State v. Hughes.

• Decision Date: 31 December 1938
• Docket Number: No. 4383.,4383.
• Citation: 43 N.M. 109,86 P.2d 278
• Parties: STATEv.HUGHES.
• Court: New Mexico Supreme Court

43 N.M. 109

86 P.2d 278

STATE

v.HUGHES.

No. 4383.

Supreme Court of New Mexico.

Dec. 31, 1938.

Appeal from District Court, Colfax County; Livingston N. Taylor, Judge.

Rual F. Hughes was convicted of unlawfully, feloniously and knowingly selling cattle, the property of another, and he appeals.

Reversed and remanded, with instructions.

In prosecution for knowingly selling cattle, the property of another, refusing instruction that knowledge of defendant's brother, who actually made the sale, could not be imputed to defendant, held reversible error, in view of court's ruling on evidence and remarks and of cross-examination of brother unduly emphasizing effect of brother's knowledge.

Robert A. Morrow, of Raton, and Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, for appellant.

Frank H. Patton, Atty. Gen., and Richard E. Manson, Asst. Atty. Gen., for the State.

BICKLEY, Justice.

R. F. Hughes was convicted of unlawfully, feloniously and knowingly selling three head of neat cattle, the property of another, and sentenced by the court to not less than three years nor more than five years. From the conviction and sentence of the court he appeals.

[1] The first assignment of error is as follows: “The court erred in refusing to give defendant's requested instruction No. 1.”

This requested instruction is as follows: “You are instructed, Gentlemen of the Jury, that even though you should find and believe from the evidence beyond a reasonable doubt, that Ira Hughes, at the time the sale of the cattle in question was made, had knowledge that said cattle were the property of William Van Bruggen, still that knowledge, if Ira Hughes had it, could not be imputed to the defendant, and before you could convict the defendant of the crime charged, you must find and believe beyond a reasonable doubt, from the evidence in the case that the defendant, R. F. Hughes, himself had knowledge that the cattle in question were the property of William Van Bruggen, if you find they were; and unless you do find and believe from the evidence beyond a reasonable doubt that the defendant had knowledge at the time the sale was made that the cattle were the property of William Van Bruggen, you must find him not guilty of the crime charged.”

Defendant's principal defense was lack of knowledge that the cattle sold were the property of anyone else but himself. If defendant's testimony was true he was not guilty of violating the statute under which he was prosecuted.

The state attempted to prove ownership of the cattle sold in William Van Bruggen by showing that they bore Van Bruggen's registered brand, a Diamond V There was considerable conflict in the evidence introduced to prove the presence of the brand. The next step in the prosecution's case was to show knowledge by defendant that the cattle bore the Diamond V. brand. In connection with this phase of the case an effort was made to show knowledge of the above facts on the part of Ira Hughes, defendant's brother, who actually made the sale. A question by the district attorney, addressed to Charles Roundtree, a cattle inspector for the Regional Agricultural Credit Corporation, who was present the day the sale was made, as to what Ira Hughes said regarding the cattle for sale, was objected to by defendant's counsel on the ground that it was conversation had out of the presence of the defendant. The court overruled the objection with the remark: “I understand Ira Hughes was agent for the defendant.” A little further on the district attorney asked Mr. Roundtree the following question: “Did you have any conversation with Mr. Ira Hughes, who, you say, was in charge of the cattle as to brands on these cattle?” to which defendant's attorney made the following objection: “The defendant objects to this question as being incompetent and wholly immaterial for the reason that even though the defendant might have been the agent on a contractual relationship between the purchaser of the cattle and the owner thereof, that any statements he made at that time, that is, Ira Hughes made at that time, would show his knowledge and not the knowledge of the defendant R. F. Hughes, who was, according to the testimony, not present at all. Any statement made by Ira Hughes as to brands could serve no purpose in this case except as to knowledge of Ira Hughes as to brands, the defendant being absent, no declaration made by him could bind the defendant R. F. Hughes, and if there were brands at all it will doubtless be attempted to be connected in some way and this defendant could never be convicted unless it is shown that he knew for himself and not through an agent or anybody else, that there was some brand on these cattle which might show present or past ownership in William Van Bruggen and no man can ever be convicted for any crime done by an agent. This Information charges that he unlawfully, feloniously and knowingly committed an act, and it does not make any difference what Ira Hughes said about any brands as binding on this defendant, so we object...