Volume 8 — New Mexico Reports

Error, from a judgment for plaintiff, to the Fifth Judicial District Court, Lincoln County. The facts are stated in the opinion of the court. The sureties on the treasurer’s bond had a right to be heard to deny the truth of his report, and could not be concluded thereby. United States v. Boyd et ah, 5 How. 30. They were not liable for the default of the treasurer during any period not covered by the bond sued on.

Error, from a judgment in favor of defendants, to the Fifth Judicial District Court, Eddy County. The facts are stated in the opinion of the court. The court erred in. rendering any judgment for defendants in the absence of any plea by them.

Error from a judgment for defendant, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The court committed no abuse of • discretion in sustaining defendants’ motion for dismissal. Practice Act, 1891, secs. 2, 4; Haynes v. Schwartz Co. et al., 32 Pac. Rep. (Wash.) 220. The court will not set aside a judgment of default occasioned by the negligence of the attorney. Wiggins y. Mayer, 18 S. E. Rep. 430; Milwaukee Mut.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. This action should have been dismissed for the failure of the plaintiff’s Christian name to appear in any of the papers filed in the cause. Prince’s Law, 1882, sec. 21. While these defects may have been amendable, no amendment was made, asked, or allowed below, and the pleadings are insufficient and can not be sustained.

Petition for writ of habeas corpus. Smith, C. J., and Collier, J., dissenting. The facts are stated in the opinion of the court.

Appeal, from a decree for complainant, from the Fourth Judicial District Court, Colfax County. The facts are stated in the opinion of the court. If the intending lienor falls short of complete and strict substantial compliance with the statutory prerequisites, he does not get his lien, but is left to his ordinary remedy against the debtor. Finane v. Hotel Co., 3 N. M. 411; .Minor v. Marshall, 6 Id. 194; Phil. Mech. Liens, sec. 1.

<p>Criminal Law — Plea in Abatement — Presumption.—On appeal in a criminal case, where the record, does not show that a hearing was urged on a plea in abatement, the presumption is that the plea was abandoned.</p> <p>Id. — Plea of Not Guilty, Withdrawal of — Change of Venue — Motion to Quash — Judicial Discretion. — The trial court has discretionary-power to refuse to permit defendant, after he has been granted a change of venue, to withdraw a plea of not guilty and substitute a motion to quash.</p> <p>Id. — Grand Jurors, Objection to Qualifications op, Too Late, When. ' An objection to the qualifications of a grand juror comes too late on motion in arrest.</p> <p>Id. — Statement Not Incorporated In Bill of Exceptions — Impeachment of Record. — -A statement not incorporated in a bill of exceptions can not be used to contradict- the record, and will not be considered on appeal.</p>

Appeal, from a decree dismissing complainant’s bill, from the Fourth Judicial District Court, Colfax County. The facts are stated in the opinion of the court. The first decree in partition, ascertaining the moieties and directing a partition, is only an interlocutory decree. Freem. on Coten. &Par., see. 516; 17 Am. and Eng. Ency. of Law, 749-751. See, also, 1 Freem. on Judg. [2 Ed.], sec. 32; 5 Am. and Eng. Ency. of Law, 371, 373; 17 Id. 750; Williams v. Field, 60 Am.

<p>Affirmed upon same state o£ facts and conclusions reached in Bent et al. v. Miranda et al., p. 78, ante.</p>

The facts are stated in the opinion of the court. Evidence of theft which is merely circumstantial in character, and showing only that defendant ha'd opportunity to have committed the crime, unless the opportunity was sole and exclusive as to defendant, is quite as consistent with the innocence of the accused as with guilt, and does not overcome the legal presumption of innocence, to the benefit of which .every person accused of crime is entitled.

<p>Criminal Law — Selling Liquor to Indians — New Trial. — Where, on a • conviction of defendant for selling liquor to Indians, a witness for the prosecution, who had testified that he had seen defendant sell whisky to an Indian, confessed that he had sworn falsely, but there were two other witnesses who testified to defendant’s guilt, a new trial was properly refused.</p> <p>Id. — Newly Discovered Evidence — Impeachment oe Verdict by Juror —New Trial. — An affidavit by a juror, that some of the jurors had stated during their deliberations that a witness, who afterward confessed to perjury, was reliable, and that defendant was convicted on. such statements, was no ground for new trial, where there was nothing to show that any of the jurors based their verdict solely on the testimony of such witness, or that such statements caused any of them to change their votes from acquittal to guilty, and there was other testimony to facts sufficient to establish defendant’s guilt.</p> <p>Id. — New Trial — Judicial Discretion. — The granting or refusing of a new trial rests in the sound discretion of the trial court, and will not be reversed on appeal, unless it clearly appears that such discretion has been grossly abused.</p>

Appeal, from a decree for complainants, from the Fifth Judicial District Court, Lincoln County. The facts are stated in the opinion of the court.

