearing a certain brand, which the into effect; and it must often happen that owner did not have recorded until after the cattle come into the territory which were time of the alleged larceny, evidence is admissible that the owner began to use the brand 10

branded elsewhere by their owners. Can it years before in Utah, and since then had been be that such an owner, who uses due diliusing it at the range where it was claimed the gence to record his brand after his arrival larceny occurred, as bearing on his good faith

here, is forbidden to prove his ownership in claiming the brand and having it recorded as his own, and on the felonious intent of the

against a thief who takes his cattle in the appellant in taking the calf.

time which must elapse before his brand 3. WITNESSES-EXAMINATION-LEADING QUES- could arrive at the place of record? That TIONS.

certainly is not a reasonable view to take Leading questions may be put to witnesses at the discretion of the trial judge, and no abuse

of the legislative intent. 2 Cyc. 325-364 ; of that discretion is shown by the record in this Chesnut v. People, 21 Colo. 512, 42 Pac. 0.56; cause.

Turner v. State, 39 Tex. Cr. R. 322, 45 S. (Ed. Note.-For cases in point, see Cent. Dig. W. 1020. vol. 50, Witnesses, 795.)

The appellant next contends that it was 4. CRIMINAL LAW-INSTRUCTIONS.

error to admit evidence that Davis had used The trial judge was not bound on the evidence in the case to give special instructions

the same brand 10 years before in Utah. It on the law of accomplices.

was charged that the appellant, who lived [Ed. Note. -For cases in point, sce Cent. Dig. in the vicinity. had taken away the calf in vol. 14, Criniinal Law, $$ 1859, 1860.]

question from the range where it was kept 5. SAME.

by the owner, converted it to his own use, When a specification of the material allegations of an indictment would be practically no

and had it killed, and that he did so with the more than a repetition of the language of the knowledge and intent essential to make his indictment itself, it is not necessary, and ordi- acts larceny. Evidence of the extent and narily would not be helpful to the jury, for the

length of time of Davis' use of the brunal court to include such a specification in its instructions.

was material and relevant on the question of (Syllabus by the Court.)

the appellant's probable knowledge of it as

Davis' brand. Besides, the fact that the Appeal from District Court, t'nion County; brand was not recoroleil until after the albefore Justice William J. Mills.

leged larceny, as it was urged in behalf of the appellant, may have detracted from its instructions on that point, beyond the genprobative force and put in doubt the good eral one that they (the jury) were the sole faith of Davis in claiming it as his brand. | judges of the weight of the evidence and the Evidence that he had long used it was rele- credibility of the witnesses, and that, in passvant on that point.

ing on the credibility of any witness or the

is that the trial judge asked a witness for the should consider the relationship of the parterritory a leading question. It is well estab- ties, if any, and the interest which he may lished that the court may, in its discretion,

have in the result of the case. permit leading questions, and that only an

It is claimed that the court should have abuse of that discretion will warrant an ap- given the jury a definition of larceny, and, pellate court in declaring it reversible error. while that might well have been done, it Jones on Evidence, & 819; Greenleaf on Evi

cannot be said that it would have added anydence (Redf. Ed.) § 435. It is equally well

thing essential to the obvious meaning of established that a trial judge can himself

the charge in the indictment that the defendpropound questions to witnesses (Jones on ant "did steal, take, and knowingly kill one Ev. & 814), and it would follow beyond doubt

head of neat cattle, the property of Joseph

Davis." Of the truth of that charge the that they might be leading questions. The question asked by the court in the trial of

court instructed the jury they must be satisthe case at bar was obviously intended to

fied beyond a reasonable doubt in order to

find the defendant guilty. The material alclear up a misunderstanding between counsel for the appellant and a witness for the

legations were all embraced in it, and were

contained in so few words that it would have territory as to certain testimony given on

tended to confusion, rather than clearness, cross-examination which was susceptible of

to restate them in another form. two meanings. The witness had already in

The remaining assignments of error are effect given the explanation which it is claim

not of a nature to call for specific examinaed the question of the court suggested, and

tion. There was abundant evidence, if bethe answer to that question did no more than

lieved, to warrant, if not to require, a vermake clear what might otherwise have re

dict of guilty, and this court cannot say the mained somewhat obscure.

