Volume 24 — New Mexico Reports

Contest before Commissioner of Public Lands by Harry Dallas and others constituting the partnership of Dallas Bros., against R. E. Swigart and another. From a final judgment of the district court affirming the decision of the Commissioner of Public Lands in favor of contestees, contestants appeal. Leases of appellee are void because executed by State and delivered before the land was surveyed or the plat of survey approved by the Surveyor General.

Grover C. Johnson was convicted of murder in the second degree, and he appeals. Admission of testimony tending to prove character of deceased by proof of his reputation for morality and decency, was erroneous. 3 Bishop’s New Crim. Pro. 1598; Wharton’s Crim. Ev. 251; Moore v. State, 79 S. W. 565; Martin v. State, 70 S. W. 973; Everette v. State, 18 S. W. 674; Melton v. State, 83 S. W. 822; Graves v. State, 14 Tex.

<p>SYLLABUS BY THE' COURT.</p> <p>1. The word “district,” as used in section 14, art. 2, state Constitution, is descriptive of the territory which in legal contemplation comprises the visne over which the jurisdiction of the court for the purpose of prosecutions for crimes and misdemeanors extends.</p> <p>P. 17</p> <p>2. Where the venue in a criminal case is changed at the instance of the accused, he will not he heard to question its regularity, after selecting for himself the place of trial.</p> <p>P. 20</p> <p>3. Alleged remarks of the trial court supposed to have been made to the jury in another case will not he considered when the same has not been authenticated by having been made a part of the record by bill of exceptions or otherwise.'</p> <p>P. 22</p> <p>4. Where there is substantial evidence to support the vedict of a jury, the same will not be disturbed on appeal.</p> <p>P. 22</p>

Lonnie Hite was convicted of killing a calf belonging to another, and he appeals. Reversed, and cause remanded for new trial.

• Bobert L. Duckett was convicted of assault with intent to rape, and he appeals.

<p>SYLLABUS BY THE' COURT.</p> <p>In order to constitute the crime of buying or' receiving stolen goods, under section 1538, Code 1915, it is essential that the accused should have knowledge that the same had been stolen.</p>

<p>Original application for writ of habeas corpus by Elmer E. Hamm.</p>

Rule to show cause why leave should not be granted to State of New Mexico, on relation of J. N. Cobb and others, to file an information in the nature of quo war-ranto against A. C. Raithel and others, as members of the Board of Education of the Village of Deming. From an order discharging the rule, relators appeal. STATEMENT OP PACTS.

<p>SYDDABUS BY THE COURT.</p> <p>1 The instructions of the court must he considered as a whole.</p> <p>P. 50</p> <p>2. Expressions used in instructions to juries should he considered as qualified hy the context and other instructions.</p> <p>P. 50</p> <p>3. A requested instruction going to the weight of evidence was propqrly refused; that being a question for the jury.</p> <p>P. 47</p>

<p>Appeal from District Court, Roosevelt County; McClure, Judge.</p> <p>Suit by William Elliott against Everett Rich.</p>

George B. Moss was convicted of murder in the second degree, and be appeals. Court should have given requested instruction on mutual combat. Whart. on Homicide, Sec. 167, 175; 21 Cyc. 1059, 1053, 1032; Michie on Homicide, 1488; Seldon v. State, 18 S. W, 459. Instruction pointing out defendant as a witness is error.

<p>Appeal from District Court, Union County; Leib, Judge.</p> <p>James C. Pruett was convicted of voluntary manslaughter, and lie appeals.</p>

• Suit by Ed. S. Seay and other against the Board of Education of the City of Roswell and others. Demurrer to complaint overruled, and judgment for plaintiffs, and defendants bring error. As the several causes of action united in the complaint did not affect all the parties to the action, they were improperly united and the court should have sustained the demurrer.

<p>Appeal from District Court, Curry County; Richardson, Judge.</p> <p>Action by Alice B. Skala against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.'</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Affirmative allegations in an answer, which are in effect only denials, are not new matter. That is not new matter in an answer which might have been shown under a general denial. Pleadings examined and held that answer did not state new matter, and consequently a reply was not necessary To form the issue.</p> <p>P. 86</p> <p>2. The record on appeal must show such portions of the record of the trial court as are necessary for a consideration of the questions presented. This duty devolved upon the ap-pellee with reference to proposition stated in the opinion.</p> <p>P. 88</p>

Action by H. G. Worthington against Sarah Ann Tip-ton and others. Demurrers to answer overruled, judgment rendered for defendants upon the pleadings, and plaintiff appeals. STATEMENT OP PACTS. This action was brought to foreclose a mortgage on certain land situate in the county of Roosevelt. The complaint was in the usual form, and a copy of the mortgage sought to be foreclosed was attached and made a part thereof.

Action of forcible entry and detainer by C. E. Tiet-jen against L. McCoy. Prom a judgment of the district court, on appeal from a judgment of justice court in favor of the plaintiff, awarding plaintiff damages only, he appeals. STATEMENT OP PACTS.

Action by Henry W. Osborne against William'Barto Osborne and others. Judgment for plaintiff, and defendants appeal. • STATEMENT OF FACTS.

