State v. Klasner.

• Citation: 19 N.M. 474,145 P. 679
• Decision Date: 12 February 1914
• Docket Number: No. 1567.,1567.
• Parties: STATEv.KLASNER.
• Court: Supreme Court of New Mexico

19 N.M. 474

145 P. 679

STATE

v.KLASNER.

No. 1567.

Supreme Court of New Mexico.

Feb. 12, 1914.On Rehearing, Dec. 1, 1914.Appellant's Motion for Rehearing Denied Jan. 9, 1915.

Syllabus by the Court.

A count of an indictment charging that defendant, “at the time and place named, nineteen head of calves, of the goods, chattels, and property of owners to the grand jury unknown, then and there being found, did then and there unlawfully, etc., steal, take,” etc., is not bad for duplicity, as it prima facie discloses that the larceny occurred at the same time and place, and constituted but a single transaction.

Where, upon the trial, witnesses testify that certain known parties owned the alleged stolen animals, and the indictment charges that the owners of the animals are unknown to the grand jury, it is incumbent upon the state to prove that the names of the owners were unknown to the grand jury and could not, by reasonable diligence, have been ascertained.

On rehearing, it having been called to the attention of the court that no motion was made for an instructed verdict on the ground of a variance between the indictment and proof, or such variance in any manner called to the attention of the trial court, the judgment of reversal is set aside, as it is a well–established rule of this court that the question of variance, between the allegations in the indictment and the proof, unless raised in the court below, cannot be reviewed here.

Where the name of the owner of an alleged stolen animal is alleged in the indictment to be unknown, it is not incumbent upon the state to prove, in the first instance, affirmatively, that such fact was unknown to the grand jury; but it must show that such name is unknown, or prove such a state of facts or circumstances as render the alleged unknown fact uncertain, in which event such fact is presumed to have been unknown to the grand jury. But if there is evidence tending to show that the grand jury did know, or could by the exercise of reasonable diligence have known or ascertained, the name of the true owner, or that it was negligent or perverse in not alleging what was at its command to know, then the burden is upon the state to show that the grand jury did not know such alleged unknown name.

Failure to formally arraign a defendant is not a fatal objection, where such defendant was present in court and testified as a witness upon his trial in his own behalf, and was represented by counsel, and no objection is interposed to proceeding with the trial without such arraignment.

Where no exceptions are taken to instructions given by the court of its own motion, error cannot be assigned upon such instructions.

Declarations made by a defendant in his own favor, unless a part of the res gestæ, or of a confession offered by the prosecution, are not admissible for the defense.

No error is committed in sustaining an objection to a hypothetical question propounded to a witness, where such question is not based upon facts as to which there is such evidence that a jury might reasonably find that they are established.

Where a motion for a new trial is based on the ground of newly discovered evidence, such motion must, in addition to the affidavit of the applicant, be supported by the affidavits of the new witnesses, which must set forth the newly discovered evidence and the facts to which such witnesses will testify, or a satisfactory excuse must be given for not obtaining such affidavits.

Additional Syllabus by Editorial Staff.

As used in an indictment, the word “then” is an adverb of time, meaning “at that time,” and the phrase “then and there” means at the time and place charged, and refers to a single transaction.

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

Lillie C. Klasner was convicted of larceny, and appeals. Affirmed.

Where the name of the owner of an alleged stolen animal is alleged in the indictment to be unknown, it is not incumbent upon the state to prove, in the first instance, affirmatively, that such fact was unknown to the grand jury; but it must show that such name is unknown, or prove such a state of facts or circumstances as render the alleged unknown fact uncertain in which event such fact is presumed to have been unknown to the grand jury, but if there is evidence tending to show that the grand jury did know, or could, by the exercise of reasonable diligence have known, or ascertained the name of the true owner or that it was negligent or perverse in not alleging what was at its command to know, then the burden is upon the state to show that the grand jury did not know such alleged unknown name.

Renehan & Wright, of Santa Fé, for appellant.

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

ROBERTS, C. J.

