security of freedom of thought and action, and therefore of that independence so absolutely essential to the faithful discharge of the duties imposed upon that body, which if impaired or destroyed would be fatal to a vigorous administration of the criminal law. Proffatt on Jury Trial, 89; 17 Am. & Eng. Ency. of Law (2d Ed.) 1295; State v. Johnson, 115 Mo. 480, 22 S. W. 463; Elbin v. Wilson, 33 Md. 135; People. v. Thompson, 122 Mich. 411, 81 N. W. 344; Ex parte Sontag, 64 Cal. 525, 2 Pac. 402."

The judgment of the court below is reversed, and the cause remanded for a new trial on the issues raised by the plea in abatement.

L. A. Meredith was convicted of larceny, and appeals. Affirmed.

Toombs & Pace, for appellant. W. C. Reid, Atty. Gen., for the Territory.

ABBOTT, J. The defendant, here the appellant, was found guilty by a jury at the March term, 1906, of the Fourth district court for Union county, Mills, C. J., presiding, of the larceny of one head of neat cattle, a bull calf, the property of Joseph Davis. The calf was nearly a year old, was branded, and had, besides, certain flesh and skin markings described in the evidence. The errors assigned relate to the admission of certain evidence, to certain instructions given to the jury, and others refused.

The first error alleged is that the court improperly admitted in evidence a certified copy of the brand of Joseph Davis, who claimed 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 statute (section 107, Comp. Laws 1897), which provides that no brands except such as are duly recorded shall be recognized in law as evidence of ownership, does not limit the time to which such proof shall relate. It must have been the case, when that law was enacted, that many cattle in the territory bore brands which had not been recorded. One object of the law was to have them recorded. On the contention of the appellant,

2. LARCENY CATTLE THEFT EVIDENCE BRAND.

In the trial of one charged with the larceny of a calf bearing a certain brand, which the owner did not have recorded until after the time of the alleged larceny, evidence is admissible that the owner began to use the brand 10 years before in Utah, and since then had been using it at the range where it was claimed the larceny occurred, as bearing on his good faith in claiming the brand and having it recorded as his own, and on the felonious intent of the appellant in taking the calf.

3. WITNESSES-EXAMINATION-LEADING QUES

TIONS.

Leading questions may be put to witnesses at the discretion of the trial judge, and no abuse of that discretion is shown by the record in this

cause.

passage of the law could not have been proved by brand, although record was made at the earliest possible moment after the law went into effect; and it must often happen that cattle come into the territory which were branded elsewhere by their owners. Can it be that such an owner, who uses due diligence to record his brand after his arrival here, is forbidden to prove his ownership against a thief who takes his cattle in the time which must elapse before his brand could arrive at the place of record? That certainly is not a reasonable view to take of the legislative intent. 2 Cyc. 325–364; Chesnut v. People, 21 Colo. 512, 42 Pac. 656; Turner v. State, 39 Tex. Cr. R. 322, 45 S.

The appellant next contends that it was error to admit evidence that Davis had used the same brand 10 years before in Utah. It was charged that the appellant, who lived

5. SAME.

When a specification of the material allegations of an indictment would be practically no more than a repetition of the language of the indictment itself, it is not necessary, and ordinarily would not be helpful to the jury, for the court to include such a specification in its instructions.

(Syllabus by the Court.)

Appeal from District Court, Union County; before Justice William J. Mills.

question from the range where it was kept by the owner, converted it to his own use, and had it killed, and that he did so with the knowledge and intent essential to make his acts larceny. Evidence of the extent and length of time of Davis' use of the brand was material and relevant on the question of the appellant's probable knowledge of it as Davis' brand. Besides, the fact that the brand was not recorded until after the alleged larceny, as it was urged in behalf of

the appellant, may have detracted from its probative force and put in doubt the good faith of Davis in claiming it as his brand. Evidence that he had long used it was relevant on that point.

