State v. Padilla.

• Decision Date: 01 February 1914
• Citation: 18 N.M. 573,139 P. 143
• Parties: STATEv.PADILLA.
• Court: New Mexico Supreme Court

18 N.M. 573

139 P. 143

STATE

v.PADILLA.

Supreme Court of New Mexico.

Feb. 1, 1914.

Syllabus by the Court.

The correctness of instructions given by the trial court will not be reviewed by the Supreme Court, unless exception is taken to the giving of such instruction at the time they were given.

The failure of the court to instruct the jury on all of the law applicable to the case cannot be taken advantage of, unless excepted to at the time the jury is instructed.

A variance between the allegations in the indictment and the proofs at the trial cannot be raised on a motion for a new trial, and cannot be assigned as error in this court unless the question was raised at the trial of the case and the court trying the same given an opportunity to pass upon the question.

Where there is substantial evidence to support a verdict, the appellate court will not disturb it.

A new trial on the ground of newly discovered evidence will not be granted for evidence that was known to defendant at the time of the trial.

Appeal from District Court, Colfax County; Leib, Judge.

Candido Padilla was convicted of breaking and entering a building in the nighttime, with intent to commit larceny therein, and appeals. Affirmed.

A verdict of conviction on conflicting testimony will not be disturbed on appeal.

J. Leahy, of Raton, for appellant.

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

NEBLETT, District Judge.

Appellant was indicted by the grand jury of Colfax county for breaking and entering the shop of Max Karlsruher in the nighttime with intent to commit larceny therein, and was tried in the district court of said county and found guilty as charged in the indictment, and sentenced by the court to imprisonment in the state penitentiary for not less than two years nor more than three years and to pay the costs of this prosecution.

[1] 1. It is urged by appellant in his brief that instructions numbered 6 and 7, given by the court of its own motion at the trial of this case, are erroneous. The record in this case nowhere shows that exceptions were taken to the giving of these instructions by the court at the time they were given, nor does counsel set up as error the giving of such instructions in his motion for a new trial. It is a well-settled rule of this court, decided in numerous cases, that this court will not review any alleged error in instructions given by the trial judge unless exceptions are saved at the time of the giving of same and an opportunity given the trial court to correct the error. The most recent cases decided by this court sustaining this view are State v. Eaker, 131 Pac. 489; State v. Lucero, 131 Pac. 491.

[2] 2. It is assigned as error by appellant in his motion for a new trial that the trial court failed to fully and sufficiently instruct the jury on the law of the case and the issues raised at the trial. An examination of the record discloses that no instructions covering defendant's views of the issues raised in this case by the evidence were submitted by the defendant to the court to be given to the jury. Without passing upon the question as to whether or not the instructions given by the trial judge in this case covered all the issues raised, it is well settled that the nondirection by the court to the jury of a material issue raised by the evidence cannot be reviewed on appeal unless proper instructions covering the issues are submitted by the defendant and refused by the court. In the case of Territory v. Gonzales, 11 N. M. 301, 68 Pac. 925, this court said: “Where counsel are of opinion that the court's instructions do not fully cover the issues in the case, it is the duty of counsel to submit proper instructions covering omissions claimed in the trial court; and, if counsel fail to do so, he is not in position to assign error upon such grounds in this court.” This principle, as laid down in the Gonzales Case, was upheld and followed in the case of Territory v. Watson, 12 N. M. 419, 78 Pac. 504.

It is provided by the laws of New Mexico, chapter 57, Laws of 1907, § 37: “Exceptions to the decisions of the court upon any matter of law arising during the progress of a cause must be taken at the time of such decision and no exceptions shall be taken in any appeal to any proceeding in a district court except such as shall have been expressly decided in that court. * * * This statute is a re-enactment in exact words of section 3139 and section 3145 of the Compiled Laws of New Mexico, 1897. It was held by this court in the case of Territory v. Watson, supra, that section 3145 of the Compiled Laws of 1897 is applicable in criminal cases as well as in civil cases.

[3] 3. The indictment in this case alleges that the shop of Max Karlsruher, was burglarized, and the testimony offered in this case was as to the breaking and entering of the store of Max Karlsruher. Counsel for appellant claims that...