Territory v. Gonzales.

• Decision Date: 25 February 1907
• Citation: 14 N.M. 31,89 P. 250
• Parties: TERRITORYv.GONZALES.
• Court: New Mexico Supreme Court

14 N.M. 31

89 P. 250

TERRITORY

v.GONZALES.

Supreme Court of the Territory of New Mexico.

Feb. 25, 1907.

Appeal from District Court, Socorro County; before Justice Frank W. Parker.

Felix Gonzales was convicted of an assault with a deadly weapon, and he appeals. Affirmed.

The appellant, Felix Gonzales, was indicted for assault with intent to kill, and for assault with a deadly weapon, in two separate counts of the same indictment, upon one Samuel G. Vivian, was tried and convicted of assault with a deadly weapon under the second count of the indictment, and was sentenced to serve a term of three years in the territorial penitentiary. Motions for a new trial and in arrest of judgment were filed and overruled, and the defendant in the court below appealed from the judgment to this court.

Where, on a prosecution for an assault with a deadly weapon, defendant failed to request any instruction as to simple assault, and he was found guilty of an assault with a deadly weapon, he was not entitled to complain on appeal of the failure to charge on simple assault.

Dougherty & Griffith, for appellant.

W. C. Reid, Atty. Gen., for the Territory.

McFIE, J.

The appellant complains of the action of the court in overruling his motion in arrest of judgment. It is contended that the second count of the indictment fails to charge assault with a deadly weapon, the crime for which he was convicted, and therefore the court should have arrested the judgment. In the brief and oral argument of counsel for appellant, it is insisted that, if the second count alleges a crime, it is that of simple assault, and, further, that it pleads a legal conclusion only. It is claimed that the indictment is fatally defective in failing to allege that the gun was loaded. In the case of Territory v. Armijo, 7 N. M. 571, 37 Pac. 1117, this court said: “The offense as charged and the punishment as defined by our laws is a statutory crime, and it is necessary that the pleader in drawing indictments use the language of the statute applicable to the offense as defined by the statute.” This states the general rule as to indictments for statutory offenses, and a reference to the count objected to shows that it complies with this rule of law. In fact, it goes further than the statute, as it uses the word “feloniously,” which is not used in the statute. Under the laws of this territory, all guns are declared to be deadly weapons, and there is no requirement of statute, under the deadly weapon act, that the gun must be loaded. Section 1383, Comp. Laws 1897.

It is also objected that the second count “wholly failed to set out any facts and circumstances of the assault with a deadly weapon.” Counsel are in error as to this, as the indictment does set out quite sufficient to put the defendant upon notice of the charge brought against him, and that is all that is necessary. The second count, further stating the time and place, alleges that the defendant, naming him, “with a certain deadly weapon, to wit, a gun, in and upon one Samuel G. Vivian, then and there unlawfully and feloniously did make an assault, 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 elements of the offense seem to be sufficiently set out to apprise the defendant of the offense for which he was being tried, when it is understood that by statute all guns are declared to be deadly weapons. The minute details of the manner of the assault are matters of evidence, and not of pleading. The objection that this count only charges a simple assault is not well taken.

The second error assigned is the overruling of a motion for a new trial made in the court below, based upon the alleged failure of the court to give proper instructions, and the giving of improper instructions. Section 3145, Comp. Laws 1897, provides that: “Exceptions to the decision of the court upon any matter of law arising during the trial of the cause, or to giving or refusing instructions, must be taken at the time of such decision.” While this section is applicable, the record does not show that any exception was taken at the time to any of the instructions; the first objection being made in the motion for a new trial filed two days after the verdict was rendered. No advantage is sought to be taken of this in this court, and we will therefore consider the case upon its merits.

The only paragraph of the instruction of the court to which specific objection is made in the motion for a new trial is paragraph 13, which is as follows: “The defendant is charged in the second count of the indictment with an assault with a deadly weapon upon said Vivian. If you do not believe from the evidence, or if you entertain a reasonable doubt from the evidence as to whether the said defendant fired the shot at and towards the said Vivian with intent to murder the said Vivian, as heretofore explained to you, still, if you believe from the evidence beyond a reasonable doubt that at any time within three years next prior to the 7th day of December, 1904, in the county of Socorro, and territory of New Mexico, the defendant committed an assault upon the said Vivian with a loaded gun, and such assault was committed without excuse or justification, then you should find the defendant guilty as charged in the second count of the indictment.” The objection is that the words “feloniously and unlawfully” are omitted, and therefore the court did not instruct the jury upon all the law of the case. The word “unlawfully” is used in the statute, but the word “feloniously” is not, and, while the indictment in this case uses the word “feloniously” as well as “unlawfully,” very respectable authority holds it to be unnecessary to use “feloniously” in an indictment, much less is instructions, where the offense is purely statutory. At common law, it should be used in indictments for felonies, as has been repeatedly held. In 22 Cyc. p. 331, it is said that: “In some states it is now held that, the term ‘felony’ having lost its ancient English signification, and acquired the meaning of a crime punishable by death or...