The third error alleged by the appellant is that the trial judge asked a witness for the territory a leading question. It is well established that the court may, in its discretion, permit leading questions, and that only an abuse of that discretion will warrant an appellate court in declaring it reversible error. Jones on Evidence, § 819; Greenleaf on Evidence (Redf. Ed.) § 435. It is equally well established that a trial judge can himself propound questions to witnesses (Jones on Ev. § 814), and it would follow beyond doubt that they might be leading questions. question asked by the court in the trial of the case at bar was obviously intended to clear up a misunderstanding between counsel for the appellant and a witness for the territory as to certain testimony given on cross-examination which was susceptible of two meanings. The witness had already in effect given the explanation which it is claimed the question of the court suggested, and the answer to that question did no more than make clear what might otherwise have remained somewhat obscure.

The

The ninth assignment of error is that the court failed to instruct the jury in relation to the law of accomplices. As the basis of that contention, it is asserted that one of the principal witnesses against the appellant was an accomplice on his own testimony. The evidence does not, we think, sustain that claim, and the court was not bound to give

instructions on that point, beyond the general one that they (the jury) were the sole judges of the weight of the evidence and the credibility of the witnesses, and that, in passing on the credibility of any witness or the weight to be given to his testimony, they should consider the relationship of the parties, if any, and the interest which he may have in the result of the case.

It is claimed that the court should have given the jury a definition of larceny, and, while that might well have been done, it cannot be said that it would have added anything essential to the obvious meaning of the charge in the indictment that the defendant "did steal, take, and knowingly kill onehead of neat cattle, the property of Joseph Davis." Of the truth of that charge the court instructed the jury they must be satisfied beyond a reasonable doubt in order to find the defendant guilty. The material allegations were all embraced in it, and were contained in so few words that it would have tended to confusion, rather than clearness, to restate them in another form.

The remaining assignments of error are not of a nature to call for specific examination. There was abundant evidence, if believed, to warrant, if not to require, a verdict of guilty, and this court cannot say the jury should not have believed the witnesses for the territory in preference to those of the defendant.

Judgment affirmed.

PARKER, MANN, McFIE, and POPE, JJ., concur. MILLS, C. J., having tried the case in the district court, did not take part in this decision.

(14 N. M. 262)

TERRITORY v. PRICE. (Supreme Court of New Mexico. Aug. 28, 1907.) 1. CRIMINAL LAW-CONTINUANCE.

There was no abuse of discretion by the trial court in refusing the continuance prayed for by the defendant, but rather, under the circumstances, was its course in requiring trial without delay commendable.

Ed. Note.--For cases in point, see Cent. Dig. vol. 14. Criminal Law, § 1315.] 2. SAME EVIDENCE.

A diagram, offered in evidence in connection with and to illustrate the testimony of the witness for the territory who made it, was properly admitted, although there was other evidence for the territory tending to show that the diagram was incorrect in some particulars. [Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1024.]

3. HOMICIDE--EVIDENCE.

Evidence that the defendant was intoxicated at the time of the homicide with which he was charged, and that shortly before he, being a news agent on the train on which the man he killed was conductor, had done certain things which were reported to the conductor and were the subject of the altercation between them which terminated in the shooting of the conductor, embodied circumstances forming a part of the res gestæ, and was properly admitted.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Homicide, § 341.]

4. CRIMINAL LAW-REASONABLE DOUBT.

A reasonable doubt is not a mere possibility of innocence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1267.] 5. SAME-INSTRUCTIONS.

A proper instruction to the jury on the subject of reasonable doubt, when once given and made applicable to every material allegation against the defendant, need not ordinarily be repeated as a part of other separate instructions.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, § 1991.]

6. HOMICIDE-EVIDENCE.

Evidence was properly admitted that the defendant had in his possession materials with which he could have produced effects on his clothing which he testified were caused by one or more of the shots he fired.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 26, Homicide. § 364.]

7. SAME SELF-DEFENSE.

An instruction that one cannot invoke the law of self-defense, who arms himself with a loaded pistol and seeks, brings on, or voluntarily enters into a difficulty with another for the purpose and with the felonious intent of killing him, attacks such other person, his force is met with force in return, and as a part of the same transaction he does shoot and kill his opponent, was sufficiently favorable to the defendant. 8. CRIMINAL LAW-INSTRUCTIONS.

