State v. Riddle.

• Decision Date: 14 January 1918
• Docket Number: No. 2039.,2039.
• Citation: 23 N.M. 600,170 P. 62
• Parties: STATEv.RIDDLE.
• Court: New Mexico Supreme Court

23 N.M. 600

170 P. 62

STATE

v.RIDDLE.

No. 2039.

Supreme Court of New Mexico.

Jan. 14, 1918.

Syllabus by the Court.

Where there is substantial evidence to support a verdict, the same will not be disturbed on appeal.

Where acts of accused, other than the one for which he is being tried, 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, although it proves or tends to prove the commission of another crime.

The admission or exclusion of evidence not strictly in rebuttal is discretionary with the court, and will be reviewed only to determine whether the court abused its discretion.

Appeal from District Court, Guadalupe County; Leahy, Judge.

Thomas A. Riddle was convicted of the larceny of neat cattle, and he appeals. Affirmed.

Conviction supported by substantial evidence, will not be disturbed on appeal.

K. W. Edwards, of Ft. Sumner, and E. R. Wright and J. J. Kenney, both of Santa Fé, for appellant.

George C. Taylor, Asst. Atty. Gen., for the State.

PARKER, J.

The appellant, Thomas A. Riddle, was convicted of larceny of neat cattle in the district court for Guadalupe county. From the sentence imposed upon him he has perfected this appeal.

[1] 1. The appellant first contends that the verdict is not supported by substantial evidence. He argues that there is no proof of a felonious taking, and that the state made but a prima facie case, which was completely explained by the appellant. We do not intend to set forth the evidence of the state, nor of the appellant, in this opinion. It is sufficient to say that the state proved facts sufficient to support the verdict, and, as the jury have found appellant guilty as charged in the indictment we shall not disturb that verdict. It is true, as appellant contends, that we reversed the case of State v. Griggs, 20 N. M. 466, 150 Pac. 921, on account of the insufficiency of the evidence to support the verdict, but that is not a precedent in this case, because the facts are dissimilar. The appellant here was charged with taking, stealing, and knowingly driving away and selling two heifers of the property of Louis Haight. The heifers were inclosed in a fenced pasture, and subsequently found in the possession of one who purchased them from the appellant, after the appellant was apprised of the fact that Haight claimed the property as his own. Appellant's defense was that the heifers were part of a herd purchased by him from the First National Bank of Santa Rosa. The proof on this score was conflicting. The jury were the judges of these facts, and, having resolved them against the appellant and there being ample evidence upon which the verdict may be sustained, it will not be disturbed on appeal, a doctrine too often announced by us to require citation of authority.

[2] 2. Over the objection of the appellant the state was permitted to introduce proof tending to show that the heifer which had been stolen from H. B. Dobbins was found on the Durfee ranch with other cattle which had been sold to John L. Sturr by the appellant at the same time he had sold the two heifers in question to Sturr. The state contended at the trial that this evidence was admissible because the sale to Sturr of the Dobbins heifer was a part of the transaction of the sale of the heifers in question. It was admitted on the theory that both facts constituted but one transaction. Subsequently the testimony developed that the Dobbins heifer was not “missed” until about the time the Haight heifers were discovered in the possession of Sturr, and the court thereupon sustained the motion of appellant to strike out all testimony concerning the Dobbins heifer. Appellant argues that ordinarily the error in admitting evidence is cured by its subsequent withdrawal from the jury, but that an exception to the rule is made by some courts where the evidence erroneously admitted in the first instance is of such a character that its subsequent withdrawal still leaves its impression on the minds of the jury. He then argues that the prejudicial impression gained by the jury from the erroneous admission of this evidence was not erased from the minds of the jury by its subsequent withdrawal.

The foundation of appellant's argument is that the evidence was erroneously admitted in the first instance. We are satisfied that it was not. The error was in striking it out and withdrawing it from the jury's consideration. Appellant was charged, not only with having taken and stolen the property, but having also knowingly sold the heifers. Proof of the fact that the appellant sold a heifer to John L. Sturr of the property of Dobbins, at the...