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8. CRIMINAL LAW – REVIEW - INDICTMENT SUFFICIENCY-OBJECTIONS.

The sufficiency of an indictment will not be considered, where the objection was not raised by demurrer or by motions to quash or in arrest.

(Ed. Note.-For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2627.) 9. SAME-DENIAL OF NEW TRIAL-ASSIGNMENT OF ERROR.

The overruling of a motion for a new trial in a criminal case, not assigned as error appeal, is not before the court on appeal.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 15, Criminal Law, $ 2934.)

been overruled, judgment was rendered on the verdict, and the defendant was sentenced to pay to the territory a fine of $50 and costs, and to stand committed until fine and costs were paid. A motion in arrest of judgment was filed and overruled, and the defendant has brought the cause to this court by appeal.

Gatewood & Dunn, for appellant. W. C. Reid, Atty. Gen., for the Territory.

Appeal from District Court, Chavez Coun. ty; before Justice W. H. Pope.

Joshua P. Church was convicted of permitting a minor to gamble in his saloon, and he appeals. Affirmed.

On the 12th day of November, 1903, the defendant was indicted, and the body of the indictment is as follows: "That Joshua P. Church, late of the county of Chavez, in the territory of New Mexico, on the 25th day of October, in the year of our Lord one thousand nine hundred and three, at the county of Chavez, aforesaid, in said territory of New Mexico, being then and there proprietor, keeper and manager of a certain saloon there situate where intoxicating liquor is kept and offered for sale and where gambling is carried on and permitted, unlawfully and knowingly allow and permit one Guy C. Clements, a minor under the age of twenty-one years and a pupil of a school and educational institution, to wit, The New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to said saloon and engage in games and amusements thereon, contrary to the form of the statute in such case made and provided and against the peace and dignity of the territory of New Mexico.

The record in this case discloses very few facts, but those disclosed, together with the admission of the defendant, seem sufficient for a proper understanding and disposition of tbe case. The substance of the proof was that Guy C. Clements, Clarence Clements, Reid Curtis, and one McCracken were in the Oriental Saloon, at Roswell, some time during September, October, or November, 1903, and while there Guy C. Clements engaged in playing the roulette wheel, while the others watched the play; that Guy C. Clements and his brother Clarence were in that saloon more than once; that all of these boys were minors and students of the New Mexico Military Institute; that they were not molested or put out of the saloon at any time; that a man by the name of O'Conner was operating the roulette wheel in the saloon, and, so far as the testimony shows, the defendant was not in the saloon at the time these boys were there. The defendant, however, admits upon the record that he was the owner and manager of the Oriental Saloon in the fall of 1903. Upon a trial before a jury, the defendant was found guilty as cbarged in the indictment. Motion for a new trial having

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McFIE, J. (after stating the facts as above). The indictment is based upon the violation of section 3, c. 3, p. 19, Laws 1901, which is as follows: "Section 3. It shall be unlawful for the proprietor, keeper or manager of any saloon where intoxicating liquor is kept or offered for sale, or where gambling in any form is carried on or permitted, to permit any minor under the age of twenty-one years or any pupil in any school or educational institution, to loiter upon or frequent the premises belonging to such saloon, or to engage in games or amusements of any kind thereon." Section 7 of the same chapter is also pertinent, and provides that: “The word 'person' as used in this act, shall be deemed to mean firm or corporation, as well as natural person, and the person managing the business of such firm or corporation shall be liable to the penalties prescribed by this act. And the proprietor or owner of any of the establishments mentioned in this act shall be liable to the penalties prescribed by this act for any violation of its provisions within or at their establishments, whether committed by themselves or by persons in their employ."