<p>SYLLABUS BY THE COURT.</p> <p>1. Where the record on appeal does not contain the transcript of evidence; the findings of the trial court are conclusive.</p> <p>P. 101</p> <p>, 2. Reguested findings of - fact and conclusions of law are not part of the record proper, unless ordered to be filed by the court. ’ , P. 101</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. By act of July 22, 1854 (Act Cong. July 22, 1854, c. 103, 10 Stat. 308), sections 16 and 36 of each township in the territory of New Mexico were reserved for the purpose of being applied to schools in said territory. By act of July 27, 1866 (Act Cong. July 27, 18g6, c. 278, 14 Stat. 292). Congress provided for the incorporation of the Atlantic & Pacific Railroad Company, which said corporation proposed to build a railroad through the then territory of New Mexico. Section 2 of the act gave the said railroad company a right of way through the public lands of the United States, “including all necessary grounds for station buildings, workshops, depots, * * * switches,” etc. On January 15, 189], (Act Cong. Jan. 15, 1891, c. 73, 26 Stat. 718), an act was passed for the relief of the inhabitants of Gallup, N. M., which said act authorized the probate judge of Bernalillo county to enter in trust for the occupants and inhabitants of said town, for town-site purposes, the southeast quarter of section 16, township 15 north, range 18 west, subject to the provisions of sections 2387, 2388, and 238,9 of chapter 8 of the Revised Statutes of the United States (U. S. Comp. St. 1916, §§ 4791-4793). Pursuant to- this act the probate judge of Bernalillo county, on June 17, 1891, applied to enter said land. Application was made for the full quarter section. The receiver issued to said probate judge a final receipt, which had noted thereon that it was “subject to the station grounds and right of way of the Atlantic & Pacific Railroad Company, containing 27.72 acres of land, as shown by survey map on file in this office.” The patent excepted such station grounds, containing 27.72 acres, frota the operation thereof. In, 1884 the Atlantic & Pacific Railroad Company filed with the secretary of the interior a map showing its claim to said station grounds.</p> <p>Held, (a) that the relief act of January 15, 1891, did not grant to the probate judge of Bernalillo county such quarter section of land, but simply authorized him to enter the same in trust for the occupants and inhabitants of the town of Gallup for town-site purposes; that such entry was subject to the provisions of the general town-site law; that, until such entry was made pursuant to the provisions of such law, the probate judge of such county took no title to the land. P. 109</p> <p>(b) Under the provisions of section, 2388, R. S. U. S., the probate Judge was only authorizel to enter land, the title to which was in the United States, at the date of the application; that it was incumbent upon the proper officers of the land department of the United States, upon application being made to enter lands for town-site purposes, to determine whether or not such lands were subject to entry, and that such determination on the part of said officers was judicial in character.</p> <p>(c) When the application was made herein the officers of the land department at Santa Pe determined that the title to the right of way and station grounds of the Atlantic & Pacific Railroad Company had vested in' such company, consequently had passed from the United States, and the action’ of such officers in so determining is not subject to collateral attack.</p> <p>P. 109</p> <p>2. The act of July 22, 1854, reserving sections 16 and 36 from entry for the purpose of being applied to schools of the-territory, did not convey such section to the territory, but amounted simply to a reservation thereof, and the. title to-such remained in the United States, and such lands were a, part of the public lands of the United States, reserved from entry, however. ' The granting act to the Atlantic & Pacific: Railroad Company of lands for right of way and station purposes granted a right of way over public lands of the United States, and contained no exceptions or reservations. Where it clearly appears from the statute that the term “public lands” is intended to include lands which have theretofore; been reserved by Congress for a specific purpose, such intention will prevail.</p> <p>P. 115</p> <p>3. A railroad company, by complying with the act of Congress, giving it a right to lands for right of way and station purposes, acquires more than an,easement in such lands. To say the least, it takes a limited fee therein, to which no other person can acquire any right or title, either by adverse possession or by grant from the company itself. A claim of lots in a town site which embraces a part of such right of way and station grounds is not entitled to a deed from the probate judge including any portion thereof.</p> <p>P. 120</p> <p>4.While the railroad company wp,s granted “necessary grounds” for the purposes named, under which grant it filed a map with the land office showing its claim to designated land for such purpose, which claim has ever since been acquiesced in by the United States government, a private individual cannot litigate with the railroad company the question of the necessity of such land for the purpose claimed.</p> <p>P. 124</p> <p>5. The question of forfeiture for nonuser could only he asserted by the United States, either by legislative declaration or in a proper judicial proceeding, and until such forfeiture has been asserted the land would not revert to the United States, but the title would remain in the grantee.</p> <p>P. 126</p>

Suit for injunction by H. A. Jastro and A. B. Mc-Millen against Elias Francis, Narciso Francis, and others. From a judgment awarding permanent injunction and damages, defendants appeal. The remedy of injunction will not be permitted to be used to circumvent the national anti-fence law. Healy v. Smith, 83 Pac. 583; Richards v. Sanderson, 89 Pac. 769; Hill v. Winkler, 21 N. M. 5; 23 Stats. (U. S.) 321; Buford v. Haute, 133 Ü.

Action by Bernard Boes against David Howell. Judgment for plaintiff, and defendant appeals. Owner of motor car not liable for injuries resulting from negligent driving of car by son, merely because of ownership, or that son was permitted to drive same, or because driver was his son. Maher v. Benedict, 123 App.

Action in replevin by Clyde A. Patterson against C. G. Chaney. From judgment for' plaintiff, defendant appeals.

Action by J. E. Tietjen against L. McCoy in forcible entry and detainer before a justice of tbe peace. From a judgment for plaintiff, defendant appealed to tlie district court where, on trial de novo, judgment was rendered for plaintiff, and defendant appeals. STATEMENT OF FACTS. Tbe action' is in forcible entry and detainer brought in tbe justice of tbe peace court for precinct No. 3 of McKinley county by appellee.

, JJaiidamus by the State, on relation of Constancio Miera, against N. A. Field, Treasurer of Socorro county, Demurrer to petition sustained, and judgment entered for defendant, and relator appeals. County commissioners may exercise such powers as arise by necessary implication from those expressly conferred upon them.

Suit by the State of New Mexico against John F. Simms. Judgement for plaintiff, and defendant appeals. STATEMENT OP PACTS. This case is Submitted upon an agreed statement of facts aS follows: John F. Simms is the owner of lots 3 and 4 in block 8, Perea addition to Albuquerque, N. M., and the taxes for 1915 and 1916 upon said real estate have not been'paid.

