State v. Rucker.

• Decision Date: 18 July 1916
• Docket Number: No. 1875.,1875.
• Citation: 22 N.M. 275,161 P. 337
• Parties: STATEv.RUCKER.
• Court: New Mexico Supreme Court

22 N.M. 275

161 P. 337

STATE

v.RUCKER.

No. 1875.

Supreme Court of New Mexico.

July 18, 1916.Rehearing Denied Dec. 13, 1916.

Syllabus by the Court.

Section 31, Code 1915, makes it the duty of a drover, when the stock of any resident shall intermix with any drove of animals, to immediately cut out and separate such stock from such drove.

The credibility of witnesses is, in all cases, a question for the jury, and the rule applies, although the testimony of the party or of interested witnesses or of other witnesses is uncontradicted.

The question of variance between the brand alleged in the indictment to have been upon the alleged stolen animal and the certificate of brand, introduced in evidence upon the trial, will not be considered in the appellate court, where such question was not raised in the trial court. State v. Klasner, 19 N. M. 474, 145 Pac. 679, followed.

No alleged errors, unless they are jurisdictional, will be considered, except those set out in the motion for a new trial.

Section 3142, Code 1915, which provides: “When an indictment is found, the names of the witnesses examined before the grand jury, must in all cases be inserted at the foot of the indictment or indorsed thereon before it is presented to the court”--is directory, and it is not error for the trial court to permit a witness, who testified before the grand jury and whose name was not properly indorsed upon the indictment, to testify, where defendant did not claim or attempt to show surprise or prejudice by reason of the omission of the name of such witness from the indictment.

Where the jury has an equal opportunity of determining whether a character appearing upon a certificate of brand corresponds with a similar character shown in the indictment, as has a tendered witness, there is no error upon the part of the court in refusing to permit such witness to testify as to whether such characters are the same or dissimilar.

Appeal from District Court, Rio Arriba County; E. C. Abbott, Judge.

Sam Rucker was convicted of larceny of cattle, and he appeals. Affirmed.

Questions, not jurisdictional, nor presented to trial court in the motion for new trial, will not be considered on appeal.

J. H. Crist, of Santa Fé, for appellant.

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

ROBERTS, C. J.

Appellant was tried in the district court of Rio Arriba county, at the June, 1915, term of court, upon an indictment charging him with the larceny of one head of neat cattle, the property of Cipriano Peña. The indictment alleged that the cow in question was branded “C I P” on the left side. Appellant was found guilty by the jury, and sentenced by the court to serve a term in the state penitentiary and to pay a fine to the state. From this judgment he appeals.

The facts established by the state were: That on the 16th day of June, 1912, appellant was driving a bunch of cattle northward along the public highway at a place called Chupadero, in Rio Arriba county. Cipriano Peña lived near Chupadero, said place possibly being within the limits of his cattle range. Before he reached Chupadero a man employed by Mr. Peña, Fernando Torrez, accompanied by Leonardo Chavez, joined appellant a half mile or so south of Chupadero, and accompanied him to that place, where appellant stopped with the cattle. At that place he cooked and ate dinner, and while he was so engaged the two men named and Julio Gallegos rode through the herd looking for cattle belonging to Mr. Peña. They found a cow branded with his brand, and Gallegos asked appellant where he got the animal, to which appellant replied that he had purchased her from the Córdovas. Within a few days Peña searched diligently for his animal and failed to find her. Appellant denied this conversation; admitted that the three men visited his camp; denied that he had seen the cow described by them, and stated that at Chupadero, after he and his brother had eaten their dinner, together with two other men named Lee and Houghton, who had joined them while there, he proceeded to and did cut out all the stray cattle in the herd, numbering some eight or ten head. His brother and Lee and Houghton all testified to substantially the same facts, except the three last named stated that they saw the cow described by the state's witnesses, and that she was cut out at that place and started back with the other cattle eliminated from the herd. The cattle inspector who inspected the cattle before their delivery in Colorado testified that he found no cow branded “C I P,” or bearing any similar brand; that the only brands found upon the cattle were those disclosed by his inspection certificate, which was produced and offered in evidence.