jury should not have believed the witnesses The ninth assignment of error is that the

for the territory in preference to those of çourt failed to instruct the jury in relation

the defendant. to the law of accomplices. As the basis of

Judgment affirmed. that contention, it is asserted that one of the principal witnesses against the appellant was PARKER, MANN, McFIE, and POPE, JJ., an accomplice on his own testimony. The concur. MILLS, C. J., having tried the case evidence does not, we think, sustain that in the district court, did not take part in claim, and the court was not bound to give this decision.

(14 N. M. 262)

The appellant, Elmer L. Price, was indictTERRITORY V. PRICE.

ed by a grand jury of Roosevelt county, April

4, 1906, for the murder of Frank B. Curtis (Supreme Court of New Mexico. Aug. 28, 1907.)

on March 30, 1906. Curtis on that day was 1. CRIMINAL LAW-CONTINUANCE.

the conductor, and Price the news agent, on There was no abuse of discretion by the

the passenger train from Amarillo to Rostrial court in refusing the continuance prayed for by the defendant, but rather, under the cir

well, N. J., which was a few hours late, and cumstances, was its course in requiring trial so running at night, instead of by day, as without delay commendable.

usual. It appeared from undisputed evidence TEI. Note.--For cases in point, see Cent. Dig.

that it was reported to Curtis by passengers vol. 14, Criminal Law, § 1315.]

that the defendant was drunk, had sent a 2. SAME-EVIDENCE. A diagram, offered in evidence in connec

negro porter to passengers to sell his wares, tion with and to illustrate the testimony of the

and had been annoying a lady passenger in witness for the territory who made it, was a Pullman car on the train; that Curtis reproperly admitted, although there was other evidence for the territory tending to show that

n'onstrated with him about it, charged him the diagram was incorrect in some particulars.

with being drunk, and threatened to put him [Ed. Note.For cases in point, see Cent. Dig. off the train if he did not behave; and that vol. 14, Criminal Law, $ 1021.1

a few minutes later, while on his way through 3. FIOMICIDE-EVIDENCE.

the car where Price was standing between Evidence that the defendant was intoxicated

two ordinary' car seats on which he had his at the time of the homicide with which he was charged, and that shortly before he, being a

wares and some other articles, he stopped, news agent on the train on which the man he grasped Price by or near the throat, and, killed was conductor, had done certain things being much the larger and stronger man, which were reported to the conductor and were the subject of the altercation between them

shoved him toward or against the wall of the which terminated in the shooting of the con- car, when Price fired three shots from a re ductor, embodied circumstances forming a part volver be bad, all of which struck Curtis, of the res gestae, and was properly admitted.

who died almost immediately. There was [Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Homicide, $ 341.]

evidence in behalf of the territory that as 4. CRIMINAL LAWREASONABLE DOUBT.

Curtis was passing Price, as above stated, A reasonable doubt is not a mere possi

the latter took hold of his arm and partly bility of innocence.

drew a revolver; that as Curtis immediate[Ed. Note.--For_cases in point, see Cent. Dig. ly turned he put the revolver out of sight; vol. 14, Criminal Law, § 1267.]

that Curtis was about to pass on, when the 5. SAME-INSTRUCTIONS.

defendant again took hold of him by the A proper instruction to the jury on the subject of reasonable doubt, when once given lapel of his coat, when Curtis turned again, and made applicable to every material allega- something was said between them, he grasped tion against ihe defendant, need not ordinarily the defendant, and a shot was almost instantbe repeated as a part of other separate instructions.

ly fired; that Curtis staggered back and [Ed. Note.--For cases in point, see Cent, Dig. wheeled toward the door of the car; that as vol. 14, Criminal Law, $ 1991.]

