State v. Eaker.

• Decision Date: 04 March 1913
• Citation: State v. Eaker, 17 N.M. 479, 131 P. 489, 1913 NMSC 9 (N.M. 1913)
• Parties: STATEv.EAKER.
• Court: New Mexico Supreme Court

17 N.M. 479

131 P. 489

STATE

v.EAKER.

Supreme Court of New Mexico.

March 4, 1913.

Syllabus by the Court.

Ordinarily neither the verdict of a jury nor the finding of fact of a trial court will be disturbed in this court when they are supported by any substantial evidence.

Where a party complains of an alleged erroneous decision of the court trying the cause, either in the exclusion or admission of evidence, he must point out in his motion for a new trial with reasonable certainty the particular evidence admitted or excluded; otherwise the court below need not, and the Supreme Court will not, consider such alleged erroneous decision.

The correctness of instructions given by the trial court will not be reviewed by the Supreme Court, unless objection is interposed to the giving of such instruction and an exception saved.

Appeal from District Court, Lincoln County; E. L. Medler, Judge.

George Eaker was convicted of assault with intent to rob, and appeals. Affirmed.

Ordinarily neither the verdict of a jury nor the finding of fact of a trial court will be disturbed in this court when they are supported by any substantial evidence.

Prichard & Howard, of Santa Fé, for appellant.

H. S. Clancy, Asst. Atty. Gen., for the State.

ROBERTS, C. J.

Appellant was jointly indicted with one Daniel Bullion, by the grand jury of Lincoln county, charged with making assault upon one William D. Wilson with intent to rob and take from him, said Wilson, his money, goods, etc. The cause was tried on the 20th day of May, and the jury returned a verdict finding both defendants guilty as charged. A motion for a new trial was filed by the appellant, which was overruled by the court, and appellant was sentenced to the state penitentiary for a term of not less than two, nor more than three, years. From such judgment this appeal is prosecuted.

[1] The principal contention urged by the appellant, in support of a reversal, is that the verdict of the jury was contrary to the evidence. It has been repeatedly held by the territorial Supreme Court that “ordinarily neither the verdict of a jury nor the finding of fact of a trial court will be disturbed in this court when they are supported by any substantial evidence.” Territory v. Sais, 15 N. M. 171, 103 Pac. 980; Territory v. Trapp, 16 N. M. 700, 120 Pac. 702. We have carefully read the record and find facts and circumstances in evidence from which the jury might properly have drawn the conclusion that the defendant was guilty, that he was acting in concert with his codefendant; and therefore we cannot disturb the verdict. The insufficiency of the evidence was called to the attention of the trial court in the motion for a new trial. The lower court and the jury heard the witnesses on the stand, were able to observe their appearance and demeanor while testifying, and were thus enabled more nearly to arrive at the truth than could the appellate court by reading the record. If the trial judge entertained a reasonable doubt as to the guilt of the defendant, he should, and doubtless would, have granted him a new trial. The verdict is supported by substantial evidence, and we cannot therefore set it aside.

[2] It is next urged that the court erred “in permitting the district attorney to inquire into the financial condition of the appellant prior to the alleged offense over the objection of the appellant.” The record discloses that the district attorney, over appellant's objection, asked the prosecuting witness the following question: “During the afternoon, at any time, did you have any conversation with these defendants,...