Volume 10 — New Mexico Reports

<p>Appeal from the district court of San Miguel county, Fourth Judicial District.</p> <p>Statement of the case by the court.</p> <p>This is a suit in chancery brought by the complainants to restrain the defendants from levying an execution on certain property, to collect a balance claimed to be due upon two separate judgments, which were recovered from the complainants as sureties upon two replevin bonds.</p> <p>The details of the controversy are as follows:</p> <p>In the. year 1887, Kohn Brothers of Chicago, recovered judgments in the district court of Mora county against W. -Sparks, Jr., C. N, Sparks, William Sparks and William Sparks & Sons, for the sum of $928.84, and costs of suit.</p> <p>In the same year, Kohn Brothers took out an execution under the judgment and under it the sheriff of San Miguel county, New Mexico, levied on forty-four head of cattle and twelve horses as the property of the judgment debtors.</p> <p>Soon after these executions had been levied, John W. Sparks and James W. Sparks each filed a suit in replevin, John W- Sparks claiming to be the owner of the twelve head of horses, and James W. Sparks claiming to be the owner of the forty-four head of cattle. Under the writs issued in these suits the cattle and horses were taken from the sheriff of San Miguel county, who was the defendant in the two replevin suits. The appellees herein were the sureties upon the replevin bonds given in these suits.</p> <p>Afterwards, the plaintiffs dismissed the replevin suits and on May 30, 1888,. judgments were entered for the defendant, the value of the property and the damages being assessed by the court, and the plaintiffs were ordered to return the property to the defendant on or before June 30, 1888, at Las Vegas, New Mexico, the judgment in each case then continuing as follows:</p> <p>“And that in the event said property is not so' returned to said defendant by said plaintiffs, the said defendant do have and recover of said plaintiffs the sum of-, the amount of the assessed value thereof, and damages so assessed as aforesaid, and that the said defendant do have execution therefor, and it appearing to the court that J. B. Wasson and James T. Johnson are securities on the replevin bond herein; it is further considered and adjudged by the court that said defendant recover of said James T. Johnson and J. B. Wasson, securities as aforesaid, the said sum of-, and that execution issue therefor, in the event said property is not returned to said defendant as aforesaid, and by him accepted in lieu of said sum of-so adjudged against said plaintiff and said securities as aforesaid.”</p> <p>By agreement of the parties, the turning over of the cattle and horses, otherwise than by range delivery, was postponed until the September roundup of 1888, and one T. B. Simmons, was, at the request of the sureties on the replevin bond, appointed a deputy sheriff by the sheriff of San Miguel county, and he gathered and turned over to such sheriff in Las Vegas, before any levy of execution was made in the replevin suits, ninety-seven head of cattle and fourteen horses.</p> <p>After this stock was turned over to him, the sheriff levied on and sold the same, and the sums realized from such sales were credited on the judgments recovered, and a balance being claimed to be yet due, execution was taken out against the sureties on the replevin bonds, and placed in the hands of the sheriffs of San Miguel and Mora counties, with instructions.to collect the balance due, the intention being to collect from the sureties on the replevin bond, and out of it to pay the uncollected sum due on the judgment obtained by Kohn Brothers.</p> <p>To restrain such collection the complainants and appellees herein, instituted proceedings and obtained an injunction, which on final hearing was made perpetual, restraining the sheriffs of San Miguel and Mora counties from collecting such balance from said sureties. From this decree the defendants, appellants herein, appeal to this court.</p>

<p>Appeal from District Court of San Miguel County.</p> <p>The facts will appear in the opinion of the court.</p>

Petition for a writ of habeas corpus sustained. Statement of the case by the court. By act approved March 15, 1899, the Territorial Legislature attempted to tax the sale of coal oil and its products, the pertinent provisions of said act, being as follows: “Sec. 2.

