Territory of New Mexico v. Ayer

Citations

• 15 N.M. 581

Syllabus

<p>SYLLABUS (BY THE COURT.)</p> <p>1. In laying a foundation for the introduction of the record of former testimony given hy a witness claimed to he absent from the Territory, declarations made by the witness as to his intention to leave the Territory permanently and the return of the sheriff of “not foúnd” endorsed on the ■subpoena issued for the witness, are each of them competent to prove that the witness was not available.</p> <p>2. The evidence in this, case considered and held not to tender a plea of self defense held that an instruction as to self defense, though erroneous, was an error of which the appellant could not complain.</p> <p>3. Where a trial court fails to instruct the jury as to all the essential ingredients of the crime charged', and the •defendant neither calls “the court’s attention to such omission nor takes exception thereto,” he cannot avail himself of such error on appeal. Territory v. Watson, 12 N. M. 419.</p> <p>4. An instruction defining a “reasonable doubt” to he “one for which a reason could be given, based on the evidence or want of it,” though erroneous, does not in this particular case constitute reversible error where the jury might well have found the defendant guilty solely on his own testimony.</p>