State v. Klasner

Citations

• 19 N.M. 479

Syllabus

<p>SYLLABUS BY THE COURT ON REHEARING.</p> <p>1. On rehearing, it having been called to the attention of the court, that no motion was made for an instructed verdict on the ground of a variance between the indictment and proof, or such variance in any manner called to the attention of the trial court, the judgment of reversal is set aside, as, it is a well established rule of this court that the question of variance, between the allegations in the indictment and the proof, unless raised in the court below, cannot be reviewed here.</p> <p>P. 482</p> <p>2. Where the name of the owner of an alleged stolen animal is alleged in the indictment to be unknown, it is not incumbent upon the state to prove, in the first instance, affirmatively, that such fact was unknown to the grand jury; but it must show that such name is unknown, or prove such a state of facts or circumstances as render the alleged unknown fact uncertain, in which event such fact is presumed to have been unknown to the grand jury, but if there is evidence tending to show that the grand jury did know, or could, by the exercise of reasonable diligence have, known, or ascertained the name of the true owner or that it was negligent or perverse in not alleging what was at its command to know, then the burden is upon the state to show that the grand jury did not know such alleged unknown name.</p> <p>P. 483-</p> <p>3.Failure to formally arraign a defendant is not a fatal, objection, where such defendant was present in court and testified as a witness upon his trial, in his own behalf, and. was represented by counsel, and no objection is interposed to proceeding with the trial without such arraignment.</p> <p>P. 484-</p> <p>4. Where no exceptions are taken to instructions given by the court of its own motion, error cannot be assigned upon such instructions.</p> <p>P. 486-</p> <p>5. Declarations made by a defendant in his own favor, unless a part of the res gestae, or of a confession offered by the prosecution, are