<p>SYLLABUS BY THE COURT.</p> <p>1. Appellate — Practice—Findings of Trial Court. The findings of fact made by a judge who decides a case without a jury, are entitled.to as much if not more consideration than the findings of a master or referee, and where the decree based thereon is not manifestly wrong, the same will not be disturbed.</p> <p>2. Practice, Trial — Appointment of Interpreter. The appointing of an interpreter is in the discretion of the court, and is not ap-pealable.</p> <p>3. Acequia — Right to Water Flowing Through. The failure to work an acequia under the laws of the Territory regulating the same, will not justify those who have no interest therein in wrongfully appropriating water flowing through it.</p>

<p>Appeal from the District Court of Mora county, Fourth Judicial District.</p> <p>Facts are stated in the opinion.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Territorial Finances — Fiscal Year. — As relating to Territorial finances, December, 1897, and January and February, 1898, fell within the forty-eighth fiscal year.</p> <p>2. Territorial Auditor — Mandamus On. — The Territorial Auditor is not compellable, by mandamus, to draw his warrant, for services incurred in transporting convicts to the Territorial penitentiary and rendered during the forty-eighth fiscal year by the sheriff of Socorro county, against the particular fund appropriated for like services during the forty-ninth fiscal year.</p>

' Appeal from the District Court of Bernalillo County, Second Judicial'District. Facts appear in the opinion. i. The court erred in denying defendant the right of cross-examination of the witness, McKinley, as to the facts on which he based his statement that plaintiff was the owner of. the goods in question on April 14, 1896. This point is raised by and fully set forth in the first five assignments of error.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Referee’s Finding — Effect of. — A finding of fact made by a referee is equivalent to the special verdict of a jury, and can not be disturbed unless the evidence is manifestly insufficient to support it.</p> <p>2. PRESCRIPTION — What Is and Its Effect. — Uninterrupted, open, visible, notorious, exclusive and adverse possession for more than ten years before suit instituted of a tract of land embraced within the Pueblo of Nambe, entry being made under an alleged deed of conveyance from said Pueblo long prior to the act of confirmation by Congress of said Pueblo’s grant, vests a perfect- title by adverse possession by virtue of the statute.</p>

Statement of the case by the court. The record in this case shows that the principal defendant, Epimenio Miera, was a storekeeper in Bernalillo county, and that in the course of trade he sometimes purchased wool; that Jose Jesus Archibeque purchased on credit from the said Miera, goods to the value of $32.00, and that at the time of said purchase he agreed to turn over to Miera certain wool which he was goina: to clip from bucks which he was herding; that on June 10, 1897,…

Facts are stated in the opinion. i. The sole question for review in this cause is this: Does the revenue derived from gaming licenses belong to the school fund of the district wherein it is collected, or to the general school fund which is distributed among the several school districts of the county?

Facts are stated in the opinion. 1. “The setting aside of a default is in the sound discretion of the court, a discretion intended to supply remedial justice in cases, the circumstances of which can not be clearly foreseen, and upon which the judge must act when they arise. This discretion is a legal discretion, not to be exercised through caprice, prejudice, ignorance or carelessness, but for the promotion of justice.

Statement of the case by the court. This cause was tried before Hon. H. B. Hamilton, at the time judge of the Fifth Judicial District, who decided the issues in favor of the defendants below, appellees in this court, and dismissed the bill with judgment for costs against complainants. Two of the complainants have brought the case to this court by appeal.

Facts are stated in the opinion. 1. The indictment is fatally defective, because it does not charge, in words, that the killing was unlawful. Our statute defines murder as the unlawful killing of a human being with malice aforethought. An indictment thereunder must charge, in words, that the killing was unlawful, that being an essential element of the crime. The indictment here fails to so charge. Territory v. Armijo-, 7 N. M. 571. 2.

<p>Appeal from the District Court of Chaves county, Fifth Judicial District.</p> <p>Facts are stated in the opinion.</p>

Statement of the case by the court. On July 6, 1899, J. H. Vaughn, the relator, filed in the district court for Santa Fe county a petition, alleging his appointment, on June 23, 1899, by the Governor of New Mexico, to the office of Territorial Treasurer, and his due qualification, and praying for an alternative writ of mandamus against Samuel Eldodt, the respondent, requiring him to surrender to the relator all the insignia and paraphernalia of the office of treasurer, then…

Facts are stated in the opinion. i. Does a part payment of principal or interest on a promissory note within the period of the statute of limitations toll the statute ? It has been the almost uniform ruling of all the English and American courts for 250 years in construing the statute of James I, c. 16, the parent of all our American statutes on the subject of limitations of actions, that a part payment takes the case out of the statute. 13 Am. and Eng.

Facts will appear sufficiently from the opinion ‘of the court. 1. When the right of plaintiff to exercise the power of eminent domain, in aid of the construction of its canal, is examined as a judicial question, it will be found not to exist.

'Appeal from the District Court of Bernalillo county, Second Judicial District. Facts are stated in the opinion. 1. We insist the court has fully adjudicated the principles of law applicable to this case, and that in accordance therewith judgment should have been rendered in favor of the defendant. When so adjudicated they become final so far as this case is concerned.