<p>Application by tbe State of New Mexico on relation of Charlie Parks and John Parks, for an alternative writ of prohibition against Raymond R. Ryan, District Judge, and W. F. Shriver, Sheriff of Grant County.</p>

■ Appeal from District Court, Doña Ana County; Med-ler, Judge. Jesse O. Starr and Charles Schmidt were convicted of murder in the second degree, and from the judgment sentencing them in accordance with, tbe verdict, they appeal. STATEMENT OP PACTS. The appellants, Jesse 0.

Mech-em, Judge. Action for injunction by the City of Socorro against George E. Cook. From judgment perpetuating an injunction, defendant appeals. It has often been held that the decisions rendered by an officer or a board of state or municipal officers, when acting judicially, has the force and effect of a judgment.

Suit by Security Trust & Savings Bank against Sam Ravel. Judgment for defendant and plaintiff appeals. Court erred in permitting amendment of pleading setting up defense of release. Sec. 4162, Code 1915; Loretto etc. Soe. v. Garcia, 136 Pac. 858; Candalaria v. Miera, 134 Pac. 829. No error in permitting trial amendment. Subsec. 77 Sec. 4143, subsec. 96 Sec. 4162, subsec. 107 Sec. 4173, Code 1915; Bogie v. Nolan, 96 Mo. 85; Butler v. Edgarton, 15 Ind. 15.

Suit by Vollie C. Musgrave against John B. McManus, Superintendent of the State Penitentiary. Demurrers to complaint sustained and cause dismissed, and plaintiff appeals. The statute requiring actions for damages for injury to the person to be brought within three years of the date of the injury doe's not apply to a convict because he is under legal disability. Sections 3350, 3352, Code 1915; Angelí on Dims. 203; 31 Jac. 1; Browning v. Browning, 3 N. M. 659; 1 Chitty Crim.

Action in replevin by D. H. Moore against A. 0. Collins and the Roswell Hardware Company. Judgment for defendants upon a directed verdict, and plaintiff appeals. STATEMENT OP PACTS. This is an action in replevin, the complaint setting up that on the 14th day of April, 1916, the plaintiff was the owner of a certain spraying machine; that on or about the — day of September, 1916, the defendant A. 0.

<p>SYLLABUS BY THE COURT.</p> <p>An “inhabited bouse,” as used in section 1705, Code 1915, is a bouse which, at the time oí the discharge of a deadly 'weapon within 300 yards thereof, is occupied by persons as a ■dwelling.</p> <p>Hanna, C. J., dissenting.</p>

Suit for partition by Trinidad Baca and others against the Unknown Heirs of Jacinto Palaez and others, in which C. C. Catron, by leave of court, filed a petition of intervention and answer. From an order striking the petition in intervention and answer, inter-vener appeals.

<p>SYLLABUS BY THE COURT.</p> <p>Section 15, chapter 43, Laws 1917, interpreted and held, to have the effect of abating an appeal or writ of error where no cost bond is filed within the time required by the statute.</p>

Separate actions by Charles Buries, by Robert H. Mc-Tavish, and by Nello Bellomini, against R. L. Roberts and others. From judgments dismissing the complaints on defendants’ motion, plaintiff in each case appeals.

Action by the First Savings bank & Trust Company of Albuquerque against Jeanette W. Flournoy. From an order denying plaintiff’s motion to strike part of defendant’s evidence, and from an order requiring plaintiff to bring in another party defendant within a certain time, and otherwise dismissing the action, plaintiff appeals.

. Appeal from District Court, Grant. County; Ryan, Judge. Action by the American National Bank of Silver City, N. M., a corporation, against E. J. Wood, E. C. De Moss, and Elizabeth De Moss, partners doing business under the firm name of Wood & De Moss, and against Wood and De Moss. Judgment for plaintiff, against defendants Wood and Elizabeth De Moss, and they appeal. Affirmed as to Wood', and reversed as to Elizabeth De Moss, with instructions to grant her a new trial.

<p>•Appeal from District Court, Curry County; Richardson, Judge.</p> <p>Action by J. W. Morgan against C. F. Doughton. Judgment for plaintiff, and defendant appeals.</p>

Suit by Royal Jackman against tlie Atchison, Topeka & Santa Fe Railroad Company. Judgment for defendant, and plaintiff appeals. Act of Congress granting right of way expressly excepted lands reserved from sale, and court cannot extend act to apply to reserved lands. Swift v. Luce, 27 Me. (14 Shep.) 285; in re Hughes, 1 Bland.' 46; in re Ticknor’s Estate, 13 Mich. 44; Tompkins v. First Nat.

<p>SYLLABUS OF THE COURT.</p> <p>1. During tbe interim between tbe selection of indemnity on lieu lands by tbe state and tbe approval of tbe selection by tbe Secretary of tbe Interior, under tbe provisions of tbe Enabling Act of Congress (Act Cong. June 20, 1910, c. 310, 36 Stat. 557), tbe state bas sucb an interest in tbe lands covered by tbe selections as entitled it to lease tbe same, and tbe lessee may maintain an injunction against trespassers upon the same. P. 304</p> <p>2. Sections 4636 and 4637, Code 1915, held' not to apply to lands covered by indemnity on lieu selections by the state. P. 311</p> <p>3. Sections 5190, Code 1915, requires lands to be leased by the state at not less than 2 per cent, of their true value, to be determined by appraisement. Tbe minimum purchase price fixed in section 10 of tbe Enabling Act for lands selected by tbe state and lying east of a certain prescribed meridian is $5 per acre. This provision, however, is not controlling upon tbe rental value of these lands. Tbe appraised value of these lands may be less than tbe minimum price prescribed by Congress in tbe Enabling Act, and as, in this case, no showing was made- by tbe appellants that tbe lands were worth tbe minimum purchase price, they are not in a position to question tbe action of tbe state land commissioner in leasing tbe lands at 5 cents per acre per annum. P. 312</p> <p>4.Tbe word “owned,” as used in section 5189, Code 1915, is held to apply to any lands in which the state bas any right or interest. P. 312</p> <p>5. Findings of fact, which, are supported by substantial evidence, cannot be successfully questioned in this court.</p> <p>P. 313</p> <p>6. A proposition, not argued in this court, will not be considered. ' P. 313</p> <p>7. Section 5226, Code 1915, which makes it a criminal •offense to use for any purpose any land' belonging to the state, unless it is leased or purchased, furnishes no remedy to a lessee, and is not exclusive of the right to injunction for intentional trespasses upon such leased lands. P. 313</p> <p>8. The words “subject to the approval,’’ as used in Enabling Act, § 11, providing that all lands granted in quantity or as indemnity shall be selected under the direction and subject to the approval of the Secretay of the Interior, are not to be regarded as giving him direction to arbitrarily refuse a selection for no reason at all, but are to be understood to mean that he shall investigate and pass upon and render judgment as to whether the lands selected are within the terms of the grant, and, if so, it is his duty to list them to the state. P. 311</p>