It is not error to refuse to give an instruction, even when it is a correct and appropriate statement of the law, if proper instruction is otherwise given on the question to which it relates.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Criminal Law, § 2011.]

(Syllabus by the Court.)

Error to District Court. Roosevelt County; before Justice William H. Pope.

Elmer L. Price was convicted of murder, and brings error. Affirmed.

The appellant, Elmer L. Price, was indicted by a grand jury of Roosevelt county, April 4, 1906, for the murder of Frank B. Curtis on March 30, 1906. Curtis on that day was the conductor, and Price the news agent, on the passenger train from Amarillo to Roswell, N. M., which was a few hours late, and so running at night, instead of by day, as usual. It appeared from undisputed evidence that it was reported to Curtis by passengers that the defendant was drunk, had sent a negro porter to passengers to sell his wares, and had been annoying a lady passenger in a Pullman car on the train; that Curtis remonstrated with him about it, charged him with being drunk, and threatened to put him off the train if he did not behave; and that a few minutes later, while on his way through the car where Price was standing between two ordinary car seats on which he had his wares and some other articles, he stopped, grasped Price by or near the throat, and, being much the larger and stronger man, shoved him toward or against the wall of the car, when Price fired three shots from a revolver he had, all of which struck Curtis, who died almost immediately. There was evidence in behalf of the territory that as Curtis was passing Price, as above stated, the latter took hold of his arm and partly drew a revolver; that as Curtis immediately turned he put the revolver out of sight; that Curtis was about to pass on, when the defendant again took hold of him by the lapel of his coat, when Curtis turned again, something was said between them, he grasped the defendant, and a shot was almost instantly fired; that Curtis staggered back and wheeled toward the door of the car; that as he did so another shot was fired; that Curtis passed, staggering, out of the door, which was no more than five or six feet distant, and had his hand on the knob of the door of the next car, toward which he was stooping or falling, when the defendant, who had stepped from between the car seats into the aisle behind Curtis, fired a shot into his back, which passed upward, probably through the heart, whereupon Curtis fell forward through the door, the knob of which he still held, into the next car, uttered two sharp exclamations, and was dead before any one could reach him. The defendant in his testimony denied that he touched Curtis or did anything as he was passing to attract his attention, and claimed that Curtis without any provocation stopped, again charged him with intoxication and misconduct, and, when he denied it, seized him by the throat, began choking him, jammed him against the side of the car, and threatened to smash his brains out. He said he fired three shots, but denied that he fired any shot into Curtis' back, or any shot after Curtis had released his hold and turned away from him. It happened that W. II. Cox, a deputy sheriff of Roosevelt county, was a passenger on the

train, and was in the car into which Curtis fell forward after he was shot. He took the defendant into custody immediately, and at Roswell, where the train stopped, detained as witnesses those whose testimony it was thought important to have, including, so far as appeared, all who saw or heard the shooting. A regular term of the district court for said county began two days later, and the defendant was indicted April 4th, put on trial April 7th, and on April 13th found guilty by a jury of murder in the second degree. A motion for a new trial was denied, and he was sentenced to imprisonment in the penitentiary for life.

Frank Willis, Sam J. Nixon, and Clifton J. Pratt, for appellant. Wm. C. Reid, Atty. Gen.. for the Territory.