<p>syllabus by the court.</p> <p>1. Criminal Law — Selection of Jury — Section 9 of chapter 66, Laws of 1899, prescribes the manner in which talesmen shall be selected, and repeals section 941 of the Compiled Laws of 1897.</p> <p>2. Murder — Practice—Indictment—Conviction—One who upon the evidence is found to be guilty of murder, as an accessory at the fact, and therefore a principal in the second degree, may be convicted under an indictment charging him as principal in the first degree.</p> <p>3- Id. — An indictment sufficiently charging murder in the first degree will support a conviction of murder in the second degree.</p> <p>4. Criminal Law — Evidence.—Where there is a question whether an act was done by any person, any fact which supplies a motive for such an act is deemed to be relevant, and this is true although it may tend to show the accused guilty of another offense than the one charged.</p> <p>5. Murder — Conspiracy.—Where, upon a trial for murder, it appeared that the defendant, when the crime was committed, was in company with other persons, and the evidence left in douht whether the fatal shot was fired by the defendant or by any one of his companions, the testimony for the prosecution tending to prove, however, that the defendant participated with his companions in the resistance of arrest which resulted in the homicide; and where there was evidence tending to prove that the defendant and the other persons had, prior to the time of the homicide acted in consort as conspirators in the commission of a felonious assault upon and robbery of a railroad train, and had thereafter been for several days associated in a common endeavor to escape apprehension by flight. — Held: That instructions by the court to the effect that if the jury believed the defendant to be a party fo a conspiracy or common design to make violent opposition to arrest, and that in the carrying out of such conspiracy or common design the homicide in question was perpetrated by one of his co-conspirators, they might then hold the defendant guilty as if he himself had fired the fatal shot, and that if the jury believed the evidence as to the train robbery they were to consider it as a fact tending to show that a felony had been committed and that there was probable cause to believe that the defendant had taken part in such felony, and as evidence tending to show the motives of the different parties at the time the crime was committed, were proper and unobjectionable.</p> <p>6. Criminal Law — Assault Upon a Railroad Train. — An instruction that an “assault upon a railroad train, that is what is known as ‘holding up’ such train,” is a felony under the laws of the Territory. — Held: Under the circumstances of this case to be correct and unobjectionable.</p> <p>7. Criminal Law — Arrest of Felon. — The arrest of a felon may be justified by any person, without warrant, if a felony has in fact been committed, and an instruction laying down a contrary rule of law was properly refused.</p> <p>8. Criminal Law — Arrest of Felon — Notice to. — One who is about to arrest a felon need give only such notice of his intention as could be expected, under all the circumstances of the case, of one governed by reason, good faith and honest purpose. The question whether this rule of conduct was observed in any particular instance is a mixed question of law and fact to be determined ultimately by the jury under proper instructions from the court.</p> <p>9. Murder — Conspiracy—Principals.—One who is a party to a criminal conspiracy, the direct result of which is a murder perpetrated by one of his co-conspirators, and who is actually present assisting to the extent of his ability, in the accomplishment of a common design, is himself guilty of murder as principal, in the second degree, the extent and effectiveness of the assistance rendered by him being immaterial. ■</p> <p>10. Murder in Second Degree — Definition—Harmless Error. — An instruction defining murder in the second degree, though omitting therefrom any reference to the element of malice, is not erroneous, where the court in its charge had theretofore specifically instructed the jury that all murder was the unlawful killing of a human being with malice aforethought, either express or implied.</p> <p>11. Criminal Law — Coercion of Jury. — Remarks by the court to the jury that if they should not find a verdict by eight o’clock in the morning of the next day (Sunday) they would have to remain in their jury room until Monday morning, the court expecting to be absent from eight o’clock Sunday morning, until Monday morning, were not a coercion of the jury or prejudicial to the defendant in view of the state of the testimony and the length of the time the jury deliberated in this case.</p>

Appeal, from the District Court of Bernalillo County, Second Judicial District. Statement of the case by the court. In this action the plaintiff sought to recover of the defendant taxes to the amount of $5,069.16, the defendant admitting a large portion of this amount to be correct, paid the same into court and contested only a portion of the amount.

1. The following provisions of the statute were in for.ce at the time of the commencement of this action: “Creditors whose demands amount to one hundred dollars or more, may sue their debtors in the district court, by attachment, in the following cases, to wit: He H “Third.