Appeal, from a decree for complainants, from the Second Judicial District Court, Bernalillo County. Laughlin, J., dissenting. The facts are stated in the opinion of the court.

Appeal, from a decree for complainant, from the Second Judicial District Court, Bernalillo County. Colliee, J., dissenting. The facts are stated in the opinion of the court.

Laughlin, J., dissenting. The facts are stated in the opinion of the court. Urging a jury to return a verdict is proper. Thomp. on Trials, sec. 2302, note 4 and citations. The court may recall a jury and, on its own motion, give them additional instructions. Leonardo v. Territory, 1 N. M. 297; Thomp. on Trials, secs. 2363, 2364, 2365, and citations; Commonwealth v. Snelling, — Mass. 321, 333; State v. Pitts,.11 Iowa, 343. The instruction of the court as to mercy was proper.

Appeal, from the First Judicial District Court, Santa Fe County, convicting defendant of a felony. Smith, C. J., dissenting. The facts are stated in the opinion of the court. The organic act of the territory provides that no person shall be deprived of the right to trial by jury in cases cognizable at common law. Act 1850, sec. 19.

Appeal, from the First Judicial District Court, Santa Fe County, directing the receivers to pay intervener the amount due him on the judgment in his favor. The facts are stated in the opinion of the court. The judgment of November 11, 1892, was a judgment against the New Mexico & Southern Pacific Railroad Company, alone.

Error, from a judgment for defendants, to the Fourth Judicial District Court, Socorro County. Laughlin, J., dissenting. The facts are stated in the opinion of the court.

Appeal, from a judgment of the Second Judicial District Court, Bernalillo County, overruling a motion for a change of venue, on the ground of local prejudice. The facts are stated in the opinion of the court.

<p>Territorial Legislation — Validity—Construction of Statutes. — It was not tbe intention of congress, by the act of June 19, 1878, making appropriation for the compensation of territorial officers and members and officers of territorial legislatures, and providing that “no greater number of officers or charge per diem shall be paid or allowed by the United States to any territory,” to prohibit the territorial legislatures from employing others subordinate to those named in the act and providing for their payment out of the territorial treasuries, or to restrict them in the exercise of their discretion as to their necessities, but to limit the officers, to be paid out of the United States treasury, to those enumerated in the act. Braithwaite v. Cameron, 38 Pac. Rep. 1084.</p> <p>Id. — Acquiescence by Congress — Inference.—The territorial legislature having assumed and exercised for a series of years the right to engage additional subordinates, and congress having continuously acquiesced in its exercise, the approval of that body may be reasonably inferred. Cooley’s Const. Lim.-34, note.</p> <p>Id. — Validity—Construction.—It is the duty of the courts to sustain legislative action, unless clearly satisfied oí its invalidity.</p>

<p>This cause involves the same questions, and is reversed for the same reasons stated in Baca v. Perez, decided at the present term, page 187, ante.</p>

Appeal, from a judgment of the First Judicial District Court, Santa Fe County, convicting defendant of murder in the first degree. The facts are stated in the opinion of the court. To constitute murder, death must have occurred within a year and a day from date of injury received. In the indictment in this case, the death is not averred to have occurred within this limit; it is, therefore, fatally defective.

Appeal, from a judgment of the First Judicial District Court, Santa Fe County, convicting defendants of murder in the first degree. The facts are stated in the opinion of the court. The affidavits and motion for change of venue in this case Avere made in compliance with chapter 77, Laws 1889. The statute is mandatory, and leaves no discretion with the court to whom the motion is addressed. 100 -111. 464.

Appeal, from a judgment of conviction of defendant, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. An indictment alleging that defendant “knowingly” purchased the property, but not alleging that he purchased it knowing that the person from whom he purchased had not the right to sell, does not charge the offense. U. S. v. Hess, 124 U. S. 483; U. S. v. Cruikshank, 92> Id. 542; H. S. v. Cook, 17 Wall. 168.

