Territory v. Sais
| Decision Date | 28 August 1909 |
| Citation | 103 P. 980,15 N.M. 171,1909 -NMSC- 021 |
| Parties | TERRITORY v. SAIS. |
| Court | New Mexico Supreme Court |
Appeal from District Court, Socorro County; before Justice Edward A Mann.
Jose Aban Sais was convicted of unlawfully killing a calf, and appeals. Affirmed.
Baca & Laughry, for appellant.
J. M Hervey, Atty. Gen., for the Territory.
The appellant, Jose Aban Sais, was convicted in the district court of Socorro county of kiling a calf, and was sentenced to serve a term of one year in the New Mexico penitentiary and to pay a fine of $500. Appeal was prayed and granted, as was also supersedeas.
The indictment in its charging clause is, in substance, as follows: "That Jose Aban Sais, on the 7th day of April 1907, at the county of Socorro, in the territory of New Mexico, did, then and there unlawfully, feloniously willfully, maliciously and knowingly kill one head of neat cattle, of the goods, chattels, and property of Eugene Guy Hills and Max Montoya, copartners doing business under the firm name and style of Montoya & Hills." The law of this case is perfectly clear, and is substantially as contended for in the brief of the appellant's counsel. The sole question to be examined here is one of fact, and as to that question the appellant's counsel contend that the evidence is insufficent to support the verdict of the jury as to the ownership and guilty knowledge alleged in the indictment.
The indictment, as we have seen, alleged that the animal killed was the property of Montoya and Hills as copartners, and it became necessary to prove the ownership as laid in the indictment beyond a reasonable doubt. The jury found the defendant guilty as charged in the indictment, and that verdict necessarily means that the jury were satisfied beyond a reasonable doubt that the animal killed was the property of Montoya & Hills.
The defendant's counsel insist that the proof was to the effect that the animal killed belonged to Eugene Guy Hills alone, and was not the property of Montoya & Hills. We have examined the evidence of all the witnesses who testified, and find that it is true that Eugene Guy Hills, who testified as the prosecuting witness, spoke of the animal as his property; his testimony being substantially as follows: "Well, while I was in there, I looked over into another side into a calf pen, and there I seen an animal covered with an old coat, and I walked over there to see what it was, and by this time why Jose was in this corral, was in the corral where the cattle was, and I walked over to the corral where this calf was down, and I looked over at it and saw that it was one of mine, and then I told Jose that 'you have killed one of my calves,' and he says, 'Yes."' The witness further says, in referring to the calf killed: "I knew it was mine by the color and brand." Another witness who was with Mr. Hills when they went to the corral, referring to the cattle in the corral, answered that: "Most of it [meaning the cattle] belonged to Mr. Hills, but there was some of his there also, and there were some belonging to Victor Sais." The witness, further referring to this transaction, testified that Mr. Hills said to the appellant, upon the discovery that this calf had been killed: "You have killed a calf of mine." This substantially covers the evidence in the case which the defendant contends shows that the animal killed was the property of Hills alone, and not the property of Montoya & Hills as alleged in the indictment, and upon this basis urges that there was a failure of proof to show the ownership as alleged in the indictment. But an examination of the testimony shows that there was other evidence in the case to which reference will now be made.
Montoya did not testify, but Mr. Hills, his partner, did testify. At the beginning of his testimony he states that he was engaged in stock raising. Then the following questions were propounded to him and answered on page 39 of the record: On page 44 of the record Mr. Hills testified to having loaned a cow to the defendant some time previous to the killing of this calf, and Mr. Hills was asked the following question:
In the testimony of Mr. Vallejos, another witness who was present at the corral when the discovery of the killing of this calf was made, and on page 49 of the record, appears the following questions and his answers thereto: This witness further on testified as follows: "The calf had been skinned on the side where I was, so I did not see the color of the hide, but I noticed part of the head that was to the side where I was where the mark of the company was noticed on the face of the calf."
Upon this testimony counsel for the territory insists that it was sufficient to warrant the jury in returning a verdict of guilty as charged in the indictment in this case. It seems that the contention of the Attorney General is warranted by this evidence. There is no evidence in the...
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