Territory of New Mexico v. Neatherlin

OPINION OF THE COURT. ABBOTT, J. — The essential facts are stated in the opinion. The defendant was found guilty by a jury, in December, 1904, in the district court for Boosevelt county, oil 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 twenty dollars 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. 1 2 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 His contention is that section 1117, of the Compiled Laws of 1897, is repealed as to the penalty provided for by Section 1187, and that, as by the latter section the penalty is made to depend on the value of the property involved, its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 offence which the evidence in this case tends most strongly to establish. Fayette Beard, a cattle inspector, at Boswell, 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 Boswell; 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. 3 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.) Yol. 1, Sec. 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 or more clauses, less than all of the statute, and still it embraces the complete proportions of the forbidden wrong.” There can be no doubt that there was evidence sufficient to sustain a verdict of guilty, if the charge had been that of concealing stolen property, knowing it to have been stolen, alone, and, on the authority cited, the addition of other things forbidden by the statute, did not put the Territory to the proof of them. It may, therefore, well be considered that no allegation, proof or finding of value was necessary, but even if the contrary be assumed, the value of the horses in question is alleged in the indictment to have been twenty dollars each, and the jury found the defendant guilty “as charged.” Such a verdict is generally, although not universally, held to be a sufficient finding of value. Bishop’s New Crim. Proc. Yol. 2, See. 764. There was to support the verdict the testimony of the witness West, that he agreed to pay “fifteen dollars around,” for the lot of horses, including those in question. He had seen the horses, and (he evidence indicated, although it does not expressly show that he was prepared to accept them as horses of the kind he had contracted for. There was considerable evidence bearing on the value of horses in this lot, as compared with that of horses in another lot described by the witnesses, and on the size and qualities of the two horses named, in the indictment, as favorably distinguishing them from the other horses in the lot for which fifteen dollars around was to be paid. Gatling v. Newell, 9 Ind. 572; Faust v. Hosford, 119 Iowa, 98-104; Harrison et al., v. Glover et al., 72 N. Y. 451; Saddler v. State, 20 Texas Appeals, 195; Commonwealth v. McKenney, 9 Gray (Mass.) 114. There was substantial evidence to support the verdict, and this court will not therefore disturb it. Torlina v. Trorlicht, 5 N. M., 148, and eases cited- Candelaria v. Miera, decided at the present term of this court. The third, fourth and sixth assignments of error relate to evidence admitted and instructions given, which left the jury at liberty to find that a criminal conspiracy existed between the defendant and others in relation to the subject matter of the indictment. 4 It is claimed, first, that unless the conspiracy is charged in the indictment, evidence of the acts and declarations of co-conspirators is inadmissible against a defendant. The weight of authority is to the effect that when a sufficient foundation is laid bv the evidence to establish the existence of a conspiracy, the acts and declarations of co-conspirators in pursuance of the common purpose, are admissible, whether conspiracy is directly charged or not. Wigmore on Evidence, Sections 1079, 1797, Cyc. of Law and Proc. Yol. 16, p. 1025 and cases cited. In the case at bar, there was abundant evidence that the defendant was engaged with others in the common enterprise of collecting from ranges about eighty miles away and taking to Roswell, for sale to the witness West, a lot of horses, and that they, in fact got together and put first in one and then in another pasture three or four miles from Roswell, forty-seven horses, to be delivered to West. The jury must have found that some at least, of those horses were stolen, and that the defendant and presumably his associates, knew it, even if they were .not themselves guilty of the larceny. The question whether a conspiracy had been established was left to the jury under proper instructions by the court, and they were told, that unless they found from the evidence that there was such a conspiracy, between the defendant and others, they should disregard the evidence to which these assignments of error relate. It is urged in behalf of the appellant, that even if such evidence was admissible, no acts or declarations of a time subsequent to the completion of that for which the alleged conspiracy existed, which, it is assumed, was the larceny of the horses, were competent evidence. That is, doubtless, the law of the matter; but the object of the conspiracy was not accomplished with the larceny of the horses, nor, indeed, was it ever fully, or in the feature most essential to the alleged conspiracy, carried out; since they did not succeed in delivering the horsese and getting the money for them. The receiving and concealing, with which the defendant was charged, continued up to the time when the horses were taken from the possession of himself and his associates by the owner or the officers of the law. 5 Another error claimed is that the district attorney in his argument to the jury was permitted to discuss the possibility of a pardon for the defendant, in case of his conviction. It appears that the attorney for the defendant sought to persuade the jury to acquit his client, by assuring them that if he should be convicted, his testimony could not be used to convict the witness, West, who was under indictment in connection with the same matter. To that the district attorney replied that his testimony could be secured, if desired, through a pardon, and that the jury and himself could unite in obtaining one. Neither suggestion was a proper one for the consideration of the jury, although reference to the well known fact that there existed the power to pardon is not uncommon in trials, and it is difficult to perceive how the mention of anything so commonly known could bo prejudicial; especially as part of what was said by the prosecuting attorney, on the subject, to which the defendant’s attorneys especially objected, at the time, was withdrawn by the court from consideration by the jury. Judgment affirmed. William J. Mills, O. J., John É. McFie, A. J., Frank W. Parker, A. J., Edward A. Mann, A. J.. concur. Pope, A. J., having heard the case below did not participate in this decision.