Proceeding for contempt. Respondent, Thomas Hughes, found guilty, and sentenced to imprisonment in the Bernalillo county jail for sixty days; Collier, J., concurring; Smith, C. J., in the result; and Bantz and Hamilton, JJ., dissenting from punishment inflicted, in separate opinions filed. The facts are stated in the opinion of the court.

<p>Attorneys — Unprofessional Conduct. — An attorney engaged for the defense in an important criminal trial, has the right to ascertain by proper and legitimate means the nature, strength, and credibility of the testimony to be offered in the case; and his simply visiting a witness to honestly learn what will be his testimony in the case is not unprofessional conduct, so long as he does not, by act or word, or in any manner, attempt to influence the witness to conceal, modify, or falsely change his testimony.</p> <p>Id. — Proceeding for Disbarment — Unprofessional Conduct — Evidence — Sufficiency.—The evidence in this cause, under the several specifications set forth in the complaint herein filed, charging the respondents with unprofessional conduct in connection with a certain criminal trial, in visiting and attempting to induce' an important and material witness not to testify, or, if he did, to change his testimony, or refuse to testify on the ground that he would, criminate himself and in endeavoring to induce and inducing other important and material witnesses to testify falsely, on such trial, — is considered by the court in respect to each, and held insufficient to sustain any, of the charges and specifications against respondents therein made.</p>

Appeal, from an order sustaining a demurrer to the intervening petition filed, from the First Judicial District Court. The facts are stated in the opinion of the court. This is not a statutory intervention, but an intervention or petition for what is designated in equity an examination pro interesse suo, and the appropriate way to present the alleged rights of the petitioner in property, or to the use of the same, which is in the hands of receivers.

On rehearing. Probate decrees are binding and conclusive upon both parties and privies until reversed or modified in the proper tribunal.

Appeal, from a decree for complainant, from the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. “A court of equity will not take jurisdiction of a bill for the mere purpose of settling disputed boundaries.Am. and. Eng. Ency. Law, 693; Wilcott v. Robbins, 26 Conn. 226, note; Doggert v. Hart, 5 Fla. 215; Dickerson v. Stoll, 8 N. J. Eq. 294; Top v. Williams Humph. (Tenn.) 569; Bresler v. Pitts, 58 Mich. 347.

Appeal, from an order sustaining a demurrer to the bill, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. A mortgagee is entitled to enforce his lien, no matter what his remedy at law may be. Ober v. Gallagher, 93 IT. S. 199; Case v. R. R., 101 Id. 199.

Appeal, from a judgment of the Fifth Judicial District Court, Socorro County, convicting defendant, with others, of murder in first degree. Smith, C. J., and Laughlin, J., dissenting. The facts are stated in the opinion of the court. Where jurors on the voir dire state that they have formed opinions, which it would require evidence to remove, it is sufficient ground for challenge, although formed from rumor or newspaper statements, in the absence of statute. 1 Chitty, Crim.

Appeal, from a judgment of the First Judicial District Court, convicting defendant of cutting timber on the public lands of the United States. Laughlin, J., dissenting. The facts are stated in the opinion of the court. If the land was shown to be of the character offered to be shown, the defendant had a perfect right to cut upon it. U. S. v. Saucier, 5 N. M. 569; Act Congress, June 3, 1878 (Supp.

Error, from a judgment for defendant for the value of the property replevied and damages for its detention, to the Fourth Judicial District Court, San Miguel County. The facts are stated in the opinion of the court. The right of the party appealing to dismiss his appeal and stop all further proceedings in the case at any time before it is submitted to the jury, which would exist independent of statute, is expressly given by the statutes of this territory. Comp.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. “Where the transaction between the parties is in reality and in its legal effect a contract of sale, conditional upon the payment of the purchase price in sueeessive installments, it can not be modified, nor its legal effects avoided by the fact that they speak of it as a ‘lease’ and call the installments ‘rent.’ ” 3 Am. and Eng.

Error, from a judgment for defendants, to the Second Judicial District Court. The facts are stated in the opinion of the court. A claim which has not been presented to the accounting officers of the treasury and disallowed can not be given in evidence notwithstanding its apparent equity. Railroad v. U. S., 101 U. S. 543; Halliburton v. U. S., 13 Wall. 63.

