State v. Ulibarri.
| Decision Date | 11 April 1922 |
| Docket Number | No. 2629.,2629. |
| Parties | STATEv.ULIBARRI. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
The court should not direct a verdict of acquittal where there is any substantial evidence to support, or tending to support, the charge.
A judgment of the trial judge in the exercise of his discretion, determining whether or not a witness is sufficiently qualified as to intelligence to testify, will not be reviewed by this court, except where such discretion is abused.
The court is not bound to give instructions, which, even if correct, are merely cumulative, and state in another form a proposition of law already given to the jury.
The length of time that must elapse after the larceny of goods before their possession should cease to be considered as tending with other facts to show guilt is, as a rule, purely a question of fact for the jury.
Appeal from District Court, San Miguel County; Leahy, Judge.
Mariano Ulibarri was indicted and convicted of the larceny of cattle, and from the conviction and sentence he appeals. Affirmed.
The court is not bound to give instructions, which even if correct, are merely cumulative and state in another form a proposition of law already given.
H. E. Blattman and C. G. Hedgcock, both of East Las Vegas, for appellant.
H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.
Appellant was indicted and convicted of the larceny of three cattle. From said conviction and sentence thereon he appeals to this court.
[1] Appellant assigns as error the action of the trial court in denying his motion for an instructed verdict of acquittal at the close of the state's case. We think this assignment is without merit. The record discloses that there was substantial evidence, at the time the motion for a directed verdict was made, to support the verdict.
State v. Wilson, 25 N. M. 439, at 442, 184 Pac. 531.
[2] It is urged for ground of reversal that the testimony of one Willie Aredendo was unworthy of belief, and that he lacked the mental qualifications which would enable him to testify intelligently as to the facts concerning the larceny. The witness was examined as to his mental fitness, and the trial court admitted his testimony. In such cases the trial court has discretion as to whether or not the witness possesses sufficient mentality, and a judgment of the trial court will not be disturbed on appeal, unless the discretion allowed him in these matters is abused. As is said in State v. Armijo, 18 N. M. 262, at 270, 135 Pac. 555, 557:
“The trial court had an opportunity to examine this witness and observe his demeanor, and could judge his mental capacity from his manner of testifying. This court could not intelligently review the discretion of the trial judge * * * as to whether a child of tender years possesses sufficient mental capacity to understand the nature and obligation of an oath.
The Legislature, in its wisdom, has vested the trial court with discretion in such matters, which will not be reviewed, by this court, except for a gross abuse of such discretion.”
See, also, State v. Ybarra, 24 N. M. 413, at 420, 174 Pac. 212.
In this case no abuse of discretion is shown.
[3] Appellant next urges that the court should have given the following instruction:
“The jury are instructed that the possession of stolen property must be recent in order to afford any inference of guilt, and that if the possession is remote in time the defendant is not bound to offer any evidence to the jury to explain that possession; hence, if the jury believe from the evidence that there was found in the possession of the defendant three calves marked with his brand, on the 26th day of November, 1920, the defendant would be under no obligation or duty to...
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