Territory v. Neatherlin.
| Decision Date | 03 February 1931 |
| Citation | 85 P. 1044,13 N.M. 491 |
| Parties | TERRITORYv.NEATHERLIN. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A judgment based on a finding of fact by a jury will not ordinarily be reversed by this court on the ground that there was no evidence to support it, if there was any substantial evidence to sustain the finding.
A verdict of guilty “as charged” on an indictment for receiving and aiding in the concealment of stolen property, which contains an allegation of the value of the property, is a sufficient finding of value.
[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Receiving Stolen Goods, § 21.
An indictment which charges the commission of several things forbidden, in the alternative, through the use of the word “or,” by a statute, is established by proof of any one of them, although they are charged in a single count and the word “and” is used, instead of “or.”
[Ed. Note.-For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 534.]
Acts and declarations of one of several persons, in pursuance of a common design to commit a crime, are the act and declarations of all, and are admissible in evidence against the others engaged in the common enterprise, although conspiracy is not specifically charged, provided that its existence shall be established as a fact.
[Ed. Note.-For cases in point, see vol. 14, Cent. Dig. Criminal Law, §§ 989, 1012.]
A suggestion made to the jury by the prosecuting attorney in his argument, in reply to one similarly made by the attorney for the defendant, to the effect that, in case the defendant should be convicted, they could unite with him and secure a pardon for a certain purpose, was improper, and was on that ground withdrawn from the consideration of the jury by the court; but it was not, under those circumstances, so clearly harmful to the defendant as to warrant a reversal of judgment by this court.
[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 3127.]
Appeal from District Court, Roosevelt County; before Justice Pope.
Jake Neatherlin was convicted of larceny, and appeals. Affirmed.
A verdict of guilty “as charged” on an indictment for receiving, and aiding in the concealment of, stolen property, which contains an allegation of the value of the property, is a sufficient finding of value.
Freeman & Cameron and Louis O. Fullen, for appellant.
George W. Prichard, Atty. Gen., for the Territory.
The essential facts are stated in the opinion. The defendant was found guilty by a jury, in December, 1904, in the district court for Roosevelt county, on the second count of an indictment, charging that he “unlawfully, feloniously, and knowingly did buy, receive, and aid in the concealment of two horses, of the value of $20 each, of the goods and chattels and property of one Oscar Anderson, *** the said Jake Neatherlin then and there well knowing the same to have been stolen.” The first count of the indictment charged the defendant with the larceny of the same horses, and of that he was found not guilty.
The first error assigned by the appellant is that there is no evidence of the value of the property named in the indictment and therefore no legal finding of value. His contention is that section 1117 of the Compiled Laws of 1897, is repealed as to the penalty provided for by section 1187, and that, as by the latter section the penalty is made to depend on the value of the property involved, its value must be found by the jury from the evidence. Whether the latter section repeals any part of the former, need not now be determined, since the second count of the indictment charges at least one act, which is forbidden by section 1117, and is not referred to in section 1187; namely, that of aiding in the concealment of stolen money, goods, or property, knowing the same to have been stolen; and it is that offense which the evidence in this case tends most strongly to establish. Fayette Beard, a cattle inspector, at Roswell, testified that he saw the defendant, with others, in charge of the lot of horses, which included the two named in the indictment, in the vicinity of Roswell; that he knew the defendant and said to him, “Where are you coming from with your horses?” To which he replied, “From Arizona.” Such a statement, which was on all the evidence false, was unquestionably calculated to aid in the concealment of the horses, as well as to show the intention of the defendant, and, if believed by the jury, was sufficient to warrant a finding that he did aid in the concealment, which this, with other evidence, tended to prove.
The appellant claims, it is true, in his second assignment of error, that although section 1117 uses the word “or,” and so is in the alternative, as regards the buying, receiving, and concealing of stolen property, which it makes criminal, yet, as the indictment uses the word “and,” each of the three must be proved as an element of one crime. We do not so understand the law on that point. In Bishop's New Criminal Procedure (4th Ed.) vol. 1, § 436, the rule is thus stated: “Therefore the indictment on such a statute may allege in a single count as many of the forbidden things as the pleader chooses, employing the conjunction ‘and’ where the statute has ‘or,’ and it will be established by proof of any one of them.” “On the other hand,” says the learned author, in section 586, “the indictment may equally well charge what comes within a single one...
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