State v. Graves
| Decision Date | 22 September 1915 |
| Docket Number | 1746. |
| Citation | 157 P. 160,21 N.M. 556,1915 -NMSC- 076 |
| Parties | STATE v. GRAVES. |
| Court | New Mexico Supreme Court |
On Motion for Rehearing, May 1, 1916.
Syllabus by the Court.
The provisions of section 1529, Code 1915, concerning punishment of certain crimes, are not in conflict with section 1613, Code 1915.
Nonjurisdictional questions raised here for the first time will not be considered by the court.
On a prosecution for a particular crime, evidence which shows or tends to show that accused has committed another crime wholly independent of that for which he is on trial is irrelevant and inadmissible. But, where other criminal acts of accused form an inseparable part of the whole deed or transaction, or where such acts are concomitant parts of the criminal act evidence thereof is admissible, notwithstanding that it proves or tends to prove the commission of a crime not charged in the indictment.
The verdict of a jury will not be disturbed where there is any substantial evidence to support it.
An exception to a given instruction must specifically point out where the instruction is alleged to be erroneous. When this is not done, and no requested instruction properly stating the law has been tendered, the given instruction is not subject to attack in this court.
It is not error for the court to give, without request, a cautionary instruction concerning the fact that the accused did not take the witness stand to testify in his own behalf.
Where a party asks for a new trial on the ground of newly discovered evidence, he must show that such evidence could not have been discovered prior to the trial by the exercise of due diligence.
It is within the range of legitimate argument for counsel to discuss all inferences which may be drawn from the evidence and to impress them upon the jury.
Where there is no substantial evidence to support the verdict of a jury, the judgment entered thereon will be set aside on appeal.
Appeal from District Court, Chaves County; Richardson, Judge.
Roscoe T. Graves was convicted of larceny, and appeals. Reversed and new trial awarded.
W. W. Gatewood, of Roswell, and R. L. Graves, of Brownfield, Tex., for appellant.
Ira L. Grimshaw, Asst. Atty. Gen., for the State.
Will Vermillion, a stockman of Hagerman, N. M., lost a number of cattle in the fall of 1911 or 1912, because of a flood of Felix creek, which tore down a portion of the fence inclosing his pasture. Among the animals which escaped at that time was a brindle and white spotted muley yearling steer branded "7HY" left shoulder, side, and hip, "NZ" or "HZ" on right side, and a small "L" on left hip. The animal was a favorite of its owner on account of its gentle disposition. Vermillion saw nothing of the steer after this time until the winter of 1913, when he went to La Mesa, Tex., about 213 miles east of Roswell, where the animal, with others, was found in the possession of the Texas Cattle Association. Vermillion rode into a herd of cattle there and cut this particular steer out from the rest of the herd without regard to the brand marks, identifying the animal by its peculiar color. The animal was roped and inspected, and it was discovered that the old brand marks on the animal had been defaced by running bars through them, and a new brand, "YOU," had been placed upon the steer, the "Y" defacing the "7" of the old brand. The hair had not grown over the fresh brands. The ears of the animal had been cut so that the old earmarks could not be distinguished. The owner had not given permission to appellant to take possession of the animal, nor had he sold it. The animal had been purchased by Vermillion from a man named Hammond, when it was an early yearling.