Appeal, from the District Court of Bernalillo County, Second Judicial District. Statement of the case by the court. It appears from the record that the plaintiff below, Cana-van, made a coal entry of the S. E. J4 of the S. E. J4 of section 10, in township 15, N. of R. 18 W. of the New Mexico Pr.

Statement of Facts by the Court. An action in assumpsit was brought by Emil and Juan Bossut, against Frank Pursch and Jacob Kaskel, in the district court of Bernalillo county, to recover the sum of $3,180.

Statement of the case by the court. The appellee is a building and loan association, incorporated under the laws of New Mexico, whose principal place of business is the City of Albuquerque, Bernalillo county, and it is, therefore, a domestic corporation. In the spring of 1897 it made a return to the assessor of property for taxation, placing the total valuation at $5,335.00.

Error, to the District Court of Bernalillo County, Second Judicial District. Statement of the case by the court. Held: that a judgment in the former action in favor of the defendant constituted a bar to the subsequent action.” “Where the record in replevin fails to disclose what issues were litigated, a finding of the court against plaintiff, and judgment that he take nothing by his complaint, are conclusive of all issuable matters; and, in a…

Statement of the case by the court. On the first day of March, 1894, Jesus M. Castillo personally returned for taxation to the assessor of Bernalillo county property to the value of $16,360.00 and taxes were levied upon the same less two hundred dollars of an exemption allowed him as the head of a family. The amount of taxes levied upon said property for that year was $343.40.

Appeals from the District Courts of Union and Guadalupe counties. Statement of the case by the court. Held: as was required by the provisions of the statute, and and that it could not be tried at the next succeeding term for want of jurisdiction, that court says: “The design of the law is to secure an investigation of the matter in which the citizens generally, and the candidate claiming title to the office by election are deeply…

<p>Appeal from the District Court of Colfax County, fourth Judicial District.</p> <p>Facts are stated in the opinion.</p>

<p>Appeal from the District Court of Bernalillo County, Second Judicial District.</p> <p>Statement of facts in the opinion.</p>

<p>'Appeal from the District Court of Bernalillo county, Second Judicial District.</p> <p>Facts stated in the opinion.</p>

Statement of facts by the court. This suit was brought by appellant as plaintiff below against appellee for an accounting as to the amount due him for fees as assessor of Bernalillo county for the years 1893 and 1894, and for judgment for the amount found to be due upon such accounting. Issue was joined and upon proofs the master found the following facts: “2. That the total taxes assessed in said county for the year 1893, was $190,505.78. 3.

Statement of the case by the court. The appellant brought suit in the court below to recover from the appellee corporation three hundred dollars. Appellant alleges that he was employed to perform legal services; that he rendered services to the value of three hundred dollars and that the appellee promised to pay him, but failed and refused to do so.

Appeal, from the District Court of Bernalillo County, Second Judicial District. Facts are stated in the opinion. 1. The lien filed by plaintiff was against three mining claims, and also two Edison Gold Saving machines, and plaintiff claims to have performed fifty-two days and three hours’ labor and work upon all of said mining claims, but does not designate how much work was done on each of said claims.

<p>Appeal, from the District Court of Bernalillo County, Second Judicial District.</p>

Statement of the case by the court. This is' a suit brought by appellants in the court below against appellee for a mandatory injunction directing the abatement of an alleged nuisance.

Facts stated in the opinion. 1. Mechanic lien laws are to be liberally construed. Davis v. Alford, 94 U. S. 547; Flagstaff Mining Co. v. Cul-lins, 104 U. S. 176. 2. An architect who draws the plans and specifications for a building a'nd superintends the erection thereof under employment by the owner or his agent, “performs labor” upon a building within the meaning and language of section 2217 of Com.

Statement of facts by the court. • This action was commenced by appellee to compel the specific performance of a written contract entered into between appellant and one Mattie Jane Gillett, on April… Held: “When an action in law on a contract would be barred, a suit in equity for its specific execution will also be barred.” To the same effect, see following cases: Frame v. McKinney, 12 Am.

