State v. Rucker

Citations

• 22 N.M. 275
• 161 P. 337

Syllabus

<p>SYLLABUS BY-THE COURT.</p> <p>1. Section 31, Code 1915, makes it the duty of a drover, when the stock of any resident shall intermix with any drove of animals, to immediately cut out and separate such stock from such drove. p. 277</p> <p>2. The credibility of witnesses is, in all cases, a question for the jury, and the rule applies, although the testimony of the party or of interested witnesses or of other witnesses is uncontradicted. P. 278</p> <p>3. The question of variance between the brand alleged in the indictment to have been upon the alleged stolen animal and the certificate of brand, introduced in evidence upon the trial,, will not be considered in the appellate court, where such question was not raised in the trial court. State v. Klasner, 19 N. M. 474, 145 Pac. 679, followed. P. 279</p> <p>4. No alleged errors, unless they are jurisdictional, will be considered, except those set out in the motion for a new trial. P. 280</p> <p>5. Section 3142, Code 1915, which, provides: “When an indictment is found, the names of the witnesses examined before the grand jury, must in all cases be inserted at the foot of the indictment or indorsed thereon before it is presented to the court” — • is directory, and it' is not error for the trial court to permit a witness, who testified before the grand jury and whose name was not properly indorsed upon the indictment, to testify, where defendant did not claim or attempt to show surprise or prejudice by reason of the omission of the name of such witness from the indictment.</p> <p>P. 281</p> <p>6. Where the jury has an equal opportunity of determining whether a character appearing upon a certificate of brand corresponds with a similar character shown in the indictment, as has a tendered witness, there is no error upon the part of the court in refusing to permit such witness to testify as to whether such characters are the same or dissimilar.</p> <p>P. 281</p>