Numerous assignments of error appear in the record; but, inasmuch as more than one of them raise the same question in a different form, it will not be necessary for us to consider each of them separately. The first assignment of error is that the court erred in overruling the defendant's motion in arrest of judgment. The indictment in this case omitted to insert the word "did" in the charging part before the words "unlawfully and knowingly allow and permit one Guy C. Clements, a minor and student of the New Mexico Military Institute, to be and loiter upon and frequent the premises belonging to such saloon, and to engage in games and amusements thereon," etc. No demurrer or motion to quash was filed attacking the sufficiency of the indictment; but, after trial and judgment, a motion in arrest of judg. ment was interposed, based upon this omis sion, as a fatal defect in the indictment. The court below overruled the motion, and. as counsel for the defendant contends, committed error in so doing. The omission of the word "did," in the cbarging part of an indictment for a felony, has been held fatal in the state of Texas, and in some other jurisdictions; but in misdemeanors, where a more liberal rule of pleading prevails, such an omission, appearing to be purely clerical. is not deemed fatal, and, if desirable for

completeness of statement, will be supplied that the court did not err in overruling the by intendment. In State v. Edwards, 19 Mo. motion in arrest of judgment. 675, the court said: “The omission in this In the second, third, fourth, and fifth asindictment consists of the neglect to insert signments, it is charged that the court comthe word 'did' before the words 'assault, beat mitted error in excluding testimony offered and maltreat one Stephen L. Page, in the in behalf of the defendant to the effect that peace then and there being and other the defendant had forbidden minors to loiter wrongs,' etc., so as to make the sentence in his saloon premises; that he had instructread thus: 'With force and violence, in a ed his employés not to allow minors to loiter turbulent and violent manner, "did" assault, about his saloon, and has so instructed beat and maltreat,' etc. We are inclined to O'Conner, who was in charge of the roulette think that this word ‘did' may, in this in- wheel at the time Guy C. Clements was in the dictment, be supplied by intendment.

saloon. The contention of the defendant is dictments for misdemeanors merely, such in- that his good faith evidenced by such instrutendment is often resorted to. The strict- tions to minors and employés constitutes a ness and rigor in construction of indictments good defense. The court below excluded this for felonies are not applied uniformly to in- testimony as immaterial, on the ground that dictments for mere misdemeanors. In the the same would not constitute a defense. case of State v. IIalder, 2 McCord (S. C.) 377, In Carroll v. State, 63 Md. 531, 3 Atl. 29, 13 Am. Dec. 738, the omission to insert the the court said: “The fact that he (saloonword 'did before the words 'feloniously ut- keeper) has given orders not to sell to minors ter and publish, dispose and pass' was held only shows a bona fide intent to obey the fatal, and the judgment was arrested. This law, which all the authorities say is imindictment was for a felony. In the case of material in determining guilt." In McCutthe State v. Whitney, 15 Vt. 298, which was cheon v. People, 69 Ill. 601, the court said: an indictment for a misdemeanor, selling liq- “Where, in the absence of a saloonkeeper, a uor by the small measure, without license, sale of liquor is made by his bartender, the the word 'did' was omitted, which should directions of the former not to sell to minors have been joined with the words 'sell and will not exempt him from liability for the dispose of. This omission was held not to sale." Iogler v. State, 47 Ark. 110, 14 S. be fatal on motion in arrest of judgment. W'. 473; Waller v. State, 38 Ark. 656; Loeb Bennet, J., in delivering the opinion of the v. Georgia, 75 Ga. 2:18; Riley V. State, 13 court, said: 'In this indictment, it is al- Miss. 397; Dudley v. Sautbine. 49 Iowa, 630, leged that the respondent, on the 1st day of 31 Am. Rep. 165; Mugler v. Kansas, 128 U. August, A. D. 1842, at, etc., sell and dispose S. (23. 8 Sup. Ct. 273, 31 L. Ed. 205. The inof, etc. It is evident that the omission is structions of the defendant, tending to show purely a clerical one. The auxiliary verb his good faith, did not constitute a defense, may be supplied by intendment.'" People and the court properly excluded this testiv. Duford, 66 Mich. 91, 33 X. W. 28; Shay v. mony. People, 22 N. Y. 317.

