Territory of New Mexico v. Gallegos

Citations

• 17 N.M. 409

Syllabus

<p>SYLLABUS (BY THE COURT).</p> <p>1. Any violent opening of a door or window for the purpose of entering and molesting the persons in possession of the house or building is sufficient to complete the offense-made punishable by section 1161 R. S. 1897. — Held that an. opening of four inches was sufficient.</p> <p>2. Evidence of what was said and done by defendant a few hours before the attempted entrance, in the presence of prosecuting witness, was admissable, as tending to characterize the attempted entrance.</p> <p>3. There was no error in permitting a witness to describe-the condition of the door three or four days after the assault, where it had been shown by other evidence that the door was then in the same-condition that it was immediately after the assault upon it.</p> <p>4. The supreme court will not attempt to pass upon the-sufficiency of the evidence to sustain the verdict, where it appears that the transcript does not contain all the evidence.</p> <p>5. Defendants cannot complain of an erroneous instruction, which was favorable to them.</p> <p>6. In order to take advantage of surprise, the surprised party must ordinarily ask for the needful postponement or continuance, to procure the required evidence and have •been refused by the trial court.</p> <p>7. If counsel fail to ask for an instruction which they think should be given, and on refusal of the court to give it, do not except, they can not take advantage of it on appeal.</p>