Volume 6 — New Mexico Reports

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. STATEMENT. The plaintiff in error was, on the eleventh day of June, 1887, summoned as the garnishee of Jesus M. Perea, his brother, under an execution issued out of the district court for Bernalillo county upon a judgment of that court in favor of defendant in error and against said Jesus M. Perea for $4,794.90, rendered on the third day of May, 1887.

Appeal, from a judgment for complainants, from the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Error, from a judgment in favor of defendants, to the First Judicial District Court, Santa Fe county. The facts are stated in the opinion of the court. All of the customs, usages, and laws of Mexico which were in existence at the time of the treaty of cession, and which were not contrary to the spirit of our government, continued and remained in force. Leitensdorfer v. Webb, 20 How. (U. S.) 177. In this instance they were so continued by express statute.

Appeal, from a judgment in favor of plaintiff, from the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

<p>Attachment — Finding, Review on Appeal. — On a review of the findings of a court, the same rules apply as to the sufficiency of the evidence to support such findings as prevail on the review of the verdict of a jury.</p> <p>Id. — Instructions.—Where the court below has fully and fairly declared the law applicable to the whole case, the appellate court will not reverse the cause for any alleged error in its refusing other instructions asked, but not given, on the trial.</p> <p>Id. — Deed oe Assignment — Delay—Fraud.—Held, on petition for rehearing: The court is of the same opinion heretofore rendered in this cause, at the January term, 1889, 5 N. M. 148, to wit: That a deed of assignment, made by a debtor in good faith and with the honest intent to apply all his property to the just payment of his debts, but requiring some slight incidental delay necessary to the conversion of the same, by proper means, into cash, for that purpose, is not, by reason of such delay, fraudulent in law.</p>

Ebbob, from a judgment for the United States, to the Second Judicial District Court. The facts are stated in the opinion of the court.

On rehearing, Ebbob to the Second Judicial District Court. Judgment below for the United States, reversed. Motion for rehearing. The opinion states the case on the rehearing.

Error, from a judgment in favor of relator, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court.

Error, from an order setting aside a judgment, by default, for plaintiff, to the Fourth Judicial District Court, San Miguel County. The opinion states the case.

Appeal, from a .judgment in favor of plaintiff, from the First Judicial District Court, Santa Fe county. Freeman, J., dissenting. The facts are stated in the opinion of the court. Upon the declaration in this case, the question of the negotiability and negotiation of the coupons relied on is wholly immaterial. The plaintiff declared upon promises independent of and which were evidenced only by the coupons.

<p>Criminal Law — Courts op General Jurisdiction, Judgments of — Trial —Presumption—Exceptions—Appeal.—On appeal from the final judgment of a court of general jurisdiction, all the details of the trial are presumed to be legal and sufficient, until the contrary is shown. Territory v. Webb, 2 N. M. 147; Territory v. Yarberry, Id. 458. This court has also repeatedly held that error claimed upon the trial, to which no exception was taken at the time, will not be reviewed on appeal. Territory v. O’Donnell, 4 N. M. (Gil.) 196; Territory v. Baker, Id. 238.</p> <p>Id. — Impaneling op Jury — Validity of Act of February 26, 1889 — Exceptions.- — The act of February 26, 1889 (Session Laws, 1889, p. 227) providing for the impaneling of grand and petit juries to investigate and try causes on the part of the United States, is not special legislation. It is the same as contemplated by the organic act, and the same as has been in operation since the organization of the territory. Nor is the act special legislation so far as the district is concerned, since it provides the same kind and class of juries for every district in the territory.</p> <p>Id. — Perjury—Instruction.—On a trial for perjury a request for an instruction that, “If the jury believe that the witness, Margerito Barela, testified truly, but that the marriage to which she testified was not a legal marriage, they will find the defendant not guilty of perjury in swearing that she was not married" presented a question of law to be submitted to the jury, and was properly refused.</p> <p>Id. — New Trial — Discretionary Power of Court. — A motion for a new trial is a matter in tlie discretion of the trial court, whose action is not assignable as error on appeal, unless the court has committed reversible error, to which exceptions were taken at the time. Coleman v. Bell, 4 N. M. (Gil.) 27.</p> <p>Id. — Instructions.—Where the instructions given present the issues fairly to the jury, and either party is dissatisfied with them on any point presented, he should offer a proper instruction covering that point. Territory v. O’Donnell, 4 N. M. (Gil.) 196.</p> <p>Id. — Perjury—Admissibility of Admissions of Defendant — Evidence. On a trial for perjury for false swearing in a prosecution for adultery, defendant’s admissions of marriage are admissible. But such evidence is to be received with caution, and should always be submitted to the jury under proper instructions from the court.</p> <p>Id. — Marriage Ceremony, Admissibility of Oral Testimony to Prove • — Presumption—Evidence.-—-A marriage ceremony may be proved by any competent witness present at the ceremony; and, when proven, the contract, the capacity of the parties, and the validity of the marriage will be presumed. Wilkie v. Collins, 48 Miss. 496.</p>