The second, third, fourth, fifth, and sixth The omission from the indi:tment in the assignments of error are made the basis of present (ase is so obviously clerical that it contention by defendant's counsel, as stated cannot reasonably be said that the defendant in his brief, that "the principal is not liable was misled or prejudiced in pleading to the under the statute for the act of his employé, indictment and going to trial, and it is too unless he had knowledge of such act; nor late, in a case of misdemeanor, for the de is he liable if the act is committed by the fendant to raise this question for the first employé against the crder of the principal time by motion in arrest of judgment. In and without his knowledge.” This would the case of People v. Duford, 66 Mich. 00, 33 doubtless be a correct stiktement of the law N. W. 28, the court said: "If the word 'id' under a statute which made the intention to had been used in the place of 'was,' after commit an essential ingredient of the crime. the word 'situate,' and before 'willfully,' it Our statute provides that "the proprietor would have charged the offense positively or owner of any of the establishments menupon the respondent. This mistake, we think, tioned in this act shall be liable to the penalshould be regarded as clerical and formal, ties prescribed by this act for any violation and one which did not mislead, or result to of its provisions within or at their estal)the respondent's prejudice. Especially should lishments, whether committed by themselves this be so held in view of the fact that the or by persons in their employ." It is clear complaint upon which he was arrested con- from this provision of the statute that intained the charge correctly stated. If the tent to commit is not made an essential elerespondent desired to take advantage of the ment of the crime, nor is it provided that it defect relied upon, he should have demurred shall be knowingly done. The indictment or moved to quash." As to whether the in this case uses the word "knowingly," but, omission of the word "lid," as in the indict- as the statute does not require it, it must ment in this case, would be fatal or not, we be treated as surplusage. In the case of do not deride; but, as the charge is a mis- Carroll v. State, supra, the Supreme ('ourt demeanor only, and the punishment assessed of Maryland said: "If intent is not an ina fine of $30 and costs, we are of opinion gredient in the offense, it logically follows that it must be inmaterial whether such or- and a violation of law. It is no defense ders are given or not, for he who does by that the defendant bad no intention to vioanother that which he cannot lawfully do in late the law. "Good intentions are said by person must be responsible for the agent's the proverb to be the pavement of another acts. In fact, it is his act. It cannot be place, but they are not a sound one for a that by setting another to do his work, and barroom. The law has been violated. It occupying himself elsewhere or otherwise, looks to the man it intrusted with the manhe cau reap the benefit of his agent's sales, agement of this business, and holds him liaand escape the consequences of his agent's ble. It is immaterial whether his liability is conduct. It would be impossible effectually based upon his negligence in permitting the to enforce a statute of this kind if that were sale, or upon the principle of agency, or upon allowed, and it would speedily become a dead both, for the defendant is liable for a negliletter.” This language was used by the court | gent sale from insufficient supervision of an in a case wliere the charge was selling liquor | agent, as much as if he had ordered the sale. to minors, but we see no difference in the If the clerk, as Judge Cooley says, supra, beprinciple involved. Our statute specifically | ing in possession of the keys, opened the saprovides that the act of the employé shall be loon on Sunday for traffic, the licensee could the act of the proprietor or owner of saloons not excuse himself from liability by his abwhere liquors are sold or gambling is per- sence or ignorance; nor can be do so in the mitted, and it is the proprietor or owner who present case of a sale to the minor by being is declared liable both for his own and his temporarily absent from the room. The deemployés' acts and negligence. The evidence fendant chose to seek for and assume the showed that Guy C. Clements, a minor, was liabilities of the calling of a saloonkeeper in the saloon of the defendant for about 30 that he might enjoy its profits. He cannot be minutes on one occasion, and while there he allowed to enjoy its profits and assign its participated in gambling which was being duties and liabilities to another." In the case carried on in the saloon; and the evidence of People v. Roby, 52 Vich. 577, 18 N. W. 365, shows, also, that this minor was in the saloon 50 An. Rep. 270, the conviction of the owner of the deferdant on more than one occasion, was sustained where his clerk, in cleaning and other minors and students were also in out his saloon on Sunday, sold a drink of liqthe saloon at the same times. There is no uor without the knowledge or consent of the evidence in the record disclosing any effort owner. In deciding that case, Chief Justice to prevent these minors from entering the Cooley said: “As a rule, there can be no place, nor to prevent them from remaining crime without a criminal intent, but this is there after they had entered. It was proveni, by no means a universal rule. One may be therefore, that Guy C. Clements, both a minor guilty of the high crime of manslaughter, and a student of the New Mexico Military when his only fault is gross negligence, and Institute, did frequent and loiter in the saloon there are many other cases where mere negof the defendant, which was also proven to lect may be highly criminal. Many statutes be a place where intoxicating liquors were which are in the nature of police regulations, kept and offered for sale, and where gambling as is this, impose criminal penalties irrespecwas carried on.