he did so another shot was tired; that Curtis 6. HOMICIDE--EVIDENCE.

passed, staggering, out of the door, which Evidence was properly admitted that the de- was no more than five or six feet distant, fendant had in his possession materials with

and had his hand on the knob of the door of which he could have produced effects on his clothing which he testified were caused by one

the next car, toward which he was stooping or more of the shots he fired.

or falling, when the defendant, who had [Ed. Note.--For cases in point, see Cent. Dig. | stepped from between the car seats into the vol. 26, Homicide, $ 364.]

aisle behind Curtis, fired a shot into his back, 7. SAME-SELF-DEFENSE.

which passed upward, probably through the An instruction that one cannot invoke the heart, whereupon Curtis fell forward through law of self-defense, who arms himself with a loaded pistol and seeks, brings on, or voluntarily the door, the knob of which he still held, enters into a difficulty with another for the pur- | into the next car, uttered two sharp expose and with the felonious intent of killing hin, attacks such other person, his force is met

clamations, and was dead before any one with force in return, and as a part of the same could reach him. The defendant in his testransaction he does shoot and kill his opponent, timony denied that he touched Curtis or did was sufficiently favorable to the defendant.

anything as he was passing to attract his at8. CRIMINAL LAW-INSTRUCTIONS.

It is not error to refuse to give an instruc- | tention, and claimed that Curtis without any tion, even when it is a correct and appropriate provocation stopped, again charged him with statement of the law, if proper instruction is intoxication and misconduct, and, when he otherwise given on the question to which it relates.

denied it, seized him by the throat, began (Ed. Note:--For cases in point, see Cent. Dig. choking him, jammed him against the side vol. 15, Criminal Law, § 2011.]

of the car, and threatened to smash his (Syllabus by the Court.)

brains out. He said he tired three shots, but

denied that he fired any shot into Curtis Error to District Court, Roosevelt County; | back, or any shot after Curtis had released before Justice William H. Pope.

his hold and turned away from him. It haj)Elmer L. Price was convicted of murder, pened that W. II. Cox, a deputy sheriff of and brings error. Affirmed

Roosevelt county, was a passenger on the train, and was in the car into which Curtis ! speedy trial guaranteed by the Constitution. fell forward after he was shot. He took the as one of the valued and inalienable rights defendant into custody immediately, and at of the accused. It seems clear, however, Roswell, where the train stomed, detained that if the object of the trial in the case at as witnesses those whose testimony it was bar was not to afford the defendant every thought important to have, including, so far chance to escape conviction, but to give to the as appeared, all who saw or heard the jury all the circumstances of the homicide shooting. A regular term of the district court that were known to human beings, the best for said county began two days later, and the possible time for it was chosen, and the trial defendant was indicted April 4th, put on judye should be commended. rather thail (entrial April 7th, and on April 13th found guil- sured, for his course. Territory v. Kinney, ty by a jury of murder in the second degree. 3 X. M, 97, 2 Pac. 357; Territory v. Yee Dan, A motion for a new trial was denied, and he 7 N. M. 139, 37 l'ac. 1101; 9 Cyc. 107. was sentenced to imprisonment in the peni- The fourth assignment of error relates to tentiary for life.

the admission in evidence of a diagram made Frank Willis, Sam J. Vixon, and Clifton J.

by one of the witnesses, a physician who had

examined the body of Curtis, and which it Pratt, for appellant. Wm. C. Reid, Atty.

is claimed was shown to have been incorGen.. for the Territory.

rect, it certain other evidence offered by the

territory was true. This diagram was used ABBOTT, J. (after stating the facts a3

to illustrate the testimony of the witness and above). The first three assignments of error

to enable the jury to better understand it. are based on the claim that the defendant

It was not claimed to be absolutely accurate. was forced to go to trial without time for