ABBOTT, J. (after stating the facts as above). The first three assignments of error are based on the claim that the defendant was forced to go to trial without time for preparation by counsel and the procurement of witnesses. Counsel for the defendant concede that the applications for continuance were addressed to the discretion of the court, and that only an abuse of that discretion would warrant this court in reversing the trial court for its denial of the applications. The case, although of the highest moment, was simple. There was no denial that the defendant killed Curtis, but it was claimed that the homicide was justifiable on the ground of self-defense. The law of that defense is not complicated or unfamiliar. More time could have been needed only to obtain witnesses, but it clearly appeared that. as a result of the prompt action of the authorities, all who were on the train and present when the homicide occurred, and, indeed, all the passengers who could by any reasonable probability have thrown any light on the matter, were present and testified. Delay in all probability would have resulted in less evidence, rather than more, unless the witnesses. most of whom were not residents of New Mexico, had been detained an unreasonable length of time. Surely they who were, doubtless, were much incommoded by their detention as it was, and had some rights which the court was bound to consider. It did not appear, and is not here claimed, that there actually was any evidence in existence which would naturally have led to a result more favorable to the defendant if it had been produced; but it is urged that there may have been such evidence. In view of the course of procedure in criminal cases prevailing in some parts of the United States, it is not very surprising to find that promptness in bringing on and carrying through a trial in a criminal cause should take on the aspect of abuse of discretion by the judge responsible for it to those who have become accustomed to regard delay, instead of the

speedy trial guaranteed by the Constitution. as one of the valued and inalienable rights of the accused. It seems clear, however, that if the object of the trial in the case at bar was not to afford the defendant every chance to escape conviction, but to give to the jury all the circumstances of the homicide that were known to human beings, the best possible time for it was chosen, and the trial judge should be commended. rather than censured, for his course. Territory v. Kinney, 3 N. M. 97, 2 Pac. 357; Territory v. Yee Dan, 7 N. M. 439, 37 Pac. 1101; 9 Cyc. 167.

The fourth assignment of error relates to the admission in evidence of a diagram made by one of the witnesses, a physician who had examined the body of Curtis, and which it is claimed was shown to have been incorrect, if certain other evidence offered by the territory was true. This diagram was used to illustrate the testimony of the witness and to enable the jury to better understand it. It was not claimed to be absolutely accurate. Its incorrectness, if established, would af fect the weight, and not the admissibility, of the evidence. The entire testimony of that or any other witness might have been incorrect. or absolutely false, tested by other evidence in the case, without affecting its admissibility. It is for the jury to decide which of two conflicting statements in evidence they will credit. Jones on Ev. § 414.

The fifth, sixth, and seventh assignments of error rest on exceptions taken to the admission of evidence relating to the acts, words, and the condition of the defendant shortly before the homicide, and which were made known to Curtis before the altercation between him and the defendant began, and were, in part at least. the subject of that altercation. All those circumstances leading up to and preceding the homicide, within not exceeding an hour, as the evidence indicated, must have been fresh in the minds, and presumably influencing the conduct, of Curtis and the defendant, one or both, in the collision between them. Indeed. it was that evidence which disclosed the motive of the reprimand Curtis addressed to the defendant, and for the attack he says Curtis made on him, which forced him to shoot in selfdefense. To that extent the evidence was favorable to the defendant, as without it Curtis' alleged angry aggressiveness toward the defendant would have been inexplicable, and perhaps incredible to the jury. That the evidence was admitted on other grounds and was in part withdrawn was not reversible error, if it was properly admissible on any ground. Jones on Ev. $$ 138, 353; Hemmingway v. Chicago, etc., Ry., 72 Wis. 42, 37 N. W. 804, 7 Am. St. Rep. 823.

The admission of evidence that after the arrest of the defendant a knife and matches were found on his person or in his possession is made the basis of the ninth assignment of error. It was admitted for the pur

pose of accounting for marks on his clothing which he testified were caused by a shot he fired at Curtis. Its admission for that purpose was, we think, proper.

The instruction that a reasonable doubt is not a mere possibility of innocence, which is claimed to have been error, is well grounded in reason and authority. State v. Garrison, 147 Mo. 548. 49 S. W. 508; State v. Darrah, 152 Mo. 522; Earl v. People, 73 Ill. 329; Smith v. People. 74 Ill. 144; Blashfield, Inst. to Juries. 847, 852.