tive of any intent to violate them; the purWhen this defendant procured a license to pose being to require a degree of diligence conduct that saloon, he obligated himself to for the protection of the public which shall conduct it in obedience to law, and one of render violation impossible." These observathe existing requirements of law was that tions are deemed equally applicable to the minors and students should not be permitted | present case, as our statute may be properly to loiter upon or frequent the defendant's sa- designated a police regulation also. In State loon premises. The defendant was under ob- v. Privett, 49 N. C. 100, the court instructed ligation to see that this law was obeyed, and, the jury to the effect "that, if the principal if he chose to leave others in charge of his instructed his clerk not to sell, he would not saloon, he is liable for their failure to do be liable for the sale by the clerk, unless what the law requires. This question is ful

such instruction had been abrogated expressly considered and a long line of authorities ly or by a course of conduct which would examined by the court in the case of State v. tacitly amount to the same.” When this case Kittelle, 110 N. C. 550, 15 S. E. 103, 15 L. R. was before the Supreme Court, speaking of A. 694, 28 Ain. St. Rep. 698, and, among other this instruction, the court said that the things, the court, in considering a statute defendant could not complain of it, because quite similar to ours, but in relation to the it was in his favor; but the court took ocsale of liquors to minors, said: "When reg- casion to express its disapproval of the inulations are imposed, as in this case, the struction by saying "that if they are to have licensee is criminally liable for their nonob- the effect given them by the charge in this servance. The defendant was found by the case, and in the argument of defendant's county commissioners 'qualified,' and a li- counsel, the act under which this prosecution cense was issued to him upon the personal is had will be very easily evaded." This trust that he would conduct the business ac- language indicates that the court would have cording to the regulations. The sale here reversed the case if it could have done so. made to a minor was a violation of that trust, Bearing upon this general proposition, see

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also, Xoecker v. People, 91 Ill. 491; Mc-| fense charged was committed by the defend-
Cutchcon v. People, 69 Ill. 606; Mogler v. ant or one of his employés. The instructions
State, 47 Ark. 110, 14 S. W. 473; Loeb v. requested by the defendant were not broad
Georgia, 75 Ga. 238; Snider v. State, 81 Ga. enough, in that they limited the issue to Mr.
753, 7 S. W. 631, 12 Am. St. Rep. 350; Riley O'Conner, who was in charge of the roulette
V. State, 43 Miss. 397; Dudley V. Sautbine, game authorized to be conducted in the de-
19 Iowa, 650, 31 Am. Rep. 165; People v. fendant's saloon.
Blake, 52 Mich. 500, 18 N. W. 360.

The assignment that the indictment was
It is suggested by counsel for defendant not sufficiently specific is not well taken, be-
that Mr. O'Conner, who was in charge of cause this objection was not raised by demur-
the roulette wheel, was not shown to have rer, motion to quash, or by motion in arrest of
been an employé of the defendant at the time judgment. The overruling of the motion for
Clements was in the saloon, and, the defend- a new trial was not assigned as error in this
ant being absent, there could be no conviction. court, and is therefore not before us.
It having appeared in evidence that this There being no error in the record, the
gambling device was in the defendant's sa- judgment of the court below is aflirined, with
loon, and that O'Conner was operating it, costs. It is so ordered.
and at least one witness testified that he be-
lieved he saw a barkeeper there when he MILLS, C. J., and PARKER, ABBOTT,
came in, and as the defendant, who was pos- and MANN, JJ., concur. POPE, J., having
sessed of the knowledge as to whether these tried the case below, did not participate in
parties were employés of his or not, failed this decision.
to testify that they were not employés, al-
though he gave evidence in the case, the jury
were warranted in concluding that employés

(14 N. M. 245) of the defendant were present, and granted

MOGOLLON GOLD & COPPER CO. V. permission, by failing to exclude these minors

STOUT. from the place, as was their duty to do. (Supreme Court of New Mexico. Aug. 28. 1907.)