The indictment was predicated upon that portion of section 1613, Code 1915, reading as follows:

“Any person who shall steal, embezzle or knowingly kill, sell, drive, lead, or ride away, or in any manner deprive the owner of the immediate possession of any neat cattle * * * shall be punished by imprisonment [etc.].”

[1] Section 31, Code 1915, makes it the duty of a drover, when the stock of any resident shall intermix with any drove of animals, to immediately cut out and separate such stock from said drove. This section was designed to protect the cattle raisers of the state from larceny of their cattle by people passing through the country with herds of cattle and permitting the cattle of others to become intermingled with those being so driven. In such case, without the above statute, it would be, in many instances, impossible to establish the guilty intent of the drover.

In this case appellant argues that the evidence is insufficient to sustain the verdict of the jury. But this cannot be true, if the evidence of the witnesses for the state is accepted as true, and that given by appellant's own witnesses be disbelieved. Accepting the state's evidence as true, we have the facts established: That appellant was driving a herd of cattle through the country. That Peña's animal was found in his herd, and had been driven in said herd for some distance. When confronted with the fact that he was driving away an animal that did not belong to him, he claimed that he had purchased the animal from one of the Córdovas. All this, if true, established all the elements essential to constitute an offense under section 1613, supra.

[2] Appellant argues, however, that the jury had no right to disbelieve the witnesses who testified in his behalf, to the effect that at Chupadero, immediately after the state's witnesses left, he cut out the “C I P” cow, and the evidence of the cattle inspector, to the effect that at the Colorado line appellant had no cow branded “C I P” in his herd. Appellant, however, in this contention disregards the well-established rule “that the credibility of witnesses is, in all cases, a question for the jury.” 38 Cyc. 1518. It would, if appellant's view were to prevail, be almost impossible in any case to secure a conviction, for the defendant in a criminal case could always testify to a state of facts which could not be contradicted by others. The rule applies, although the testimony of the party or of interested witnesses or of other witnesses is uncontradicted. 58 Cyc. 1518. Here the jury saw all the witnesses and observed their manner and demeanor while testifying, sensed the atmosphere of the trial, and it was within its province to believe or disbelieve the testimony of appellant and his witnesses. Certainly, even from the record, there were facts and circumstances appearing which might tend to cause a reasonable mind to entertain grave doubts as to whether the appellant and his witnesses were testifying to the truth. For example, the cattle inspector's certificate had been changed so as to show more cattle bearing a designated brand than had originally been made to appear. The cattle inspector testified that he made the change, but this labored attempt to explain away admissions theretofore made to the district attorney to the contrary evidently destroyed the value of his testimony with the jury. Likewise, the evidence of Lee and Houghton, who appeared upon the scene immediately after the state's witnesses left, was not very convincing. They were not able to state satisfactorily how they were able to arrive at Chupadero without having met the state's witnesses, or any other person. They attempted to explain the fact by saying they came by an “unused trail,” leaving the main road some two or three miles below Chupadero. The jury elected to disbelieve them, and under the facts and circumstances we cannot say that there was an arbitrary disregard of the evidence.

[3] Appellant's next contention is that there is a fatal variance between the allegation of brand in the indictment and the brand as proven on the trial by the certificate introduced in evidence. This question, however, was not raised in the trial court; hence cannot be considered here. State v. Klasner, 19 N. M. 479, 145 Pac. 679.

It is true appellant objected to the admission in evidence of the brand certificate, because it did not correspond with the allegation in the indictment; but he is not here complaining of the action of the court in permitting the brand certificate to go to the jury.

In preparing indictments it is unnecessary to describe the brand found upon alleged stolen animals, and by so doing the district attorneys may frequently be confronted with questions of variance.

[4] The defendant failed to request the court to charge that it was incumbent upon the state to prove that the brand upon the animal found in defendant's possession was the same brand as that described in...