Territory v. Harrington.

• Decision Date: 06 February 1912
• Citation: 17 N.M. 62,121 P. 613
• Parties: TERRITORYv.HARRINGTON.
• Court: New Mexico Supreme Court

17 N.M. 62

121 P. 613

TERRITORY

v.HARRINGTON.

Supreme Court of New Mexico.

Feb. 6, 1912.

Syllabus by the Court.

A count of an indictment is not double which charges several different acts set forth in a section of the statute, as constituting an offense, provided such acts are not repugnant.

The district court has jurisdiction in larceny cases, even though the original taking occurred within an Indian reservation, where the cattle were driven from the reservation into the jurisdiction of the district court, so long as the felonious intent continued.

The brand law does not require that ownership must be proven by the brand alone, but ownership may be proven by flesh marks or other proper evidence as if no brand law existed.

Statements made in the presence of a defendant of sufficient importance to call for affirmance or denial may be presumed to have been acquiesced in by him by virtue of his silence.

If counsel fail to ask for an instruction which they think should be given, the failure of the court to give such instruction cannot be taken advantage of on appeal.

(Additional Syllabus by Editorial Staff.)

Under Comp. Laws 1897, § 79, making it a felony for any person to steal, embezzle, kill, sell, or drive away, or in any manner deprive the owner of the immediate possession of any neat cattle, an indictment charging that the defendant did “steal, kill, sell, and drive away,” etc., was not duplicitous.

Appeal from District Court, McKinley County; Ira A. Abbott, Judge.

J. L. Harrington was convicted of crime, and appeals. Affirmed.

District court held to have jurisdiction in larceny cases, though original taking occurred within an Indian reservation, where cattle were driven into jurisdiction of the court while the felonious intent continued.

The defendant and appellant, J. L. Harrington, was indicted at the May, 1910, term of the district court for McKinley county. The indictment, omitting the formal part, is as follows: “That J. L. Harrington, late of the county of McKinley, territory of New Mexico, on the first day of March in the year of our Lord 1910, at the county of McKinley aforesaid, did four cows and one steer, of the value of one hundred dollars, of the property of Ky–Oto–Nee–To, a Navajo Indian, unlawfully, feloniously, and knowingly, steal, kill, sell, and drive away, contrary,” etc. The defendant was duly tried and found guilty, being sentenced to two years in the penitentiary and to pay a fine of $500. An appeal was taken to this court.

E. L. Medler and Felix H. Lester, for appellant. Frank W. Clancy, Atty. Gen., for the Territory.

HANNA, J. (after stating the facts as above).

[6] 1. It is assigned as error that the indictment is bad for duplicity. This indictment was drawn under section 79 of the Compiled Laws of 1897, which makes it a felony for any person to “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, horse, mule, sheep, goat, swine or ass.” We see no error in the manner in which this indictment charges the offense. Some single offenses are of a nature to be committed by many means in one or another of several varying or different ways, and in a case of this character we do not believe that a count is necessarily double which charges several of the different means in which such an offense can be committed, provided such means are not repugnant. 1 Bishop's New Crim. Pro. (4th Ed.) § 434. The territorial Supreme Court passed upon this question in the case of Territory v. Eaton, 13 N. M. 80, 79 Pac. 713, in which case the indictment was approved, the same being similar in form to the one here questioned, and both indictments were based upon the same statute.

[1] We are of the opinion that an indictment based upon a statute, making punishable the doing of one thing or another, may allege in a single count that the defendant did as many of the forbidden things as the pleader elects to specify, provided that the conjunction “and” is used where the statute has “or,” and such count will not be double and may be established at the trial by proof of any one of them. 1 Bishop's New Criminal Pro. § 436; Territory v. McGrath, 114 Pac. 364.

2. The second error assigned on behalf of appellant is that the court erred in failing to sustain defendant's motion to require the plaintiff to elect upon which crime in the indictment it would go to trial. In view of our holding that no duplicity exists, as contended in the first assignment of error, there is no merit in this assignment of error.

[2] 3. The third assignment of error contended for by appellant is that the district court had no jurisdiction to try this case because the cattle alleged to have been stolen and driven away were at the time of the alleged offense on the Navajo Indian reservation; that by reason of such fact this case should have been brought in the district court for the Second judicial district, sitting for the trial of causes and offenses arising under the laws of the United States. We are clearly of the opinion that the court below took the proper view of this matter in holding that while the defendant might have been prosecuted under the United States statutes, and in the court having jurisdiction of offenses against the United States, yet when the defendant continued his driving of the cattle in the county of McKinley, after leaving the Indian reservation, he committed a complete offense against the statute of New Mexico. We believe that no principle in the law of larceny is better established as general doctrine than that any physical removal of the thing alleged to be stolen to which thing the remover had not the right of possession is, where felonious intent exists, larceny.

We are clearly of the opinion that where the original taking...