Error, from a judgment for plaintiffs, to Third Judicial District Court, Grant County. The facts are stated in the opinion of the court. The value of property or damage for wrongful taking is not tried in this action. Trover and trespass-are the proper actions in such cases. Comp. Laws 1884, sees. 1974, 1981; Wells on Replevin, sec. 31, note, and secs. 33, 38; 20 Am. and Eng. Ency. of Law, 1044, 1045; St. Martin v. Desnoyer, 1 Minn. 41.

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. An attachment under our statutes can not issue on the ground of nonresidence solely, unless all the debtors are nonresidents, so that process can not be served upon them. Curtis v. Hollingshead, 14 N. J. Law, 408-410; Cowden v. Harford, 4 Ohio, 133-135; Taylor v. McDonald, Id. 150-156; Leach v. Cook, Trustee, 10 Yt. 239.

Onbeheabing. Laughlin, J., concurring, and Bantz and Hamilton, JJ., in result. The additional facts are stated in the opinion of the court.

Error, from a judgment of conviction for murder, to the First Judicial District Court, Santa Fe County. The facts are stated in the opinion of the court. The judgments of the district courts of this territory, in criminal cases, are reviewable in the supreme court of the territory by writ of error. Rev. Stats., U. S., secs. 1868, 1869; Rice v. Rex, Cro.

Error, from a judgment of conviction for murder in the first degree, to the Fourth Judicial District Court, San Miguel County. Rule directing the clerk of the fourth district to send up the transcript of the record and proceedings in this cause, made absolute. Laughlin, J., dissenting. The facts are stated in the opinion of the court. The court erred in not instructing the jury as to the different degrees of murder.

Appeal, from a judgment of the Fourth Judicial District Court, San Miguel County, convicting defendant of murder in the first degree. Bantz and Hamilton, JJ., concurring in result, Laughlin, J., dissenting. The failure of the court to instruct the jury, as requested by defendant, as to the testimony of the witness, Ortega, who testified he did not understand what an oath was or its nature, was reversible error.

Appeal, from the Second Judicial District Court, Bernalillo County, sustaining a demurrer to an indictment against defendant for perjury. The facts are stated in the opinion of the court. While an averment of the materiality of false testimony is necessary in an indictment for perjury, yet the pleader may, at his election, say that it was material, or set forth such facts as to show its materiality in law. 2 Bish. Crim. Proc., sec. 921; State v. Sharpe, 85 Am.

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

Appeal, from a judgment of conviction for murder in the second degree, from the Fifth Judicial District Court, Lincoln County. The facts are stated in the opinion of the court. Where there is even slight evidence that the offense committed may have been of a lower degree than the one charged, it is proper for the court to give to the jury the law of such offense. State v. Patterson, 34 Pac. Pep. (Kan.) 784; Territory v. Young, 2 N. M. (Gil.) 93.

Appeal, from a judgment of conviction for murder, from the Fourth Judicial District Court, Mora County. The facts are stated in the opinion of the court. “In a criminal case, the establishment of a prima facie case only does not take away the presumption of defendant’s innocence, nor shift the burden of proof. Agletree v. State, 28 Ala. 693; People v. Milgate, 6 Cal. 543; 1 Bouv. Law Die. 227; 1 Benn. & Heard, Lead. Crim. Cases, 352; 9 Mete. (Mass.) 93; 5 Cush. 296; 2 Gratt.

Error, from a judgment of conviction for murder, to the First Judicial District Court, Rio Arriba County. The facts are stated in the opinion of the court. • The defense of alibi needs only to be established to the extent of raising in the minds of the jurors a reasonable doubt as to its truth, and the burden is never on the defendant to prove the same. Toler v. State, 16 Ohio, 583; Fife v. Comm., 9 Pa.

Appeal, from a judgment of conviction for murder, from the Fifth Judicial District Court, Eddy County. Collier, J., and Bantz and Hamilton, JJ., concurring in the result.- The facts are stated in the opinion of the court.

Error, from a judgment of conviction for murder, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. The court erred in confining the jury to either a verdict of murder in the first degree, or an acquittal. The jury should have been instructed as to murder in the second'and third degrees and allowed to-deliberate as to these forms of verdict. Kelner v. State, 63 Am.