Suit by W. B. Bunton against Julius Campredon. Judgment for plaintiff, and defendant appeeals. Findings of Fact made by the trial court, if not supported by substantial evidence, should be set aside on .appeal. Wilkerson v. Badaracco 21 N. M. 517; Mori-arity v. Meyer 21 N. M. 521; NieMe v. Coulter (N. M.) Í59 Pac. 673; Hodges v. Hodges (N. M.) 159 Pac. 1007. The English statute of frauds (29 Chas. II, sec. 4) forms a part of the common law of this state.

, Judge. Action by Millard F. McBride against Julius Cam-predon. Judgment for plaintiff, and defendant appeals. Parties occupied' relation of mortgagor and mortgagee. Such relation did not preclude latter from purchasing property. Palmer v. Albuquerque, 19 N. M. 285; 27 Cyc. 991 ; see, 27 Cyc. 974; Moore v. Calkins, 30 Pac. 582, 29 Am. S. R. 128; Hoffman v. Marchall, 64 Am. Dec. 637; Chowning v. Cos, 10 Am. Dec. 530; MeVey v. Tousley, 105 N. W. 932 (S. D.).

Thomas Crump was convicted of assualt with a deadly weapon, and he appeals, and, upon his death pending appeal, his administratrix, Bessie L. Crump, applied to be substituted as appellant.

<p>SYLLABUS BY THE COURT.</p> <p>Chapter 94, Laws 1909, known, as the “Herd Law,” was a constitutional enactment. Scarbrough v. Wooten, 170 Pac. 743, adhered to.</p>

<p>Appeal from District Court, Santa Fe County; Hollo-man, Judge.</p> <p>Mandamus by tbe State of New Mexico, on relation of A. A. Sedillo, against William G. Sargent, State Auditor. Judgment for relator, and defendant appeals.</p>

. Appeal from District Court, Lincoln County; Medler, Judge. Suit in replevin by Francisco Trujillo and another against Thomas H. Tucker, and suit in replevin by Allan Arnwine and another against the same defendant. Demurrer to complaint overruled and judgment for plaintiffs in each case, and defendant appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. Errors in instructions must he called to the attention of the trial court by proper objections or exceptions before m_,the instructions are given to the jury. P. 344</p> <p>2. Evidence held to sustain verdict. P. 344</p> <p>3. Where the motion for a new trial did not call the trial court’s attention to the alleged insufficiency of the evidence as to venue to sustain a conviction, the question was not reviewable on appeal. P. 344</p>

<p>SYLLABUS BY THE COURT.</p> <p>Where the sense of an indictment is clear, nice or technical exceptions are not to be favorably regarded; therefore verbal inaccuracies, or clerical' errors wbicb are explained and corrected by necessary intendment from other parts of the indictment are not fatal.</p>

<p>Appeal from District Court, Bernalillo County, Me-chera, Judge.</p> <p>Suit by Gussie I. Stean against Occidental Life Insurance Company.- Judgment for plaintiff, and she appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Where there is substantial evidence to support the verdict of the jury, the sainé will not be disturbed on appeal. P. 352</p> <p>2. Under circumstances of'this case, it was not error to permit the state to introduce in evidence clothing worn by the deceased at time of killing. P. 352</p>

Action by R. H. Pierce against Julia F. Morgan. Judgment for plaintiff, and after filing a supersedeas bond and without perfecting an appeal, defendant obtained a writ of error.

Action by the Otto-Johnson Mercantile Company against Salome Garcia. From an order overruling its motion to dismiss the cause at its costs, plaintiff appeals. The order from whieb the appeal was taken is non-appealable. ■ Sees. 1 and 2, c. 43, L. 1917; Costillo L. & I. Co. v. Allen, 15 N. M. 528; London-Glascow Dev. Co. v. Powers, 100 Pae. 454; in re Minn. & W. R. Co., 78 N. W. 753; Raymond v. Keseberg, 73 N. W. 1010; Sliscovieh v. Scandinavian Amer.

Bobert Lee Anderson was convicted of voluntary manslaughter, and he appeals. Testimony of witness concerning alleged confession was improperly admitted. Womack v. State, 16 Tes. Cr. App. 178; Rice y. State, 22 Tex. Cr. App. 654; Neely v. State, 27 Tex. Cr. App. 324; Searcy v. State, 13 S. W. 782; Adams v. State, 34 Tex. Snp. 526; Barnes v. State, 36 Tex. Snp. 356; Clayton y. State, 31 Tex. Cr. App. 489; Cannada v. State, 29 Tex. Cr. App. 537; Allen v. State, 12 Tex. Cr.

Suit by tbe City of Albuquerque against tbe Water Supply Company. Judgment for plaintiff, and defendant appeals. Held: however, that such proposition is to be construed as in substance a proposition to acquire a water works system or other improvement, either by purchase or construction, and that such proposition is not invalid as either double or alternative. Hartigan v. Los Angeles (Cal.), 149 Pac. 590; Clark v. Los Angeles, 160 Cal. 30; 116 Pac.

