Territory v. Caldwell
| Decision Date | 02 September 1908 |
| Citation | 98 P. 167,14 N.M. 535,1908 -NMSC- 027 |
| Parties | TERRITORY v. CALDWELL et al. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
When a brand is recorded with the cattle sanitary board, all horses mules, asses, or neat cattle branded with that brand are prima facie the property of the person owning such recorded brand.
[Ed Note.-For other cases, see Animals Cent. Dig. §§ 8-12; Dec Dig. § 10. [*] ]
Where an indictment charges that the calf alleged to have been stolen was the property of Juan Casaus y Benavides, and the certificate of the cattle sanitary board was made out in that name, it is not a variance because the evidence shows that the complaining witness was sometimes called Juan Casaus.
[Ed Note.-For other cases, see Larceny, Cent. Dig. § 120; Dec. Dig. § 40. [*] ]
The instruction given by the court which reads: "The possession of recently stolen property, if unexplained, is a circumstance to be taken into consideration by the jury the same as any other fact or circumstance in the case, and given such weight as the jury may deem it entitled to; and, if in this case you believe from the evidence, beyond a reasonable doubt, that the defendants, or some of them, were in possession of the property stolen, if it was stolen, then you may take that fact or circumstance into consideration, and give it such weight as in your mind it is entitled to"-correctly states the law in regard to the possession of property soon after it has been stolen.
[Ed. Note.-For other cases, see Larceny, Cent. Dig. §§ 199-204; Dec. Dig. § 77. [*]]
If the usual general instruction regarding reasonable doubt is given, it need not be repeated in each instruction which relates to the elements of the crime or the facts in the case.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1991; Dec. Dig. § 822. [*]]
It is the duty of the presiding judge to instruct the jury fully as to the law in criminal cases; but, if he omits to instruct as to any of the elements of the crime, then it is the duty of the counsel for the defendant to ask for such instruction, and if the court refuses to give it, to except. If counsel fail to ask for an instruction which they think should be given, and, on the refusal of the court to give it, do not except, they cannot take advantage of it on appeal.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038. [*]]
Where two or more crimes are committed at or about the same time, the whole transaction may be proven, even though the tendency is to prove a crime other than the one charged, especially in cases of larceny, when other property stolen at or about the same time as that described in the indictment, is found in the possession of the accused, because it tends to show intent of the accused.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369. [*]]
All that the defendants can ask is that the instructions as a whole fairly and fully place the case before the jury.
[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1990-1995; Dec. Dig. § 822. [*]]
Appeal from District Court, Guadalupe County; before Justice Edward A. Mann.
Tom and Lee Caldwell were convicted of stealing one head of neat cattle in violation of Comp. Laws 1897, § 79, and they appeal. Affirmed.
The defendants are charged, under section 79, Comp. Laws 1897, with stealing one head of neat cattle, the property of one Juan Casaus y Benavides. The indictment alleges that the crime was committed on September 6, 1906. The defendants were duly tried, and the jury on April 4, 1907, returned a verdict of guilty with a recommendation to clemency. Motion for a new trial was filed, argued, and overruled, and the defendant Lee Caldwell was sentenced to the penitentiary for the term of two years, and the defendant Tom Caldwell for the term of three years. From these judgments defendants appeal.
R. D. Bowers, W. W. Gatewood, and M. C. de Baca, for appellants.
J. M. Hervey, Atty. Gen., for the Territory.
This is an appeal in a criminal case, where the defendants were charged with the larceny of one head of neat cattle, a calf, as shown by the evidence. An examination of the record discloses that the verdict of guilty returned by the jury was not secured for the lack of defense, for the defendants were represented by able lawyers, who used every means to clear them of the crime which it is alleged by the indictment they committed, and for which they were subsequently found guilty by the jury, and sentenced to the penitentiary by the court. On hearing before us some of the errors assigned were not argued, but we will consider them all, as counsel stated that none were waived.
1. The first alleged error is that there is no evidence in the case to support the verdict of the jury, in that the transcript shows that there was no evidence establishing the fact that there was ever any crime committed. Our laws provide for the branding of cattle by their owners, and set out that, when a brand is properly recorded, no one else shall record the same brand, but that such brand shall be the property of the person recording it; and, section 67, Comp. Laws 1897, provides that the proof of the brand by a certified copy of the registration thereof in the territorial brand book, under the seal of the cattle sanitary board, certified to by the secretary of said board, shall be sufficient to identify all horses, mules, asses, or neat cattle, and shall be prima facie proof that the person owning the recorded brand is the owner of the animal branded with such brand. The indictment in this case discloses that the calf alleged to have been stolen was the property of Juan Casaus y Benavides, and the evidence shows that a certificate of the record of the brand, signed by the secretary of the cattle sanitary board, was admitted in evidence, and that it shows that the brand of Juan Casaus y Benavides was T. C. Bar, and it therefore follows that all cattle branded with that brand were prima facie his cattle. It is testified to by one Manuel Aragon that on September 6, 1906, he saw two men driving a bunch of cattle, mostly calves, consisting of some 14 or 16 head near the head of the Encinosa, that his attention was first attracted to them by the bellowing of the calves, that he rode towards them, and that as he did so, one of the men turned, loaded his pistol, and held it in front of him, and asked him what he was doing there. After some conversation the man with the pistol said that they were throwing the calves down on the Yesso. This witness identified the man with whom he talked as the defendant Lee Caldwell. This witness also testified without objection that the reason the calves were bawling was because they had been separated from their mothers that day. The witness Collier testified that on October 3, 1906, he visited the Caldwell ranch, and found in that vicinity a number of freshly branded calves, without their mothers, which Lee Caldwell said belonged to him and his brother, and which were branded in their brand. Afterwards the mother of the calf in question was found, and it was the cow of Juan Casaus y Benavides. A considerable amount of evidence was introduced on the trial, the defendants claiming that they did not know how the calves came to be branded with their brand, and thus prima facie their property, but there was ample evidence that a crime had been committed, and it was proper for the court to submit the case to the jury for their determination as to whether or not the defendants were the guilty parties. If the stealing of a calf by wrongfully branding it could only be proved by a confession, or by eyewitnesses to the illegal branding, then the running of herds on the open range in this territory would soon be a thing of the past, for as a rule persons do not illegally brand calves in the presence of witnesses any more than they commit crimes such as burglary or larceny in the presence of witnesses.
2. Appellants also claim that there was a material variance between the allegations of the indictment and proof as to the name of the owner of the calf alleged to have been stolen. We can see nothing which requires any lengthy discussion on this point. The indictment charges that the calf alleged to have been stolen was the property of Juan Casaus y Benavides, and the first questions asked the prosecuting witness are as follows: The certificate of the cattle sanitary board was also made out in the name of Juan Casaus y Benavides, and was admitted in evidence without objection. It is true that the complaining witness was sometimes called Juan Casaus, but his real name, as testified to by him, was as he was described in the indictment. We can see no variance between the allegation contained in the indictment as to the name of the prosecuting witness and the proofs adduced at the trial. A person might be ordinarily known as Tom Smith, but if in an indictment he was described as Thomas Smith, and testified that that was his name, although there was proof that he was ordinarily called Tom Smith, we do not think that it could be rightfully claimed that there was a variance between the indictment and the proofs.
3. Another alleged error is that the court erred in giving instruction No. 5 1/2, which reads as follows, to wit "The possession...
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