Territory of New Mexico v. Lobato

Citations

• 17 N.M. 666

Syllabus

<p>SYLLABUS (BY THE COURT).</p> <p>1. An indictment for murder in the first degree, in other respects sufficient, which concludes in the following language, “did strike and beat the said Juan Trujillo, giving to him, the said Juan Trujillo, in and upon the top of the head of him the said Juan Trujillo, one mortal contusion bruise, fracture and wound, of which said mortal wound, the said Juan Trujillo thence continually languished until, on the 30th day of December, A. D. 1909, between the hours of two and three o’clock in the morning of said day, he there died,’’ charges that the deceased died of the mortal wound alleged to have been inflicted by the defendant.</p> <p>2. The common law, adopted by statute in this state as the rule of practice and decision, in criminal cases, requires the defense of former jeopardy to be specially pleaded, and such defense is not admissible under the general issue. Held, where such defense is not so pladed, it can not be raised by motion upon the conclusion of the state’s case, for an instructed verdict.</p> <p>3. The record in this case shows that a valid jury was ■empaneled to try defendant.</p> <p>4. The granting or denying of a motion for continuance is within the discretion of the trial court, and unless such' ■discretion has been abused, to the injury of the defendant, the denial of such motion will not constitute error.</p> <p>5. It is not an abuse of discretion by the trial court, to refuse to grant a continuance, where the only ground stated in the application is the absence of counsel for defendant in an adjoining county, attending court.</p> <p>6. Where instructions given by the court, in a criminal case, are objectionable to the defendant, he must call the court’s attention to the claimed error in such instructions, prior to, or at the time they are given, so that the court may have an opportunity to correct the alleged error: and objections filed in the clerk’s office to instructions two days after the trial and verdict