Territory v. Leslie
| Decision Date | 06 January 1910 |
| Citation | 106 P. 378,15 N.M. 240 |
| Parties | TERRITORYv.LESLIE et al. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Otero County; before Justice Edward A. Mann.
Robert Leslie, Sr., and Robert Leslie, Jr., were convicted of larceny, and they appeal. Affirmed.
Defendants had a slaughterhouse on their ranch, in which they slaughtered cattle and peddled the meat in surrounding towns and fed it to their hogs in nearby pens, and some of the cattle belonged to a ranch company, whose cattle defendants were charged with stealing; one of defendants holding the gate open while the cattle were driven in and shot by another of them, the others standing by and assisting. Held, that there was a conspiracy for an unlawful purpose so as to authorize an instruction on conspiracy in a prosecution for larceny of the cattle.
Gatewood & Grave, for appellants. Frank W. Cancy, Atty. Gen., for the Territory.
The defendants in this case, together with one Elisha Leslie, were jointly indicted in the district court of Lincoln county, charged with having committed the statutory crime of larceny of six head of cattle of the property of El Capitan Land & Cattle Company of New Mexico. The defendants took a change of venue to the county of Otero. The territory nolled the indictment as to Elisha Leslie, and on the second trial of the case the jury returned a verdict of guilty against the appellants herein, who, after a motion for a new trial had been overruled, were sentenced to serve a term of imprisonment in the territorial penitentiary at Santa Fé, and thereupon appealed to this court.
In their brief counsel for appellants argue eight alleged errors, which we will now consider.
We think there is ample evidence in the record before us to establish the fact that a crime had been committed. The indictment charges that the defendants “did take, lead, drive away, and kill” six head of neat cattle. The hides of these cattle were found on the Leslie ranch. The witness Oswald testifies to seeing them killed, and Robert Leslie, Sr., on page 181 of the transcript of record, admits that they killed certain cattle belonging to El Capitan Land & Cattle Company, claiming that they were authorized by the foreman of said company, one Pridemore, to kill certain cattle belonging to that company which were running wild in the mountains. Pridemore denied that he gave them any such permission, which was one of the facts to be decided by the jury in arriving at their verdict. Further comment on this point seems to us to be unnecessary.
Appellants claim that the court committed error in submitting to the jury instruction No. 3 as to the law of conspiracy. It has been decided by this court in the case of Territory v. Claypool et al., 11 N. M. 568, 71 Pac. 463, that it is reversible error for a trial court to give an instruction as to conspiracy, unless there is evidence before the jury to warrant such instruction, and in the same case, basing our opinion on Bishop's New Criminal Law, we have defined conspiracy to be “a confederating of two or more persons to accomplish some unlawful purpose, or a lawful purpose by some unlawful means.” Bearing in mind the ruling of this court and the definition of conspiracy as above set out, we will proceed to examine the record to ascertain whether there is evidence which justified the court in giving this instruction.
The evidence discloses that the appellants, together with Elisha Leslie, had on their ranch a slaughterhouse, to which they drove cattle and slaughtered them, and that they peddled the meat of the animals so slaughtered in the towns and placitas which were within reasonable distance, and a portion of the meat they fed to the hogs, of which they had a considerable number, confined in pens near their slaughterhouse. The transcript of record discloses that the defendants drove cattle to the slaughterhouse, some of which it is clearly proved belonged to El Capitan Land & Cattle Company, Robert Leslie, Sr., holding open the gate to the corral while the cattle were driven in; that from the corral they were driven into the slaughterhouse, where they were killed by shooting by one of the Leslies, the others standing by and assisting. We are clearly of the opinion that this was “a confederation of two or more persons to accomplish some unlawful purpose,” for the killing of cattle which did not belong to them, under section 79, Comp. Laws 1897, is in this territory a felony, and, being a felony as both of the appellants took part in it and assisted in gathering and driving the cattle up to and into the slaughterhouse, and then killing them, we think that the instruction complained of was very properly given. It does not take direct evidence to prove a conspiracy, but the same may be proved by circumstantial evidence and by facts and circumstances in evidence. “Circumstantial evidence is competent to prove conspiracy from the very nature of the case and the rule which admits this class of evidence applies equally in civil and criminal cases.” 8 Cyc. 677.
Another alleged error relied upon by the appellants is that the court committed error in admitting the certificate of brand introduced by the territory, in that the same showed a variance between the name set out in the indictment as the owner of the cattle, to wit, El Capitan Land & Cattle Company of New Mexico, while the certificate of brand introduced in evidence was that of El Capitan Land & Cattle Company of Richardson, county of Lincoln, territory of New Mexico. It is true that there is a discrepancy in the name of the company set up in the indictment as being the owner of the cattle and that mentioned in the certificate of brand, in that the certificate has in it the words. “Of Richardson, county of Lincoln, and Territory,” which words are not in the indictment. There is no evidence before the court of there being any other corporation in New Mexico named El Capitan Land & Cattle Company than the one which owned the cattle involved in this case. It seems to us that in any event the words in the certificate which are not in the indictment are unnecessary and are surplusage, setting out as they obviously do the place of business of the company which claims the cattle branded in the Block brand. In the case at bar it is not pretended that the cattle alleged to have been unlawfully killed were not the...
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...to accomplish the illegal act.” State v. Deaton, 74 N.M. 87, 89–90, 390 P.2d 966, 967–68 (1964); see also Territory v. Leslie, 15 N.M. 240, 245, 106 P. 378, 379 (1910). In fact, the crime of conspiracy is rarely proven by direct evidence. Deaton, 74 N.M. at 90, 390 P.2d at 968 (“[A]greement......
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