In the latter part of October, 1913, the appellant, with two of his employés named Nolan Standifer and Grady Woods, drove two or three hundred head of cattle from the ranch of appellant in Chaves county, N. M., to his ranch near Brownfield, Tex. Nolan Standifer did not notice the Vermillion steer in that drive, but did notice two animals branded "hip O," which he recognized as the property of Spence Jouell. These two "hip O" steers were driven with the rest of the herd from New Mexico to Texas. The herd arrived in Texas at appellant's ranch after dark on a Saturday night and were put in a pasture. The following Monday morning the appellant cut out five head of steers from the herd which he had driven from New Mexico and personally roped and branded them. One of the five was the Vermillion animal. It was branded by appellant as heretofore mentioned and the ears were cut. The brands on the other four animals were defaced, and the "YOU" brand of appellant placed upon them. They were then driven back into the herd, and later in the day cut out from the herd again and held temporarily some distance from the ranchhouse, when they were driven to a two-section pasture of appellant about 2 1/2 miles distant from his ranchhouse. One of the witnesses testified that there were no other cattle in the two-section pasture except the five which had been branded by appellant, while other witnesses testified that the five were pastured with about eighty-five other head. The cattle inspector of the Texas Cattle Association discovered these five burned steers in appellant's pasture, and cut them out from the other cattle and drove them to the ranch of a neighbor about 5 miles distant. Subsequently appellant returned to his ranch from a trip and offered to sell to a Mr. Bryant all the cattle he had running in the "YOU" brand. Appellant exhibited two bills of sale to Bryant and asked the latter to place his signature on them as a witness to the transaction, but Bryant declined on the ground that he could not identify the animals, and stated that he did not want his name connected with the transaction. At the time the cattle inspector roped and inspected the Vermillion steer the hair on the animal was long and it was difficult to decipher the old brands on the animal. The hair was sheared, and the old brands then were plainly shown. The other two of the five steers branded by appellant were owned by T. Ray Rice and Bert Muncey, and had been taken without the permission or consent of their owners. The cattle inspector of New Mexico testified that he drove through the herd near the Texas-New Mexico boundary line and discovered no cattle like the Vermillion animal therein. He also testified that no animals bearing the "hip O" brand were in the herd. The appellant did not take the stand. Other facts not necessary to be stated here will be discussed later in the opinion.
1. The appellant was sentenced to a term in the penitentiary of not less than 2 1/2 years, and not more than 5 years, and fined $500. He contends that the sentence was in excess of that authorized by law, and his contention is based upon the theory that section 79 of the Compiled Laws of 1897 (section 1613, Code 1915), which prescribes the penalty for larceny of certain animals, has been impliedly repealed by section 17, c. 36, Laws of 1907 (section 1529, Code 1915).
Section 79, supra, provides, in effect, that any person who shall steal, embezzle, or knowingly drive, etc., any neat cattle, horse, mule, sheep, goat, ass, or swine of another shall be deemed guilty of a felony, and shall be punished by imprisonment for not less than one year nor more than 5 years, and by a fine of not less than $500 nor more than $5,000, at the discretion of the court.
Section 17, c. 36, Laws of 1907, provides:
"Any person convicted of the crime of larceny or of the crime of embezzlement or of the crime of feloniously receiving stolen goods or property, shall be punished by imprisonment in the penitentiary for any period not less than one year nor more than ten years if the value of the property stolen, embezzled or feloniously received shall exceed twenty dollars; and by imprisonment in the county jail for any period not more than three months, or by fine not exceeding one hundred dollars, or both such fine and imprisonment in the discretion of the court if the value of the property shall be twenty dollars or less."
Section 79, supra, is section 15 of chapter 47 of the Laws of 1884, and section 17 of chapter 36 of the Laws of 1907 is identical with section 8, c. 80, Laws of 1891 (section 1187, C. L. 1897), except as to the prescribed periods of punishment.
In the case of Wilburn v. Territory, 10 N.M. 402, 62 P. 968, the question now urged was presented to the court, and it was held that the law of 1884 was not impliedly repealed by the law of 1891, one being an act in special form, enacted for the particular protection of live stock, while the other was a general act defining the punishment of larceny, graded according to the value of the property stolen. That case is decisive of this question and settles it adversely to the contention of appellant.
2. The appellant assigns as error the giving of instruction numbered 8 by the court of its own motion. That instruction was to the effect that the possession of recently stolen property, if not satisfactorily explained, is a circumstance to be taken into consideration by the jury. The appellant argues that the court should not have given the instruction, because: First there was no evidence that the animal had been stolen; and, second, 18 months elapsed from the time the animal escaped until it was recovered from the appellant, and that possession within such time does not, as a matter of law, constitute recent possession. Many authorities are cited by appellant as to what constitutes recent possession, but manifestly each case must depend upon the circumstances surrounding it. But it is unnecessary to determine whether the instruction was erroneous...
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