A’. B. Smith, alias Dashley, was convicted of murder in the first degree, and, from the judgment on the verdict, he appeals.

Suit for injunction by W. G. Sargent, for himself and others similarly situated, against the City of Santa Fe and others. Judgment for defendants, and plaintiff appeals.

Pablo Ybarra, was- convicted of murder in tbe first degree, and he appeals. Mere fact that defendant killed another does not prove deliberation and premeditation. Terr. v. Baca, 11 N. M. 559; State v. Lane, 64 Mo. 319; People v. Gibson1, 17 Cal. 283; Farrar v. State, 42 Tes. 265; State v. Silk, 145 Mo. 240; McDaniel v. Comm., 77 Ya. 281; Wharton on Homicide, Sec. 149. If witness does not understand nature and obligation of oath, he is not qualified to testify.

<p>SYLLABUS BY THE COURT.</p> <p>Where the statute provides that the county jail shall he used for the retention of every person, who within the same county shall be charged with crime, and a party has been convicted of a crime and sentenced to the state penitentiary, and the statute provides that an appeal shall operate to stay execution, and such party has appealed, the judge of the district court has no power to order such party committed. to the state penitentiary for safe-keeping pending the determination of such appeal, in the absence of a statute so authorizing. The statute (section 3049, Code 1915) authorizes the sheriff to remove prisoners in the county jail to some other jail, or other safe place, in his discretion. The power of removal is in the hands of the sheriff, at his discretion, and not in the district court.</p>

Officers and members of mounted police are on duty at all times and are authorized to carry arms as peace officers. Secs. 5411, 5413, 5414, 5420, 54Í2, 1709, Code 1915; Gonzales v. State, 110 S. W. 740; Jones v. State, 65 S. W. 52; Jenkins v. State, 82 S. W. 1036; Guise v. Terr., 7 N. M. 228. Guise v. Terr., 7 N. M., 228, does not apply to officials such as mounted policemen. Such men have no right to carry arms. State v. Rogers, 16 Lea. 510 ; 40 Cye. 865. STATEMENT OF FACTS.

E. W. Blancett was convicted of homicide and sentenced to death, and he appeals. Edmund C. Abbott was not judge of the district court when jury was drawn, summoned and impaneled, or during the trial of this ease, because he was an officer of tbe national guard, an office incompatible with that of judge. U. S. v. Harsha, 172 U. S. 567; State v. Jamison, 4 L. R. A. 79; 6 R. C. L. 65; 6 R. C. L. 62; art. 3, State Const.; 44 Am.

Suit for injunction by C. Walker Hyde against John L. Bryan and others. Judgment for plaintiff on the pleadings for default of answer, and defendants appeal. STATEMENT OP PACTS.

<p>Appeal from District Court, G-rant County; Byan, Judge.</p> <p>William N. Boyles was convicted of having drawn a deadly weapon upon the person of another, and he. appeals.</p>

Action in justice court by John Vanderford against W. W. Wagner. There was judgment for defendant, and from a judgment of the district, court, on plaintiff’s appeal, in favor of plaintiff, defendant appeals. Relative to construction and maintainance of stock fences, see: Secs. 2342, 2341, 2340, Code 1915; 3 C. J. 130; Lazarus v. Phelps, 152 U. S. 81; James v. Blythe, 93 Pac. 994. Willful trespass.

* Appeal fom District Court, Eddy County; McClure, Judge. » Replevin by Lila M. Enfield and others against M. C. Stewart. Defendant’s motion for judgment granted, motion to set aside the judgment overruled, and plaintiffs appeal. STATEMENT OF FACTS.

Action by the Pecos Valley Trading Company against the Atchison, Topeka & Santa Fe Railway Company. Judgment lor plaintiff, and defendant appeals.

Replevin by Bessie G. Stephenson against the Board of Commissioners of Socorro county. From an order striking defendant’s motion to quash the writ, defendant appeals. STATEMENT OP PACTS.

<p>Appeal from District Court, Lincoln County; Medler, •Judge.</p> <p>Action by Alfred S. Woods and others against Sam B. Fambrough and others. Judgment for plaintiffs, and defendants appeal.</p>

<p>Application by Charlie Parks and John Parks for writ of habeas corpus.</p>

« Action by the Stockmen’s Guaranty Loan Company against C. C. Cooper, with counterclaim by defendant. Demurrer to defendant’s evidence sustained, and plaintiff’s motion for judgment granted, and defendant appeals. STATEMENT OF FACTS.

; McClure, Judge. ■ Suit for injunction by J. R. Stanley and others against B. H. Wixon and others, commissioners of the .Dexter-Greenfield Drainage District, and Walter S. -Dickey. Judgment for defendants, and plaintiffs ■ appeal.

<p>.SYLLABUS BY THE COURT.</p> <p>1. A question not raised in the trial court will not he considered on appeal. p. 512</p> <p>2. The Bateman Act (sections 1227-1233, inclusive, Code 1915) was not repealed by chapter 108, Laws 1909 (section 1339, Code 1915). •' P. 512</p> <p>3. It is a rule of statutory construction, that repeal's by implication will not be favored', and that where two statutes can be construed together, and preserve the» objects to be attained by each, they should be so construed. P. 513</p> <p>4. Chapter 108, Laws 1909, by conferring the right upon counties to levy a tax for the payment of judgments obtained for current expenses, did not authorize the rendition of such judgment, and thus operate to repeal the Bateman Act.</p> <p>P. 514</p> <p>5. It is proper to consider the origin and1 history of the law, the pri'or condition of the law, and, the general policy and course .of legislation. There are few guides to construction more useful than that which directs attention to the prior condition of the law to aid in determining the full legislative meaning of any statutory change thereof.</p> <p>P. 515</p> <p>■6. The Bateman Act was not repealed by the act "fixing salaries for county officers (chapterT2, Laws 1915). P. 516</p>