Appeal, from a judgment of the First Judicial District Court, Taos County, convicting defendant of assault with intent to kill. The facts are stated in the opinion of the court. The instructions of the court are erroneous. They direct the jury to conclude that an assault to kill was committed, when the assault itself only amounted to bodily injury, and to conclude an intent to kill from the mere fact that an assault had been committed. Law.

Appeal, from a decree for complainant for a sale of decedent’s real estate, from the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court.

Petition for writ of babeas corpus. A court in this territory can not enforce a decree simply for the payment of money by process of attachment for contempt and imprisonment. Noonan v. Lee, 2 Black. 499; Orchard v. Hughes, .1 Wall. 73. These decisions were rendered on the provision of rule 92 with reference to foreclosure cases, which is e*xpressly applicable to territorial courts. Equity Buie 92, U. S. Cir. and Disct. Ot.; Comp.

Error, from a judgment for plaintiffs, to the Second Judicial District Court, Valencia County. The facts are stated in the opinion of the court. The motion to dismiss should have been sustained. Laws 1891, p. 122. It was error to swear the jury and proceed to the trial of the case, over defendant’s objections, before the issues were made up. Miles v. Eose, 17 Fed. Cas. 288; Everhard v. Hickman, 4 Bibb. (Ky.) 341; Bail-road v. Cristin, 5 W. Ya. 325.

The facts are stated in the opinion of the court. Exemption laws should be construed liberally in favor of the debtor. Montague v. Richardson, 63 Am. Dec. 173; Carpenter v. Harrington, 37 Id. 272; Rockwell v. Hubbell, 45 Id. 252; Favers v. Glass, 58 Id. 272; Thomp. on Horn. & Exempts., sec.. 5 and citations; Id., secs. 7, 731. Property owned by a debtor as a member of a partnership is alike within the letter and spirit of the exemption laws. Stewart v. Brown, 93 Am.

Ebbob, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. The facts are stated in the opinion of the court. A strained interpretation, by interpolating into the language used by the legislature an exception not therein expressed, and not necessarily implied from the language used, should not be favored in construing a statute of this character. Sedg. Stat. Const;, 251, 265; Priestman v. U. S., 4 Dallas, 30.

Error, from a judgment for plaintiff, to the Second Judicial District Court, Bernalillo County. Bantz, J., dissenting. The facts are stated in the opinion of the court. The court below was correct in holding that the contract was a partnership agreement. Dalton v. Hawes, 37 Ga. 115; Parker v. Canfield, 37 Conn. 250; Wood v. Beath, 23 Wis. 258; Whitney v. Ludington, 17 Id. 141, 142; Miller v. Price, 20 Id. 120; Cushman v. Bailey, 1 Hill. 526; Dob v. Halsey, 16 Johns. 34,40.

<p>Error, to the Second Judicial District Court, Bernalillo County.</p>

<p>The defendant in this cause was convicted of a violation of the banking law, and appealed. The judgment was affirmed (7 N. M. 532), and a suspension of sentence was asked by the attorney general of the United States, which was denied. No opinion filed.</p>

<p>Habeas Corpus — Appeal.—An appeal will not lie from the supreme court of this territory to the supreme court of the United States in habeas corpus cases. Cross v. Burke, 146 U. S. 82; In re Lennon, 150 U. S. 393; In re Delgado, 140 U. S. 586, distinguished.</p>

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. It was the duty of the court to instruct the jury as to the law of this case, and its failure to do so is sufficient ground for reversal. Comp. Laws 1884, sec. 2054.

Appeal, from the Second Judicial District Court, convicting defendant of unlawfully cutting timber on the public domain. The facts are stated in the opinion of the court. The court erred in not granting appellant a new trial because of the misconduct of certain of the jurors impaneled to try the cause.

Appeal, from an order of the Second Judicial District Court, Bernalillo County, requiring the receiver of defendant company to pay certain taxes. Bantz, J., dissenting. The facts are stated in the opinion of the court.

On Rehearing. Laughlin and Bantz, JJ., dissenting. No ground for rehearing is set up which did not constitute subject-matter of the decision of the court in this cause reported in 8 N. M. 169. Rehearings will not be granted on such a showing. Mount v. Mitchell, 32N. T. 702; Eosdick7s Exor. v. Hempstead, 126 Id. 651;; 56 Id. 94; 8 Minn. 540. See, also, Teaz v. Corystie, 2 Abb.