State v. Craig.

• Decision Date: 12 April 1922
• Docket Number: No. 2676.,2676.
• Parties: STATEv.CRAIG.
• Court: New Mexico Supreme Court

28 N.M. 110

206 P. 513

STATE

v.CRAIG.

No. 2676.

Supreme Court of New Mexico.

April 12, 1922.

Syllabus by the Court.

Where there is no substantial evidence of the corpus delicti, the verdict will be set aside on appeal.

Additional Syllabus by Editorial Staff.

In prosecution for larceny of neat cattle, evidence that defendant drove unbranded cattle from one county to another and there branded them held insufficient to sustain conviction.

Appeal from District Court, San Miguel County; Leahy, Judge.

John T. Craig was convicted of larceny of neat cattle, and he appeals. Reversed, with instructions.

In prosecution for larceny of neat cattle evidence that defendant drove unbranded cattle from one county to another and there branded them held insufficient to sustain conviction.

Geo. H. Hunker, M. E. Noble, Chester Hunker, and C. W. G. Ward, all of East Las Vegas, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

PARKER, J.

John T. Craig was convicted of larceny of neat cattle and appeals. The evidence of the state showed that the appellant, on three or four separate occasions, drove a number of young calves from the Venable and Koenig pastures, in San Miguel county, to the Webber pasture, in Mora county. The calves were then placed in a corral at the Webber ranch, and several days later were branded by appellant with his A slash brand and then turned into the open pasture. The foreman of the grand jury which preferred the indictment testified that the grand jury endeavored without success to ascertain the names of the owners of the calves. It appeared that most of the calves were unbranded before they were driven to the Webber corral.

The question arises as to the sufficiency of that proof to sustain the conviction. At the close of the state's case the appellant moved for a directed verdict. The trial court said:

“The evidence as to that motion is as follows: That John T. Craig did drive or cause to be driven some few head of unbranded calves from the county of San Miguel over into the county of Mora and there branded them. There is a circumstance--young calves, unbranded. Slight, it is true, but it is really a question for the jury to determine--the sufficiency of the evidence--and not the court. The court cannot weigh the evidence. If there is any substantial evidence to support a verdict, it is the duty of the court to let the jury determine. There is a circumstance.”

In Territory v. Caldwell, 14 N. M. 535, 98 Pac. 167, the evidence showed that the appellant was found in the possession of a calf, of the property of Benevides, freshly branded in appellant's brand. The appellant had been seen driving a number of bawling calves on the public road, the calves having been recently separated from their mothers. Other incriminating circumstances appeared. The evidence was held sufficient.

In Territory v. Leslie, 15 N. M. 240, 106 Pac. 378, the evidence showed that the appellants drove some cattle belonging to a corporation into their slaughterhouse and butchered them. This was held to be sufficient to sustain the conviction.

In State v. Lucero, 17 N. M. 484, 131 Pac. 491, it was held that the evidence was sufficient, and that the court “cannot be called upon to exercise the functions of jury.”

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