[1] Appellant was indicted, tried, and convicted in the district court of Lincoln county upon the second count of an indictment charging her with the larceny of 19 head of calves, “of the goods, chattels and property of owners to the grand jurors unknown.” It is contended by appellant that the indictment is fatally defective, because it charges more than one offense in the same count. The contention is predicated upon the assumption that the state, by using the plural, “owners,” meant to charge that the property alleged to have been stolen had more than one owner, and, such being the case, more than one offense was charged in the same count. Accepting as correct appellant's construction that the count charged the larceny of property belonging to different owners, would it follow that the same was demurrable? If the indictment can be said to charge but one offense against the state, it would not be open to the objection that it is bad for duplicity. On the other hand, if it attempts to charge two or more distinct offenses, it would be demurrable. This indictment, omitting the formal parts, reads as follows:

“That Lillie C. Klasner * * * on the 24th day of August in the year one thousand nine hundred and nine, at,” etc., “nineteen head of calves, of the goods, chattels and property of owners to the grand jurors aforesaid unknown, then and there being found, did then and there unlawfully, knowingly, and feloniously steal, take, lead and drive away, and the said property did then and there, and in the manner aforesaid,” etc.

If we give to the language used, a fair and reasonable construction, it becomes apparent that but one offense is attempted to be charged.

[10] The pleader says that appellant did the acts “then and there”; that is, at the time and place charged she did steal, take, lead, and drive away the property.

“Then, as an adverb of time, means ‘at that time,’ referring to the time stated; and the necessary import of the words ‘then and there,’ as employed in the information, is that the larceny of the $9.50 in money as a whole, a part of which is charged as belonging to Jane Engle and a part to Samuel Engle, occurred at the same time and place, and constituted but a single transaction.” Furnace v. State, 153 Ind. 93, 54 N. E. 441.

The language quoted from the above case disposes of appellant's contention that several distinct crimes are charged in the same count. While the property is alleged to belong to more than one person, but one taking is charged. In other words, appellant is charged, at the same time and place, with having stolen property belonging to divers owners. As the Indiana Supreme Court further say in the above–cited case:

“We recognize no good reason to depart from what may be considered the great current of authority, and hold the pleading in question bad, when it can reasonably be said that it discloses that the larceny complained of was but a single act or transaction in violation of the law against larceny, although the property which was the subject of the crime belonged to several different persons. The particular ownership, as charged in the pleading, of the money stolen, did not give character to the act of stealing it, but was merely a part of the description of the particular crime charged to have been committed. The information, prima facie, under the circumstances, can be said to charge but one offense against the state, and is not open to the objection that it is bad for duplicity.”

The principle enunciated by the court is supported by a long list of authorities, which will be found collected in the case cited. See, also, State v. Laws, 61 Wash. 533, 112 Pac. 488. The indictment charged but a single offense, and the demurrer on the ground stated, was properly overruled.

[2] The cause must be reversed, however, because of the failure of the state to offer any evidence in support of the allegation in the indictment that the defendant stole, took, led, and drove away 19 head of calves, “of the goods, chattels and property of owners to the grand jury unknown.” Upon the trial of the cause witnesses for the state testified to the names of the owners of the calves in question, but there was no attempt whatever by the state to prove that the owners of the animals in question were unknown to the grand jury, and that the grand jury by reasonable investigation could not have ascertained the names of the true owners.

“Ownership must be proved by sufficient evidence, or the conviction cannot be supported. Where the owner is alleged in the indictment as unknown, there can be no conviction unless it is proved that the grand jury did not know his name and could not discover it by due diligence. 25 Cyc. 125.” Sharp v. State, 29 Tex. App. 211, 15 S. W. 176.

“Ownership, except as statutes have varied the unwritten rule, must be proved as laid, because it identifies the offense, distinguishing it from all other instances.” Bishop's New Criminal Procedure, § 488b.

In the case of Stone v. State, 30 Ind. 115, the Supreme Court of Indiana discussed the failure of the state to offer proof to support an allegation that the Christian name of the defendant was unknown to the grand jurors, and held the omission...