Territory v. Claypool

• Decision Date: 14 January 1903
• Citation: 71 P. 463,11 N.M. 568
• Parties: TERRITORYv.CLAYPOOL et al.
• Court: New Mexico Supreme Court

11 N.M. 568

71 P. 463

TERRITORY

v.CLAYPOOL et al.

Supreme Court of the Territory of New Mexico.

Jan. 14, 1903.

Syllabus by the court.

1. When the caption to an indictment reads: “Territory of New Mexico, County of Socorro. In the District Court, at the April Term, A. D. 1900,”-such indictment will not be quashed on the ground that it does not describe the court where it was found, or state the place where the court was sitting when the indictment was returned.

2. An indictment, under our laws, for purchasing stolen live stock, need not state from whom said live stock was purchased. It is sufficient if it states that they were bought from a person or persons not having the lawful right to sell and dispose of the same.

3. A bill of sale for live stock claimed to have been sold and purchased should be received in evidence, even if it is not properly witnessed and acknowledged as required by law.

4. It is proper for the trial court to sustain objections to questions which only call for the expression of an opinion by a witness who is not testifying as an expert.

5. It is error for the court to give an instruction as to conspiracy unless the evidence shows such conspiracy.

6. A trial court properly overrules a motion for a new trial on the ground of newly discovered evidence unless it fulfills the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be merely impeaching or contradicting the former evidence.

Appeal from district court, Socorro county; before Justice D. H. McMillan.

Levi Claypool and Esperidion Lueras were convicted of cattle theft, and appeal. Reversed.

The indictment contains two counts. The first count charges C. N. Wilkin, Levi Claypool, and Esperidion Lueras with stealing 225 head of sheep from Vidal Mora on the 11th day of February, 1899, and the second count charges the defendants with having bought these same sheep on the same day, knowing them to have been stolen. Defendant Wilkin was never arraigned or tried, not having been arrested. To the indictment the defendants Claypool and Lueras demurred, which demurrer was overruled, exceptions being saved. Plea of not guilty was entered, and the cause was tried at the May, 1901, term of the district court, and the jury returned a verdict against Lueras of guilty on the first count, and against Claypool of guilty on the second count. Motion for a new trial was made, containing 16 alleged grounds of error, which were overruled, exceptions being reserved. Motion in arrest of judgment was then filed, which was also overruled, and the defendants were sentenced to the penitentiary for the term of five years each, and to pay a fine of $100. Appeal was prayed and allowed, and the case was brought to this court for review.

The mere fact of the possession of the stolen goods is not sufficient proof that the party knowingly received or purchased the same, knowing them to have been stolen.

Fergusson & Gillett and H. M. Dougherty, for appellants.

Edward L. Bartlett, Sol. Gen., for the Territory.

MILLS, C. J. (after stating the facts).

On the motion for a new trial filed in this case, 16 alleged grounds of error are assigned, but on the hearing before us only 4 are insisted on, to wit: (1) The excluding by the court of a so-called bill of sale executed by the defendant Esperidion Lueras, and delivered to the defendant Levi Claypool, at the time the sheep were turned over to him; (2) the denial by the court of the right to cross-examine the witness Charles R. Huber as to an alleged confession or admission of the defendant Esperidion Lueras; (3) the giving by the court to the jury of instructions relating to conspiracy, when no conspiracy was shown by the evidence; and (4) on the ground of newly discovered evidence.