<p>Appeal from District Court, Curry County; McClure, Judge.</p> <p>Action by W. B. Mersfelder against the Atshison, Topeka & Santa Fe Railway Company. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from District Court, Dona Ana County; Med-ler, Judge.</p> <p>Action by the Board of County Commissioners of Dona Ana county against Lafayette Clapp, receiver of the First State Bank of Las Cruces. Judgment for plaintiff, and defendant appeals.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Prior stipulations are merged in the final and formal contract executed by tbe parties, and this rule applies to a deed or mortgage based upon a contract to convey. When a deed is delivered and accepted1 as performance of tbe contract to convey, tbe contract is merged in tbe deed. Though tbe terms of tbe deed may vary from those contained in tbe contract, tbe deed alone must be looked to, to determine tbe rights of the parties. P. 528</p> <p>2. There is an exception to tbe rule stated, which is that tbe contract of conveyance is not merged upon execution of a deed, where under tbe contract tbe rights are conferred collaterally and independent of tbe deed; there being no prsumption that tbe party, in accepting tbe deed, intends to give up tbe covenants of which the deed is not a per formance or satisfaction. Where tbe right claimed under the contract would vary, change, or alter the agreement in the deed itself, or inheres in the very subject-matter with which the deed deals, a prior contract covering the same subject-matter cannot be shown, as against the provisions of the deed.. P. 530</p>

<p>' Appeal from District Court, ’ Union Coutny; Leib, Judge.</p> <p>Action by Sylvia Baker against Ed. F. Saxon. Judg-ínént for plaintiff,' and defendant appeals.'</p> <p>Homestead was separate estate. Sec. 2766, Code 1915; McKay,- Community Prop., See. 30; Cunningham v. Krutz, 83 Pac. 190-; 199 Fed. 588; McKay on Comm. Prop-., C. 2; Teynor v. Heible, 46 L. R. A. 1033; Rogers v. Minn. T. Co'., 95 Pac. 1014.</p> <p>The land was community property; that title relates back to the time of entry and upon dissolution of marital relation spouses continue to hold as tenants in common. Forker v. Henry, 57 Pae. 811; Creamer v. Bris-cow, 17 L. R. A. (N. S.), 154; Buchser v. Buehser, 231 U. S. 157; Cunningham v. Kuntz, note, 7 L. R. A. (N. S.) 967; Krieg y. Lewis, 26 L. R. A. (N. S.) 1117.</p>

Actions by John Rueb and by T. J. Ford against Harry J. Rehder and others. The cases were consolidated, complaints dismissed, and plaintiffs appeal. What transpired at former trial of member in association may be proved by parol. MeKelvey on Evid., 344; Jones on Evid. (pocket ed.), Par. 203. Member does not have to appeal from void expulsion.-Mulroy v. Supreme Lodge of Knights, etc., 28 Mo. App. 463; Pickering v. Palmer, 138 Pac. 198.

<p>SYLLABUS BY THE COURT.</p> <p>1. The method and extent of cross-examination depends largely upon the discretion of the trial judge. Held, that court did not abuse its discretion in permitting counsel for the state to ask the accused, on cross-examination, how he accounted for the brains of deceased and lead from a bullet appearing upon certain rocks found near the body of deceased. P. 553</p> <p>2. The general reputation of the deceased for stated traits cannot be proved by a witness not knowing the general reputation of deceased therefor, but who bases his opinion upon personal knowledge. ' P. 553</p> <p>3. Code 1915, § 1708, construed, arid held that the word “travelers,” as used therein, does not include one who habitually journeys from, his home in a city to his ranch, less than 10 miles distant from his home. Held', further, that accused had reached his objective prior to the occurrence of the homicide , and therefore he was not a traveler, within the meaning of the statute. P. 555</p> <p>4. A requested instruction based upon facts not in evidence is properly refused. P. 557</p> <p>5. A requested instruction containing the law as to the legal effect of shooting into the body of a corpse is properly refused where the court instructed’ the jury that, before they could convict accused of murder in the second degree, they must believe that he inflicted three mortal wounds upon the person of the deceased, from which wounds the deceased then and' there died, the instruction given covering the law of the requested instruction, in different lanJ guage. . P. 558</p> <p>6. Objections to alleged improper argument of counsel must specify the ground thereof, or the same will not be considered on appeal. P. 559</p>

Action by P. J. Gomez against Jose Dario Ulibarri and Dolores U. De Gomez intervenes. Judgment for plaintiff and defendant appeals. The statutes of this state authorize or permit a defense or counter claim pleaded as new matter, in ordinary and concise language, without repetition. Codif. 1915, sec. 4115, 4116; Agua Pura Co. v. May- or et al., 10 N. M. 6; Field v. Sammis, 12 N. M. 36; La Mesa Community Ditch v. Appelzoeller et al., 140 Pae. 1051; 25 Am. and Eng.

Action by Thomas Transgard against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, motion for new trial overruled, and defendant appeals. Appellee was not entitled to recover under pleadings and evidence.