The rulings as to evidence and the tenth 1. JURY-RIGHT TO JURY TRIAL-ASSESSMENT and eleventh paragraphs of the court's in- OF DAMAGES. structions, authorizing conviction for acts

In a suit for damages, where an injunc

tion is also asked, if the suit is primarily for of employés without knowledge or consent

the injunction, and the right to damages is mereof the defendant, and notwithstanding his in- ly incidental to and dependent upon plaintiff's structions to them, seem to be fully sustained

right to the injunction, the court may, without

the intervention of a jury, assess the damages by the weight of authority.

already sustained; but, if the action is brought The eighth assignment of error challenges primarily for the recovery of a money judgment, the refusal of the court to give instructions

it is triable by a jury, notwithstanding that 1, 2, and 3, requested on behalf of the defend

the plaintiff also asks for an injunction against

the further violation of his rights. ant. As to these instructions, counsel in

[Ed. Note.-For cases in point, see Cent. Dig. his brief says that, “if given to the jury, vol. 31, Jury, 88 30-83.] would have enabled it to have passed on the 2. CONTINUANCE-DISCRETION OF COURT. good faith of the defendant in seeking to obey In the case at bar the court committed no the law, and the jury would have been com

error in overruling defendant's motion for a

continuance, as the granting or refusing of a pelled to find the defendant not guilty under

continuance in any case rests in the sound disthe testimony." As has been stated in anoth

cretion of the court; and as in this cause the er part of this opinion, good faith of the case was first set for trial for the month of defendant does not constitute a legal de

June, 1905, and on July 6, 1905, was reset in

open court for trial for December, 1905, there fense, and while the court, in a case where

was no abuse of discretion in the refusal of the it has discretion, may consider good faith court to grant a further continuance, and to bein assessing the punishment, evidence tending

gin the trial of the case December 13, 1905. to show good faith does not enter into the

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 10, Continuance, $86, 7.] question of whether the defendant is guilty

3. APPEAL-ASSIGNMENTS OP ERROR. or not guilty, the sole question which the ju

Assignments of error as to the admissiry are authorized to determine. These in

bility or nonadmissibility of evidence, which are structions were therefore properly refused. in general terms and do not point out the par.

ticular question and answers objected to, will The ninth and tenth assignments cannot be

not be considered by this court. sustained for reasons heretofore stated. They

[Ed. Note. For cases in point, see Cent. Dig. are based upon the view that O'Conner was vol. 3, Appeal and Error, $ 3010.) not an employé of the defendant. The court 4. DAMAGES-ATTEMPT TO ARREST Loss. submitted the question to the jury as to When the injured party finds that a wrong whether the offense was committed by em

is being done him, he should use all reasonable ployés or not, and, in the eleventh and

means to arrest the loss, and when a reasonable

and bona fide attempt is made to reduce the twelfth instructions given by the court of damage, even if by such attempts the loss is inits own motion, the court plainly informed creased, it does not relieve the wrongdoer from

a suit for the full recovery of the damages the jury that there could be no conviction

claimed unless the jury believed from the evidence

[Ed. Note.-For cases in point, see Cent. Dig. and beyond a reasonable doubt that the of- vol. 15, Damages, $$ 119-132.]

and defendant in error has been deprived of the use of said water for his stock and for domestic purposes. Damages were asked in the sum of $2,000. Defendant in error also asked for an injunction, and that he be decreed to have prior right to the use of the waters of Mineral creek, to the full extent of his prior appropriation, and for general relief. Issues were finally joined, and the cause was set for trial, at the next term of court. Motion was made to strike the cause from the trial docket, which was denied. Motion for a continuance was made, and was likewise denied, and the case was finally heard by a jury, which returned a verdict in favor of plaintiff below, defendant in error herein, for the sum of $2,000 damages. At the suggestion of the court $630 of the verdict was remitted, and judgment was entered for the sum of $1,350. Motion for new trial was argued and overruled, and a writ of error was sued out.