<p>SYLLABUS BY THE COURT.</p> <p>Homicide — Self-Defense—Threats.—In a trial for homicide, where the question whether the prisoner or deceased commenced the encounter which resulted in death is in any manner of doubt, evidence of uncommunicated general threats of violence made by deceased a few hours prior to the homicide against any one found in a certain situation, is admissible where there is any evidence of a hostile demonstration against the prisoner by the deceased at the time of the homicide, the deceased finding the prisoner within the scope of said threats; and where there is evidence tending to prove that within a year prior to the homicide there had been communicated to the prisoner numerous threats made against his life by deceased.</p>

Statement of facts by the court. On September X, 1898, A. M. Blackwell filed suit in the district court of Bernalillo county against the above named defendants, appellants herein.

Statement of facts by the court. The appellant filed a bill in equity in this case on the twenty-sixth day of May, 1894, to which the defendants demurred and the demurrer was sustained. Thereafter he filed an amended bill, to which a demurrer was also filed and sustained, and on January 6, 1896, the appellant, filed a “second” amended bill, to which a demurrer was also filed, and was sustained by the court on the sixteenth day of August, 1899, and the case dismissed.

Statement of the case by the court. The declaration in this case was filed in the district court of Bernalillo county on the twenty-third day of April, 1890. Held: that where a contract has been performed, and nothing remains to be done but to pay the amount due, a recovery may be had under the common counts, without declaring specially upon the contract.

<p>Appeal from decree in favor of defendants from Third Judicial District.</p> <p>Facts will appear sufficiently in opinion.</p>

Statement of facts by the court. The appellant, Arthur J. Maloy, qualified as treasurer of Bernalillo county on the first Monday of January, 1893, and he held the office for two years from that date. In July, 1893, the Albuquerque National Bank failed, the appellant having about $18,000.00 on deposit to his credit, as treasurer, at the time the bank closed.

<p>Original proceedings to disbar member of bar. Opinion on demurrer to information.</p> <p>Facts sufficiently appear in the opinion.</p>

Error on petition of plaintiff, from judgment in favor of plaintiff, to district court of Socorro county. Statement of the case by the court. Held: that the statute under discussion was void for the reason that it did so conflict.

<p>SYLLABUS BY THE COURT.</p> <p>1. Practice — Trials—Conflicting Evidence — Province of Court and Jury. — In a case involving conflicting locations of mining claims or mines, where it becomes material to ascertain the locations of the original monuments, and a large amount of conflicting evidence has been given before jury upon this and other issues joined; it’ is error for the court to take the question of fact from the jury and direct them to find for the defendant, it being the province of the jury to determine the weight of the evidence and credibility of the witnesses and determine the facts in the case.</p> <p>2. Estoppel — Facts in Proof. — In such case, where material and conflicting evidence is heard by a jury but the facts are not determined by them, nor admitted by the parties, an estoppel can not be sustained based upon said facts concerning which testimony was produced before the jury.</p>

The facts will appear sufficiently from the opinion of the court. We do not consider it necessary to enter into an extended discussion of the law governing this case. It may be useful, however, to call attention to the following: An admission of a partner relative to the firm business or property is binding on the firm to the same extent it would be on the individual if made in respect to his private business or property. Jones on Evid. Sec. 249.

Error from judgment of dismissal against plaintiff to district court of Bernalillo county. Statement of the case by the court. This action was commenced in the district court of Ber-nalillo county, in 1896. The declaration contains the common' counts and a paragraph alleging that the claim sued on had been assigned by the original claimant, J. A. Wiggin, to one W. H. Prior, the plaintiff in error herein. The defendant pleaded the general issue.

<p>Appeal from judgment of conviction against defendant from District court of Union county.</p> <p>The facts will appear from the opinion of the court.</p>

Statement of the case by the court. Five cases were brought in the district court of Ber-nalillo county to foreclose mechanics’ liens on some lots and an opera house erected thereon in the city of Albuquerque. Under a stipulation, the several causes were consolidated and a decree was entered in favor of the several lien claimants.

Error from a judgment for plaintiff to the District Court of Santa Fe County.

Facts will appear sufficiently from the opinion of the court. 1. Wagering contracts are void both at common law and by statute. While a few of the earlier English cases have in some instances upheld certain kinds of wagering contracts as valid at common law the later authorities have expressed a reluctance to follow the doctrine thus announced.

Statement of the case by the court. The pleadings in this case disclose that the claims of the parties are as follows, to wit: The plaintiff below, who is the appellee in this court, filed his complaint against the defendants, to compel Pietro Badaracco to convey to him certain lands described in the complaint, alleging that he had advanced money to said Pietro Badaracco to enable him to purchase the property in controversy, but that said Pietro Badaracco had no real…