<p>SYLLABUS BY THE COURT.</p> <p>1. Appellant was convicted of voluntary manslaughter. According to his own testimony and that of others, he was assaulted with a deadly weapon, a pistol, and threatened with immediate death. There was evidence tending to show previous illicit relations between appellant and the wife of deceased. Under such circumstances it was not error to submit to the jury the issue as to the guilt of the defendant of voluntary manslaughter, and the proof was sufficient to support such a verdict. All that is required to reduce a homicide from murder to voluntary manslaughter is such heat of passion arising from such adequate provocation at the time as to excite in the mind such emotions as anger, rage, sudden resentment, or terror as may he sufficient to obscure the reason of an ordinary man, so as to prevent deliberation and premeditation and to exclude malice, and to render the slayer, acting as an ordinary man, incapable of cool reflection.</p> <p>P. 577</p> <p>2. The error in admitting a photograph in evidence which has not been accounted for is waived by a subsequent admission by the party concerned of its genuineness. P. 580</p> <p>3. Appellant was charged by the mother of the deceased with illicit relations with the wife of the deceased, and he failed to deny the same. The evidence was correctly received by the court as an admission by silence. In overruling an objection to the evidence, the court stated that he admitted it on the theory of an admission by silence, and that he regarded the silence of appellant as of great importance. While!' exception to the remarks was taken, no motion to withdraw the remarks from the jury was made. It is held, for that reason, that no available error intervened. P. 582</p> <p>4. Where counsel object to a question calculated to qualify a witness to speak to a certain point, and have opportunity given them by the court to disqualify the witness, but failed to do so, they cannot complain of his testimony.</p> <p>P. 582</p> <p>5. A witness was allowed to testify that one of the defendants was a go-between between appellant and the wife of the deceased. In so testifying the witness was detailing the reasons she had for ordering the man away from her hotel, and gave all of the facts upon which she based her inference that he was a go-between. It is held that the admission of this evidence was harmless error under the circumstances.</p> <p>P. 583</p> <p>6. A witness testified for appellant that he was in the hotel in front of which the homicide occurred; that he heard a shot, and then went to the door and saw the deceased in the act of picking up a six-shooter from the ground, and the appellant in the act of drawing his pistol from his pocket. He was asked on cross-examination whether, shortly after the killing, the mother of the deceased did not, in the presence of his mother and a Mrs. Parmer, upbraid him for not going to the assistance of her son and saving him from death, and whether Mrs. Parmer did not then, say that the mother of the deceased must not blame the witness for the reason that the witness’ mother was holding him, and that he could not go out under the circumstances. The mother of the deceased was put on in rebuttal and testified to such conversation. It is held that the testimony was admissible on the theory that the circumstances placed before the witness were such as to call for a denial if the statements were untrue, and reflected upon the truth of the testimony of the witness at the trial.</p> <p>P. 584</p> <p>7. A witness was asked whether he, on a certain occasion, made a certain admission concerning his knowledge of the homicide. He was then asked if he made the same admission to another person, and then asked whether he made the same admission to two other persons. Held, that the occasion of the admission was sufficiently identified for the purpose of the impeachment. P. 585</p> <p>8. Where the context of a question shows that the time referred to must have been just after the homicide, instead of just before, as it appears in the transcript, complaint of the incompetency of the evidence will not he heard on that ground.</p> <p>P. 586</p> <p>9. The court erroneously rejected testimony as to the animosity of two witnesses against appellant on the ground that they had not been interrogated on the' subject when on the stand. It appears, however, that two other witnesses had testified, without objection or contradiction, to the facts upon which the animosity was predicated. It is held,, under the circumstances, the facts being undisputed, and, the evidence being merely cumulative, that the error was immaterial.</p> <p>P. 586</p> <p>10. Two cartridges, suitable for use in the gun of the deceased, and unsuitable for use in the gun of appellant, were found in front of the hotel where the homicide occurred, two days after the homicide, and were offered by appellant. The circumstances were such that the deceased had no opportunity to unload his 45 Colt’s six-shooter during the controversy, and no proof was offered that he did in fact afterwards unload the gun. It is held that the court properly excluded the cartridges for want of relevancy. P. 587</p> <p>11. A witness testified to a dying declaration by deceased when he was conscious and knew of his imminent and impending death, according to the witness. Counsel, for exclusion of the declaration, relied upon the testimony of physicians to the effect that the deceased was in a semi-comatose state both before and after an operation for the wounds upon him, but did not seek, by cross-examination, to disqualify the declaration. Under such circumstances the declaration was properly admitted. P. 589</p> <p>12. A witness testified as to statements made by a co-defendant as to the circumstances of the killing. No application was made to have the evidence limited to the co-defendant, and the evidence at the time it was admitted was competent against the co-defendant. Under such circumstances, no complaint can be made here by appellant. P. 590</p> <p>13. Counsel must object to questions calling for objectionable testimony, and a subsequent motion to strike the same may be properly refused. P. 590</p> <p>14. Where counsel, although given opportunity by the court, failed to cross-examine a witness sufficiently to destroy the foundation for secondary evidence of the contents of a letter, they cannot be heard to complain of the admission of such secondary evidence. P. 591</p> <p>On Rehearing.</p> <p>15. Where defendant’s witness testified that he saw deceased picking up a six-shooter, and defendant then drawing a pistol from his pocket, and did not claim to have left the house to assist deceased, testimony that he was reproached by deceased’s mother for not assisting deceased, and that a person present had said that he should not be blamed, admitted because calling for denial by witness and as reflecting upon his credibility, was irrelevant. P. 592</p> <p>16. In a prosecution for murder the erroneous admission of irrelevant evidence to discredit defendant’s principal witness, and his only witness on a material point, was prejudicial, and entitled defendant to a reversal. P. 593</p>

Action on note and mortgage by the Merchants’ National Bank of Clinton, Iowa, against the Lagunita Live Stock Company, the Salado Live Stock Company, J. J. Jaffa, trustee, and Miguel A. Otero, with answers by the Salado Live Stock Company and defendant Otero, seeking affirmative relief, combined with action by same plaintiff against Edward A. Austin and others. Judgment for defendants, and plaintiff appeals.

