State v. Curry

Citations

• 27 N.M. 205
• 199 P. 367

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Appellants were prosecuted for the unlawful purchase of four head of sheep from one not the owner of the sheep. The indictment charged the purchase to have been made on the 13th day of January-, 1920. The state put in evidence the fact that some time in December prior thereto one of the appellants had exacted one head of sheep from the party from whom the later purchase was made as damage for trespass; that such appellant stated at the time that he would not exact the sheep, but for the fact that the sheep belonged to Bond & Weist, the parties alleged in the indictment to be the owners. Appellants contend that by putting in evidence of the prior transaction there was an election by the state, and that transaction is the one upon which it should seek a conviction. This evidence was introduced for the purpose of proving knowledge on the part of appellant of lack of ownership of the sheep in the party from whom they later-purchased, and by so doing there was no election. P. 208</p> <p>2. Where evidence of ownership depends solely upon the brand upon an animal, ownership may be established only by the introduction of the record brand, or a certified copy of the same; but ownership of an animal may be established by flesh marks, or other proper evidence of ownership, as if no brand law existed. • P. 209</p> <p>3. It is within the discretion of the court as to whether or not it will exclude witnesses from the courtroom during the trial, and the court has the right to permit such witness or witnesses as it deems necessary to sit with either side during the trial for consultation and advice. P. 210</p> <p>4. It is the duty of the trial court to see that counsel and witnesses are required to sit at such distance from members of the jury that the jurors cannot overhear remarks between counsel or counsel and others; but where an appellant complains that counsel for the state was permitted to sit so near the jury that such remarks could be ov