Padilla v. Territory.

• Decision Date: 01 September 1896
• Citation: 45 P. 1120,8 N.M. 562
• Parties: PADILLAv.TERRITORY.
• Court: New Mexico Supreme Court

8 N.M. 562

45 P. 1120

PADILLA

v.TERRITORY.

Supreme Court of the Territory of New Mexico.

Sept. 1, 1896.

Error to district court, Rio Arriba county; before Justice N. B. Laughlin.

Perfecto Padilla was convicted of murder, and brings error. Affirmed.

Error in giving or refusing instructions to which no exceptions were saved is not reviewable.

Chas. A. Spiess, for plaintiff in error.

John P. Victory, Sol. Gen., for the Territory.

COLLIER, J.

This cause comes up to this court upon writ of error, the plaintiff in error, Perfecto Padilla, having been convicted in the district court of the county of Rio Arriba of murder as charged in the indictment, and sentenced to be hanged. The indictment charges in an exclusive way and by apt averments the crime of murder in the first degree, and the verdict needs no other aid than the indictment for a clear understanding of its import and meaning. All the proceedings had and apparent upon the record proper show due procedure in the cause, and therefore the judgment of the lower court should be affirmed, unless other error, duly excepted to, and the exception saved and incorporated in a bill of exceptions, is reviewable here, and is adjudged reversible. There is a bill of exceptions made a part of the record in the cause, but it includes merely the testimony of the defendant given on the trial of the case, with some minor exceptions to the rulings of the court upon objections made, and the instructions of the court to the jury, as to which no exceptions were taken; and the bill of exceptions fails to show that any motion for new trial was made in the cause. The only error alleged here is to the instruction of the court upon the subject of alibi, testified to by defendant. In Territory v. O'Donnell, 4 N. M. 66, 12 Pac. 743, and Territory v. Baker, 4 N. M. 117, 13 Pac. 30, this court held, even where there is a motion for a new trial in the trial court, that where no objection or exception was shown by the record to have been made to the instructions, they could not be considered here. It is specifically held that our statute requiring exception to be taken at the time of the court's decision applies as well to criminal as to civil cases. Comp. Laws, § 2197. Several decisions of our own court are cited in that case to the same effect, such as Territory v. Yarberry, 2 N. M. 391; Leonardo v. Territory, 1 N. M. 291; Coleman v. Bell, 4 N. M. 46, 12 Pac. 657, and decisions from many states, and others from the United States supreme court, - e. g. U. S. v. Breitling, 20 How. 252; Wood v. Weimar, 104 U. S. 786. Since the O'Donnell and Baker Cases this court has frequently enforced the plain provisions of our statute as to the taking of exceptions, as see Sierra Co. v. Dona Ana Co. (N. M.) 21 Pac. 83, and the case of Laird v. Upton (handed down at this term) 45 Pac. 1010. As to whether rulings upon questions of law decided in the progress of the cause, and not in the record proper, can be reviewed at all without motion for a new trial, notwithstanding there is a bill of exceptions, no case of this court has been called to our attention. There is abundant authority in support of the contention that the trial court must be given an opportunity to review its rulings made on the trial before they will be considered here. Facts in evidence will not, this court has decided, be considered on review without such motion. Spiegelberg v....