<p>SYLLABUS BY THE COURT.</p> <p>1. The rule announced in the case of Carabajal v. Lucero, 22 N. M. 30, 158 Pac. 1088, that, in the absence of a showing of fraud on the part of election officers sufficient to invalidate the returns and to cast discredit upon the ballots, preserved as required by law, the individual voters cannot be permitted to testify as to the candidates for whom they voted at an election, has no application to the question of the right of an illegal voter to testify as to the persons for whom he voted at an election. P. 621</p> <p>2. In the case of illegal voters, it is universally recognized that the right to examine the voters in such a case is in af-firmance and vindication of the essential principle of the elective system that the will of the majority of the qualified voters shall determine the right to an elective office, and the testimony of the voter, after it has been shown that he voted illegally, is competent and should be received by the court for what it is worth. P. 622</p> <p>3. An illegal voter cannot be required to testify in the first instance as to whether he did in fact vote, if he claims his constitutional privilege against self-incrimination, but, if it is proven by other evidence that he did vote, he may then be compelled to testify for whom he voted. P. 622</p> <p>4. Circumstantial evidence is competent to prove the fact for whom an illegal voter voted,-and, where the facts and circumstances in evidence clearly establish for whom he voted, the court is justified in finding the ultimate fact. P. 623</p> <p>5. Circumstantial evidence may be resorted to where it does not appear from the testimony of the voter for whom he voted. p. 623</p> <p>6. Where it is shown that ballot boxes have been in the custody of parties not entitled thereto, the burden rests upon the contestant to show that during such time the ballot boxes were not tampered with. p. 624</p> <p>7. Departure from the strict letter of the statute ■ as to the preservation of the ballots will not warrant their rejection, unless the statute so provides, in the absence of fraud or any suspicion of fraud. P. 625</p> <p>8. An election is void where qualified electors are corruptly and fraudulently deprived of an opportunity to vote, sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election. P. 625</p> <p>9. An appellate court is not absolutely obligated, on reversal, to render or order final judgment, but the court is in-yested with a discretion to either render final judgment, or to direct the lower court to enter judgment, or to remand the case for a new trial or other proceedings, and, where it appears that justice requires that a cause be remanded for a new-trial, it will be so ordered. P. 626</p>

<p>Appeal from District Court, Chaves County; Bichard-son, Judge.</p> <p>Suit to quiet title jby Ella Harris against W. E. Friend and Margaret Friend. Judgment for plaintiff, and defendants appeal.</p>

<p>SYLLABUS BY THE COURT.</p> <p>Under the provisions of section 5079, Code 1915, a paróte granted a convict in the penitentiary by the prison board may be revoked, and under the statute the superintendent of the penitentiary has the power to retake and reimprison any inmate under parole, when in his judgment the terms of the parole agreement have been violated; and this he may do without notice or hearing, and for any reason which he may deem sufficient. The statute having conferred upon the superintendent of the penitentiary the power to retake and re-imprison any convict so upon parole, his act of revocation is in the exercise of a sole discretion, which is not reviewable by the courts.</p>

Mandamus by the State, on the relation of the People’s Bank & Trust Company óf Las Vegas, against John H. York and others, members of the Board of County Commissioners and ex officio County Board of Financce of the County of San Miguel. Judgment for defendants, and plaintiff appeals. Reversed, and cause remanded, with instructions. STATEMENT OP PACTS.

Mandamus by the* State, on the relation of the Farmers ’ & Stockmen’s Bank of Estancia, against Reymundo Romero, Treasurer of Torrance County. Judgment for-defendant, and plaintiff brings error. STATEMENT OP PACTS.

<p>SYLLABUS BY THE COURT.</p> <p>1. When the lease provides for a notice requiring the tenant in the alternative, either to perform the covenant or relinquish- possession, the notice must recite the breach or stipula-lion relied on with sufficient particularity to enable the lessee to correct his default. P. 655.</p> <p>2. Where a lease provides for its termination upon failure of the lessee to comply with any of the terms and conditions of the lease, after 30 days’ notice of default and demand for compliance, a complaint filed in a suit for possession of the premises setting up defaults in the terms and conditions of the lease will not take the place of a notice provided for by the terms of the lease, under which the lessee is- to have 30 days’ time within which to comply. P. 656.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Findings supported by substantial evidence will not oe disturbed on appeal. P. 659.'</p> <p>2. "Where plea in abatement is withdrawn by parties filings same and refiled as their answer, and trial of the issues thus presented is had, resulting in decision adverse to parties taking said action, said parties were not thereafter entitled to file an answer and have a retrial of the same issues. P. 659.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Where there is substantial evidence to support the verdict of the jury, the same will not he disturbed on appeal.</p> <p>P. 662.</p> <p>2. Where title to or right of possession of real estate is only collaterally involved, the best evidence rule does not apply, and the same may he shown by parol evidence. P. 662.</p> <p>3. In the absence of an offer of proof, as the rule is laid down in State v. McCracken, 22 N. M. 588, 166 Pac. 1174, the-action of the court in excluding the evidence cannot he attacked on appeal. P. 663.</p> <p>4. Requested instruction is properly refused where court’s instructions cover the law. i P. 664.</p> <p>5. A requested instruction is properly refused, where there is no evidence to support the same. P. 664.</p> <p>6. A requested instruction on the abstract proposition that the defendant is presumed to he a man of good moral character, etc., is properly refused, where the same is unsupported by affirmative proof. P. 665.</p> <p>7. The use of the words, “it is for you to determine from all the evidence whether such defense is made in good faith or is a mere pretense,” in an instruction on self-defense, does not constitute a comment on the weight of the evidence, nor is the same improper as unduly directing attention to a contention of the state. P. 665.</p>

<p>SYLLABUS BY THE COURT.</p> <p>1. Where, under a contract of employment, a broker undertakes to furnish a purchaser ready, able, and willing to purchase described property on terms fixed by the principal, he is not required to produce the written contract to purchase of the proposed purchaser, in order to perform his undertaking, unless the contract so provides. P. 671.</p> <p>2. Findings of fact, supported by substantial evidence, are conclusive on appeal. P. 677.</p> <p>• 3. Findings of fact, based upon conflicting evidence, will not be disturbed on appeal. P. 678.</p> <p>4. The liability of an agent- to his principal is to be determined by ascertaining the nature and scope of the duty of the former to the latter. Evidence and findings examined, and held, that broker was not guilty of misconduct. P. 679.</p> <p>5. Where evidence is admitted for a stated purpose, the fact that it is inadmissible for a different purpose does not render the action of the court erroneous. P. 683.</p>