<p>Appeal, from a judgment for appellees, from the Third Judicial District Court.</p>

<p>Appeal, from a judgment for appellees, from the Third Judicial District Court.</p>

Appeal, from a judgment for plaintiff, from the Third Judicial District Court, Dona Ana County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of defendant, from the Third Judicial District Court, Sierra County. Freeman, J., dissenting. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiffs, from the Second Judicial District Court, BernalilloCounty. The facts are stated in the opinion of the court. The rule of law applicable to goods sold on order is not correctly stated by the court.

Error, from a judgment in favor of plaintiff, to the Fourth Judicial District Court, Colfax County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiffs, from the Fourth Judicial District Court, Lincoln. County. The facts are stated in the opinion of the court.

Error, from a sentence, upon default, to the First Judicial District Court, Santa Fe County, rendered upon a sentence of the justice of the peace of precinct number 4, said county, convicting the defendant of assault and battery with words. The facts are stated in the opinion of the court.

On Rehearing. Appeal from the Third Judicial District Court, Dona Ana County. Decree below for complainant, affirmed February 12, 1890, 5 N. M., page 458. Motion for rehearing. The opinion states the case on the rehearing.

Error, from a judgment in favor of defendant, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. For authority for taking depositions for use as evidence in the courts of this territory, see sections 2095 to 2110, inclusive, of Compiled Laws, 1884. By section 10 of the organic act, a portion of the judicial power of the territory is vested in the probate courts. Comp. Laws, p. 49; sec. 1907, Rev. Stat.

Error, from a judgment in favor of defendant, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Appeal, from au order vacating an order for restitution, restoring to plaintiff certain property taken from him by the sheriff summarily, from the Fourth Judicial District Court, San Miguel County. When the writ of replevin was placed in the hands of the sheriff for service, he was bound, under the statute, to execute the same by delivering the goods and chattels mentioned in the declaration and writ of replevin, to the plaintiff. Sec. 1979, Comp. Laws, 1884.

Appeal, from a judgment for plaintiffs, from the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiff, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court.

Error, from a decree in favor of plaintiff, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Appeal, from a decree in favor of defendant, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. Every substantial question of fact found by the master, the court below overruled and set aside, and undertook to say upon which side the weight of evidence lay. This is contrary to the rule established by this court. Huntington v. Moore, 1 N. M. 503; Newcomb v. White, 5 N. M. 435.

Error, from a decree in favor of defendants, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of plaintiff, from the Second Judicial District Court, Bernalillo County. Tlie facts are stated in the opinion of the court. Where the burden of proof is on plaintiff, and his evidence is such that a verdict for him would be set aside, the court should direct a verdict for defendant. Randall v. B. & O. R’y Co., 109 U. S. 478; Pence v. Langdon, 99 U. S. 578; Scofield v. Railroad Co., 114 Id. 615.

Appeal, from a judgment in favor of defendants, from the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court.

Appeal, from a judgment for defendant, from the 'Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Error, from a judgment for plaintiff by default, to the Third Judicial District Court, Grant County. The facts are stated in the opinion of the court.

Appeal, from a judgment in favor of defendant, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court.

Error, from a judgment in favor of defendant, to the First Judicial District Court, Taos County. O’Brien, C. J., dissenting. The facts are stated in the opinion of the court.