Its incorrectness, if established, would af. preparation by counsel and the procurement

fect the weight, and not the admissibility, of op witnesses. Counsel for the defendant

the evidence. The entire testimony of that concede that the applications for continuance

or any other witness might have been incorwere addressed to the discretion of the court,

rect. or absolutely false, tested by other eviand that only an abuse of that discretion

dence in the case, without affecting its udwould warrant this court in reversing the missibility. It is for the jury to decide which trial court for its denial of the applications. of two conflicting statements in evidence they The case, although of the highest moment,

will credit. Jones on Ev. § 414. was simple. There was no denial that the

The filth, sixth, and seventh assignments of defendant killed Curtis, but it was claimed

error rest on exceptions taken to the admisthat the homicide was justifiable on the sion of evidence relating to the arts, words, ground of self-defense. The law of that de

and the condition of the defendant shortly feuse is not complicated or unfamiliar. More

before the homicide, and which were made time could have been needed only to obtain known to Curtis before the altercation bewitnesses, but it clearly appeared that, as a tween him and the defendant began, and result of the prompt action of the authori

were, in part at least, the subject of that alties, all who were on the train and present tercation. All those circumstances leading when the homicide occurred, and, indeed, all

up to and preceding the homicide, within not the passengers who could by any reasonable

exceeding an hour, as the evidence indicated, probability have thrown any light on the must have been fresh in the minds, and prematter, were present and testified. Delay in | sumably influencing the conduct, of Curtis all probability would have resulted in less

and the defendant, one or both, in the colevidence, rather than more, unless the wit- lision between them. Indeed, it was that nesses, most of whom were not residents of evidence which disclosed the motive of the New Mexico, had been detained an unreason- reprimand Curtis addressed to the defendable length of time. Surely they who were, ant, and for the attack he says Curtis made doubtless, were much incommoded by their on him, which forced him to shoot in selfdetention as it was, and had some rights | defense. To that extent the evidence was which the court was bound to consider. It favorable to the defendant, as without it did not appear, and is not here claimed, that Curtis' alleged angry aggressiveness toward there actually was any evidence in existence the defendant would have been inexplicable, which would naturally have led to a result anil perhaps incredible to the jury. That more favorable to the defendant if it had the evidence was admitted on other grounds been produced; but it is urged that there and was in part withdrawn was not reversimay have been such evidence. In view of ble error, if it was properly admissible on the course of procedure in criminal cases any ground. Jones on Ev. $$ 139, 33; Ilemprevailing in some parts of the United States, mingway v. Chicago, etc., Ry., 72 Wis. 42, 37 it is not very surprising to find that prompt-X. W. SO4, 7 Am. St. Rep. 323. ness in bringing on and marrying through a The admission of evidence that after the trial in a criminal cause should take on the arrest of the defendant il knife and matches aspect of abuse of discretion by the judge were found on his person or in his possesresponsible for it to those who have become sion is made the basis of the ninth assignaccustomed to regard delay, instead of the ment of error. It was admitted for the purpose of accounting for marks on his clothing

(14 N. M. 239) which he testified were caused by a shot he

IIANCOCK V. BEASLEY et al. fired at Curtis. Its admission for that pur- (Supreme Court of New Mexico. Aug. 28, 1907.) pose was, we think, proper.

1. APPEAL--REVIEW-FIXDINGS OF FACT. The instruction that a reasonable doubt is

Findings of fact of the trial court will not not a more possibility of innocence, which is be disturbed by this court, where they are based claimed to have been error, is well grounded upon substantial evidence to sustain such findin reilson and authority. State v. Garrison,

ings.

[Ed. Note. For cases in point, see Cent. Dig. 117 Mo. 548. 19 S. W. 508; State v. Darrah,

vol. 3. Appeal and Error. $ 3979.) 1.32 Mo. 722; Earll v. People, 73 Ill. 329;

2. NEW TRIAL – NEWLY DISCOVERED EVISmith v. People. 74 Ill. 14; Blashfield, Inst.

DEXCE. to Juries. 817, 832.

