Garcia v. Territory of N.M..

• Decision Date: 31 January 1869
• Citation: 1 N.M. 415
• Parties: NESTOR GARCIAv.TERRITORY OF NEW MEXICO.
• Court: New Mexico Supreme Court

1 N.M. 415

NESTOR GARCIA

v.TERRITORY OF NEW MEXICO.

Supreme Court of the Territory of New Mexico.

Jan. 1869.

Under the Organic Act providing that the legislative assembly of the territory shall have power to legislate upon all rightful subjects of legislation consistent with the constitution of the United States and the provisions of such act, the punishment of larceny was a “rightful subject of legislation”. Organic Act, § 7.

*1 APPEAL from the district court for Bernalillo county. The facts are stated in the opinion.

M. Ashurst, for the appellant.S. B. Elkins, attorney-general, for the appellee. By Court, WATTS, C. J.:

Nestor Garcia was indicted by the grand jury for Bernalillo county, in the second judicial district, at the May term of said court, 1868, for larceny. The indictment charges him with stealing one mule of the value of two hundred dollars, of the goods and chattels and personal property of Felipe Chaves.

A warrant for his arrest was issued and Garcia was arrested and brought into court. Garcia being without counsel to defend him, W. H. Henrie, an attorney-at-law of that court, was appointed to defend him. Garcia, on hearing the indictment read to him, pleaded not guilty; and a jury was called to try the case, and after hearing the evidence, brought into court the following verdict: “We the jury do find the defendant guilty in manner and form as charged in the indictment herein.” A motion was made for a new trial, and to set aside the verdict upon various grounds set forth in the motion, and after argument had, said motion for a new trial was overruled by the court. A motion was then made to arrest the sentence and judgment in the case, which motion was overruled by the court. The court then proceeded to render the following judgment in the case: “Now the said defendant being asked if he had anything to say why sentence should not pass in conformity with the verdict, answered, nothing. It is therefore considered by the court, that the said defendant Nestor Garcia, be whipped on Monday next, in conformity with the law, receiving thirty lashes on the bare back, well laid on, and that he be confined in the county jail of Bernalillo county until the costs in this behalf laid out and expended, to be taxed, be fully paid and satisfied.”

The defendant in the court below, Nestor Garcia, then made the usual affidavit and gave the usual bond, and his case was appealed to the supreme court. A bill of exceptions setting forth the motion for a new trial, and in arrest of judgment, and the overruling of the same, was then tendered to the judge and signed by him. The record then contains what purports to be a copy of an affidavit of J. Bonifacio Chaves, purporting to set forth the evidence upon the trial of the case; but as the record does not show that any bill of exceptions containing all the evidence in the case as given by the witnesses was ever presented to the judge in the court below for signature, or ever signed by him, it is not important to consider what the evidence might have been on the trial, or any questions as to the legality or illegality of the evidence admitted by the court below for the consideration of the jury, or the legal accuracy of the instructions to the jury.

In the compiled laws of New Mexico under the head of crimes, punishments, etc., sec. 37, pp.340, 341, we find the following enactment upon which the indictment in this case is based, to wit: “Every person who shall be convicted of stealing a horse, mare, colt, or filly, horse mule or mare mule, ass or jennet, bullock, cow, or calf, sheep, goat, or hog, shall be punished by not less than thirty lashes, well laid on his bare back, nor more than sixty, at the discretion of the...