Appeal, from a judgment convicting defendant of murder, from the Third Judicial District Court, Girant County. The facts are stated in the opinion of the court.

<p>The facts of this ease are substantially the same as those in Territory v. Davis, page 452, ante, and this ease was affirmed for the same reasons stated in that ease.</p>

Error, from a judgment convicting defendants of larceny, to the Second Judicial District Court, Valencia County. The facts are stated in the opinion of the court. Huning’s testimony that he was the owner of the circle H brand is in violation of the statutes. Comp. Laws, 1884, secs. 54, 55, 57, 64, 65.

Ebbob, from a judgment convicting defendant of murder in the first degree, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. The court erred in overruling the motion for a continuance. Comp. Laws, N. M., sec. 184. See, also, secs. 1847, 2049, 2050, Comp.

Error, from a judgment for defendants in each case, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court.

Error,, from a judgment for defendant, to the Second Judicial- District Court, Bernalillo County. Freeman, J., dissenting. The facts are stated in the opinion of the court.

Error, from a judgment in favor of defendant, to the Second Judicial District Court, Bernalillo county. The facts are stated in the opinion of the court.

Appeal, from a judgment convicting defendant of rape, from the Second Judicial District Court, Bernalillo County. Thé facts are stated in the opinion of the court. Where the statute defines several distinct offenses, and the indictment covers only one of such offenses, it is error to embody the entire statute in the charge. Miller v. State, 18 S. W. Rep. (Tex. App.) 197; Jones y. State, 3 Id. (Texas) 478; Proffat on Jury Trials, sec. 329.

Appeal, from a judgment convicting defendant of perjury, from the Third Judicial District Court’. The facts are stated in the opinion of the court.

Ebeob, from a judgment for plaintiff, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court.

Error, from a judgment convicting defendant of an assault with intent to kill, to the Fourth Judicial District Court, Mora County. The facts are stated in the opinion of the court. The principle is well settled that the judge may, at his discretion, on the application of either party, order a separation of ordinary witnesses in order that they may be prevented from hearing the testimony of the witnesses as given in the court room. Rogers, Expert Testimony, p. 90; Greenlf.

Appeal, from a judgment for defendant sustaining a motion to quash an indictment for assault with intent to kill, from the Third Judicial District Court, Dona Ana County. The case is stated in the opinion of the court.

Appeal, from a judgment convicting defendant of murder in the third degree, from the Third Judicial District Court, Dona Ana County. The facts are stated in the opinion of the court. The court erred in overruling defendant’s motion for instruction to the jury to return a verdict in his behalf. State v. Turpey, 59 Cal. 371; 51 Id. 319; Whar. Crim. Ev. 107. As to setting aside a verdict, see United States v. Daubner, 17 Fed. Eep. 807.

Ebbob, from a judgment in favor of plaintiffs, to tbe Fourth. Judicial District Court, San Miguel County. O’Bbien, O. J., and Seeds, J., dissenting, on the ground it did not appear the verdict oould not be reduced on a new trial. • • The facts are stated in the opinion of the court.

Appeal, from an order directing a peremptory writ of mandamus to issue to compel the territorial auditor to audit a claim for district attorneys’ fees and draw his warrant upon the treasurer for the payment of the same, from the Second Judicial District Court, Bernalillo County. The opinion states the facts.

Error, from a judgment in favor of plaintiffs, to the Fifth Judicial District Court, Socorro County. The facts are stated in the opinion of the court. Garnishment upon execution is authorized by the statute, only when the prescribed efforts to find property of the execution defendant have failed. Section 2159, Compiled Laws, 1884.

Error., from a judgment in favor of defendants, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The question to be decided is purely one of law, and this court will take judicial notice of what the law of the territory is on the subject. Town v. Perkins, 94 IJ. S. 267; Walnut v. Wade, 103 U. S. 689.

Appeal, from a decree in favor of complainants, from the First Judicial District Court, San Juan County. The facts are stated in the opinion of the lower court, herein set out; and referred to in the opinion of the supreme court as “in the main correct,” in its findings of fact, and the application of the law thereto.

Error, from an order overruling a motion in arrest of judgment against defendant for selling liquor on Sunday, to the Fifth Judicial District Court, Socorro County. O’Beien, C. J., dissenting.