State v. Pino.

• Decision Date: 01 May 1916
• Docket Number: No. 1844.,1844.
• Citation: 158 P. 131,21 N.M. 660
• Court: New Mexico Supreme Court
• Parties: STATEv.PINO.

21 N.M. 660

158 P. 131

STATE

v.PINO.

No. 1844.

Supreme Court of New Mexico.

May 1, 1916.Rehearing Denied May 27, 1916.

Syllabus by the Court.

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

The general rule is that one crime cannot be proved by establishing another, but to this general rule there are many exceptions. A notable exception is where the two crimes are connected.

Appeal from District Court, Bernalillo County; M. C. Mechem, Judge.

Jose Antonio Pino was convicted of larceny, and appeals. Affirmed.

Rulings on evidence will not be reviewed, unless the evidence admitted or excluded is pointed out in motion for new trial with reasonable certainty.

Heacock & Cornell, of Albuquerque, for appellant.

Harry S. Bowman, Asst. Atty. Gen., for the State.

ROBERTS, C. J.

In April, 1915, the appellant was tried and convicted by a jury in the district court of Socorro county of the larceny of two head of neat cattle, the property of Ricardo Ortega, and was duly sentenced to serve a term in the state penitentiary, from which judgment this appeal is prosecuted.

The facts disclosed by the evidence introduced on behalf of the state may be briefly summarized as follows: In the latter part of August or the first of September, 1914, the prosecuting witness, Ricardo Ortega, discovered that two cows belonging to him were missing from their accustomed range. About the 3d or 4th of September a gentleman, named Vohs, living in Bernalillo, in Sandoval county, who was a stock buyer, wrote Ortega and three or four other stockmen in the same vicinity of Socorro county, asking them to come to Bernalillo for the purpose of identifying cattle bearing their brands. The letter was written under the following circumstances: On the 3d or 4th of September the appellant, going under an assumed name, in company with two other men, drove into the town of Bernalillo 32 head of cattle bearing various brands, and offered to sell them to Mr. Vohs. He observed, however, that several different brands were represented in the herd, and told appellant that he would purchase them at the agreed price of $800, but that it would be necessary for appellant to meet him in Albuquerque later in the day, where he would pay him after arrangements had been made at the bank for the money. Mr. Vohs went to Albuquerque and visited the cattle sanitary board's office and compared a memorandum which he had made of the brands upon the cattle with the official record, and ascertained the names of the owners of these brands. Thereafter he found appellant and called his attention to the fact that there were several dinerent brands represented in the herd, and asked him to produce a bill of sale for these cattle before payment was made. Later appellant returned to Bernalillo and demanded payment without producing the bills of sales, and finally asked for an advancement of $25 on the cattle. Mr. Vohs refused to pay him anything, and immediately wrote to all the owners of the brands, asking them to come to Bernalillo and inspect the cattle. In a day or two the several owners appeared in Bernalillo, and claimed their respective cattle, and drove them home. Practically all the cattle in the herd were shown by the evidence to have been ranging in the same vicinity in Socorro county, and, while there was no direct evidence of the fact, the circumstances tend to show that all the cattle were stolen at one time, and that the theft of the entire herd of 32 was but one transaction.

Appellant has assigned some 28 grounds of error. These assignments may be divided, for the purpose of discussion, into three groups. Assignments Nos. 1 to 6, inclusive, 17 to 24, inclusive, and 28 challenge the correctness of the rulings of the trial court in permitting certain evidence to be introduced by the state in its case in chief. No one of the questions attempted to be raised by any of these assignments is set out in the motion for a new trial. Hence under a well–established rule of this court these questions cannot be considered here. In the case of United States v. Cook, 15 N. M. 124, 103 Pac. 305, Mr. Chief Justice Mills, of the Territorial Supreme Court, stated the rule in this regard as follows:

“The court has often held that no alleged errors, unless they are jurisdictional, will be considered, except those which are set out in the motion for a new trial.”

This was but a restatement of the rule laid down in former decisions of the territorial Supreme Court, and has been uniformly adhered to both by the territorial and state Supreme Court. See Bank of Commerce v. Western Union Telegraph Co., 19 N. M. 211, 142 Pac. 156, L. R. A. 1915A, 120; James v. Hood, 19 N. M. 234, 142 Pac. 162; State v. Ellison, 19 N. M. 428, 144 Pac. 10; State v. Holloway, 19 N. M. 528, 146 Pac. 1066, L. R. A. 1915F, 922.

It is contended by appellant that these alleged errors were saved to him by reason of a specification contained in his motion for a new trial as follows:

“The court erred in admitting incompetent...