1. We will also consider the demurrer and the motion in arrest of judgment, as exceptions were saved to their overruling; but, as the grounds in both the demurrer and the motion in arrest of judgment are the same, we will consider them as one. Three grounds are set out in each. The first two are to the indictment as a whole, and the third is as to the second count. The grounds to the indictment as a whole are: (1) Because the said indictment does not describe the court wherein the same was found; and (2) because the said indictment does not state at what place the court was sitting when the indictment was found. The ground to the second count is: (1) Because the said second count of the indictment does not give the name of the person or persons from whom the defendants are charged with having unlawfully purchased the said property, or give any reasons for not alleging said names. That part of the indictment which it is necessary for us to consider in passing on the grounds of demurrer and in arrest of judgment to the indictment as a whole reads as follows: “Territory of New Mexico, County of Socorro-ss.: In the District Court, at the April term, A. D. 1900. The grand jurors of the territory of New Mexico, taken from the body of the good and lawful men of Socorro county, in the territory of New Mexico, duly selected, impaneled, sworn, and charged at the April term, A. D. 1900, to inquire into and due presentment make of all offenses against the laws of the territory of New Mexico, committed within said county of Socorro, upon their oaths do present.” There is nothing in the first two grounds, because the indictment, as just set out, does describe the court wherein it was found. It distinctly says, “In the District Court,” and it also describes the county where the court was sitting as “Socorro county.” We know of no law which requires the name of the town where the district court was held to be set out in the indictment. The formal part of this indictment, which is set out above, contains all of the averments which indictments usually contain in this territory, and in fact contains somewhat more than the printed forms employed in some of the judicial districts of this territory. The objection to the second count of the indictment presents a more serious question than that just disposed of. That part of the second count of the indictment which is pertinent charges that the defendants “did unlawfully, feloniously, and knowingly purchase 225 sheep, *** each of the value of three dollars, from a person or persons not having the lawful right to sell and dispose of the same, the said C. N. Wilkin, Levi Claypool, and Esperidion Lueras then and there well knowing said property to have been stolen at the time they so purchased the same, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of New Mexico.” The indictment under consideration is brought on section 79 of the Complied Laws of 1897, which relates to the stealing or purchasing of stolen cattle, horses, sheep, etc. The last part of this statute, which deals with the purchasing of stolen live stock, reads, “or any person who shall knowingly purchase from any one not having the lawful right to sell and dispose of the same, any neat cattle, horse, mule, sheep, swine, or ass, shall be deemed guilty of a felony,” etc. The learned solicitor general contends in his brief that this part of the law was passed to avoid the necessity of setting out and proving on the trial the true owner of the stolen live stock, and, while this point is not raised in either the demurrer or the motion in arrest of judgment, we do not think that this statute bears the construction which he seeks to place on it. Doubtless the rule which universally prevails, requiring that the name of the owner of the property be set out, if known, in indictments of this kind, arises from the fact that such indictment will inform the defendant of just what he stands charged, and will also enable him to plead former jeopardy, if such a plea is proper. As to whether or not the indictment should state from whom the stolen property was received, or that such name was unknown to the jurors, is a proposition upon which the authorities disagree. This question has never been decided in the courts of this territory, and is still an open one. Mr. Bishop says in his work on Criminal Procedure (volume 2, § 983): “Commonly, in England and in numbers of our states, the indictment does not aver from whom the stolen goods were received. Some of our American cases require it. This question belongs to a class upon which there may not unreasonably be differences of opinion, and perhaps it may properly be influenced by the terms of the statute.” A considerable number of cases are cited in favor of both propositions, but the weight of authority seems to be that the indictment need not set out from whom the stolen goods were received. Our statute (section 79, Comp. Laws 1897) does not make the receiving of stolen goods larceny. It makes it a felony. If the statute made it larceny, then it properly might be claimed that the indictment should contain the name of the party from whom the stolen property was received by the purchaser. A still more serious objection might have been raised to the second count of this indictment, but as it was not done, and as the attention of the court was not called to it, and as no ruling was made on it, we will not consider it. We can see no error in the court having overruled both the demurrer and the motion in arrest of judgment filed in this cause. We will next consider the errors alleged to have occurred on the trial, or at least such of them as are necessary to determine this case.

2. We will first consider the action of the court in excluding the so-called bill of sale when it was offered in evidence. The statutes of...