McMillen & Raynolds and Dougherty & Griffith, for plaintiff in error. James G. Fitch and W. H. Winter, for defendant in error.

5. SAVE-INJURY TO GROWING TREES-EviDENCE.

In a suit for damages for the destruction of growing fruit trees and grapevines, it is competent to prove the damages such as are here claimed, by showing the value of the trees and vines destroyed, or by showing the value of the real estate with the trees and vines growing upon it and its depreciation by reason of their loss, or in both ways. (Syllabus by the Court.)

Error to District Court, Socorro County; before Justice Frank W. Parker.

Action by the Mogollon Gold & Copper Company against John W. Stout. Judgment for defendant, and plaintiff brings error. Amended and affirmed,

The complaint in this case discloses that in the year 1883 the defendant in error settled on, and has since resided upon, a certain tract of land situated in the county of Socorro, in this territory, containing a trifle over 100 acres, and that in April, 1894, the United States patented the same to him; that immediately upon his settlement upon the land in 1883 defendant in error took and appropriated one cubic foot of water per second from Mineral creek, when that amount of water was fiowing in said creek, by building a certain irrigation ditch about 1.800 feet long and 20 inches in width, extending from a point on Mineral creek above lands of defendant in error down to and across his lands; that the water so appropriated was used for irrigating his lands, vineyard, fruit trees, plants, and vegetables, and for watering his live stock, and for domestic purposes; that his lands were irrigated from five or sis times during each season; that at the time of his appropriation the water of Mineral creek was pure, and suitable for the purposes for which it was appropriated; that in the year 1893, plaintiff in error erected a large quartz or stamp mill, with a crushing capacity of over 100 tons for every 24 hours, some distance above the head of the irrigation ditch, and so near Mineral creek that the tailings from the mill ran into Mineral creek and polluted the waters of that stream with mineral poison and other substances highly injurious to vegetable and animal life; that the tailings and other deleterious substances were carried by the waters of the creek into the irrigation ditch of defendant in error and upon and over his lands; that by reason of the pollution of the water the same was rendered unfit for the uses and purposes for which it had been appropriatel, and that by reason of the tailings running into the irrigation ditch it has filled up, and the lands thereunder have been permanently injured by the deposit thereon of the tailings and the mineral poisons; that the alfalfa, a vineyard, trees, plants, and vegetables of defendant in error have ceased to grow and be productive; and that he has wholly lost his crops, and the alfalfa, vineyard, trees, plants, and vegetables have been poisoned, dried up, and wholly destroyed,

MILLS, C. J. (after stating the facts as above). On the several assignments of error we will consider those that we deem pertinent to the proper disposition of this case. It will not be necessary to take them up sererally, as those which relate to the measure of damages can properly be considered together.

1. The first alleged error to be considered is that the court below erred in overruling the motion of defendant to strike the cause from the jury trial docket and in submitting the cause to trial by jury. The claim of plaintiff in error is based upon the wellknown principle that, if jurisdiction attaches, a court of equity will go on and do complete justice, although in its progress it may decree on matter which was cognizable at law, and that, as the complaint in this case set up facts which called for both legal and equitable relief, when the court took jurisdiction for the purpose of administering equitable relief--that is, issuing the injunction prayed for it took jurisdiction of the case for all purposes, and would itself decide the question of fact involved in the case, without the intervention of a jury. Our Code of Civil Procedure authorizes the uniting of both legal and equitable causes of action in the same complaint, where they arise out of the same transaction or transactions, connected with the same subject of action. Subsection 33, § 2685, Comp. Laws 1897. Even a' cursory examination of the statement of facts which precedes this opinion will show that the legal and equitable causes of action stated in the complaint arise out of the same transaction. Indeed, it is nowhere contended that the complaint improperly joined causes of action. The

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