I motion for a new trial upon the ground The assignments of error from the twelfth

of newly discovered evidence is properly over

ruled, where such motion is not accompanied to the twenty-fifth, inclusive, omitting ta

by affidavit showing that the evidence claimed nineteenth, which was waived, relate to the 10 have been discovered would probably change right of self-defense and to justitiable homi- the result of the trial, and failing to show that cide, and are based on instructions given and

such evidence could not have been produced at

the trial with due diligence. instructions refused. But for the testimony of

[Ed. Note.-For cases in point, see Cent. Dig. the defendant that all the shots were fired vol. 37, New Trial, $$ 307-300.) before Curtis desisted from his assault on 3. APPEAI-OBJECTIOXS-WAIVER. him, those questions would hardly have had Evidence admitted without objection cannot a place in the case, since the evidence, aside

be complained of as error, where no motion is

made to strike it, even though it might have froin his, was to the effect that Curtis was

been rejected if objection had been made at the killed by a shot fired by the defendant when time. they were some distance apart, when he was (Syllabus by the Court.) retreating from the defendant with his back toward him, unarmed. and already twice

Appeal from District Court, Dona Ana

County: before Justice Frank W. Parker. badly wounded. Nevertheless, the instruct

Action by James F. Ilancock against tions on self-lefense and justifiable homicide gave the defendant the full benefit of his

George R. Beasley and Austin Beasley. testimony, and, besides, covered in his favor

Judgment for plaintiff, and defendants apevery point discussed in the brief here sub

peal. Affirmed. mitted in his behalf, with a single exception.

Morre & Paxton, for appellants. E. A. On those subjects they were full and com- Chaffee, for appellee. plete. So far as the statutes of the territory deal with them, they were followed; and

MANX. J. This cause was tried before so far as general principles were applied,

Hon. Frank W. Parker, of the Third judicial they were well founded. We do not think it

district, in the district court of Dona Ana necessary to consider separately more than the single objection to which we have refer

county; a jury having been waived by both red. The instruction which is to the effect

parties, as is shown by an order appearing that the right of self-defense does not exist

on page 7 of the record. So that the first,

error,

third, and fourth assignments of for one who purposely induces an attack upon himself in order to be able to kill his as

which question only the findings of fact of

the trial court, may be disposed of under sailant under the shield of self-defense is in substance what Blashfield & Hughes re

one general head, viz., whether there was commend in their work on Instructions to

any substantial evidence to support such

findings; it being well settled by this court Juries, and had the distinct sanction of this

that, when there is any substantial evidence court so rerently as 1902 in Territory v. Gonzales, 11 X. N. 301, 323, 68 l'ac. 925. State i

to support findings of fact made by the trial

court, this court will not disturb) such findv. Thomas. TS No. 327: State v. Hopper, 142

ings. The numerous cases in which this rule Mo. 178, HS. W. 272.

has been adhered to buy this court are cited As to the instructions which were refused,

by Mr. Justice Parker in the opinion of the it is too well settled to require discussion or

court in Candelaria v. Miera (N. J.) St Pac. citation of authorities that, even when such

1020. These assignments complain of the instructions are correct statements of the

findings of the trial court that the defendant law applicable in the case, it is not incum

George R. Beasley converted to his own use bent on the curt to give them. if the points involved are otherwise covered by appropri

12.7 lead of Angora goats, brimmed, some ate instructiens.

with a (loss and some with a bar C. of

the property of appellee, and in rendering The judgment of the trial court is affirmed.

julgment accordingly. ('ounsel on either

side quote at great length in their briefs MILLS, C. J., and PARKER, MAXX, ani from the evidence of the various witnesses, MFIE, JJ., concur. I'OPE, J., having tried ! which is quite roluminous and need not be the case in the district court, took no part set out here; but, while there is a conflict in this decision.

in the testimony (that offered on behalf

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