Territory of New Mexico v. Gonzales

Citations

• 14 N.M. 31

Syllabus

<p>SYLLABUS.</p> <p>1. Under Comp. Law 1897, Sec. Í383, declaring a gun a deadly weapon, on a prosecution for an assault with a deadly weapon, the weapon consisting of a gun, it is not necessary that the indictment allege that the gun was loaded.</p> <p>2. An indictment charging that defendant, at a certain time and place, with a deadly weapon, to-wit, a gun, in and upon one V. then and there unlawfully and feloniously did make an assault, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory, .was not defective, on the ground that the elements of the offense were not sufficiently set out, or on the ground that it only charged a simple assault.</p> <p>3. Comp. ¡Laws 1897, Sec. 3145, providing that exceptions to the decision of the court upon any matter of law arising during the trial of the cause, or to the giving or refusing of instructions, must be taken at the time of such decision, is applicable -to criminal cases.</p> <p>4. A “felony” is defined by statute to be a public offense punishable w’ith death, or which is, or, in the discretion of the court, may be, punishable by imprisonment in the penitentiary or territorial prison,' or any other public offense which .is or may be expressly declared ny law to be a felony. Comp. Laws 1897, Sec. 1379, in relation to an assault with a deadly weapon, does not declare the crime to be a felony, although it may become one by reason of the penalty imposed. Held, that though, on prosecution under section 1379, the indictment used the word “feloniously,” there was no error in omitting it from the instruction as to the circumstances under which defendant should he convicted, as its use in the indictment was not necessary, and the jury were not required to fix the penalty.</p> <p>5. A “felony” is defined by statute to he a public offense punishable with death, or which is. or, m the discretion of the court, may be, punishable by imprisonment in the penitentiary or