The assignments of error from the twelfth to the twenty-fifth, inclusive, omitting the nineteenth, which was waived, relate to the right of self-defense and to justifiable homicide, and are based on instructions given and instructions refused. But for the testimony of the defendant that all the shots were fired before Curtis desisted from his assault on him, those questions would hardly have had a place in the case, since the evidence, aside from his, was to the effect that Curtis was killed by a shot fired by the defendant when they were some distance apart, when he was retreating from the defendant with his back toward him, unarmed. and already twice badly wounded. Nevertheless, the instructtions on self-defense and justifiable homicide gave the defendant the full benefit of his testimony, and, besides, covered in his favor every point discussed in the brief here submitted in his behalf, with a single exception. On those subjects they were full and complete. So far as the statutes of the territory deal with them, they were followed; and so far as general principles were applied. they were well founded. We do not think it necessary to consider separately more than the single objection to which we have referred. The instruction which is to the effect that the right of self-defense does not exist for one who purposely induces an attack upon himself in order to be able to kill his assailant under the shield of self-defense is in substance what Blashfield & Hughes recommend in their work on Instructions to Juries. and had the distinct sanction of this court so recently as 1902 in Territory v. Gonzales, 11 N. M. 301, 323, 68 L'ac. 925. State v. Thomas. 78 Mo. 327: State v. Hopper, 142 Mo. 178. H S. W. 272.

As to the instructions which were refused, it is too well settled to require discussion or citation of authorities that, even when such instructions are correct statements of the law applicable in the case, it is not incumbent on the court to give them. if the points involved are otherwise covered by appropriate instructions.

The judgment of the trial court is affirmed.

MILLS, C. J., and PARKER, MANN, and McFIE. JJ., concur. POPE. J., having tried the case in the district court, took no part in this decision.

(14 N. M. 239)

HANCOCK г. BEASLEY et al. (Supreme Court of New Mexico. Aug. 28, 1907.)

1. APPEAL-REVIEW-FINDINGS OF FACT.

Findings of fact of the trial court will not be disturbed by this court, where they are based upon substantial evidence to sustain such findings.

[Ed. Note. For cases in point, see Cent. Dig. vol. 3. Appeal and Error. § 3979.]

2. NEW TRIAL-NEWLY DISCOVERED EVIDENCE.

A motion for a new trial upon the ground ruled, where such motion is not accompanied of newly discovered evidence is properly overby affidavit showing that the evidence claimed to have been discovered would probably change the result of the trial, and failing to show that such evidence could not have been produced at the trial with due diligence.

[Ed. Note. For cases in point, see Cent. Dig. vol. 37. New Trial. $$ 307-309.] 3. APPEAL OBJECTIONS-WAIVER.

Evidence admitted without objection cannot be complained of as error, where no motion is made to strike it, even though it might have been rejected if objection had been made at the time.

(Syllabus by the Court.)

Appeal from District Court, Dona Ana County; before Justice Frank W. Parker. Action by James F. Hancock against George R. Beasley and Austin Beasley. Judgment for plaintiff, and defendants appeal. Affirmed.

Morre & Paxton, for appellants. E. A. Chaffee, for appellee.

MANN, J. This cause was tried before Hon. Frank W. Parker, of the Third judicial district, in the district court of Dona Ana county; a jury having been waived by both parties, as is shown by an order appearing on page 7 of the record. So that the first, third, and fourth assignments of error, which question only the findings of fact of the trial court, may be disposed of under one general head, viz., whether there was any substantial evidence to support such findings: it being well settled by this court that, when there is any substantial evidence to support findings of fact made by the trial court, this court will not disturb such findings. The numerous cases in which this rule has been adhered to by this court are cited by Mr. Justice Parker in the opinion of the court in Candelaria v. Miera (N. M.) 84 Pac. 1020. These assignments complain of the findings of the trial court that the defendant George R. Beasley converted to his own use 125 head of Angora goats, branded, some with a cross and some with a bar C. of the property of appellee, and in rendering judgment accordingly. Counsel on either side quote at great length in their briefs from the evidence of the various witnesses, which is quite voluminous and need not be set out here; but, while there is a conflict in the testimony (that offered on behalf