Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1896-09-02

phraseology of forms almost sacred from
protracted adherence to them, they should
not pursue such conservatism to the ex-
cess of servility. Synonyms should be
duly regarded, and words so interpreted
that their natural meaning should not be
destroyed. Innovations may be unNise,
but the antagonism to them that will
preclude the use of equivalent express
sions would be even more pernicious.
In recognition of these principles, less
narrowness is obtaining in the construo-
tion of pleadings, and, whilst certaint y
in their allegations is required, strict
conformity to wontel verbiage is not ex-
acted. Instantly, say photographers,
those who define it etymologically, and
those who give its legal meaning, implies
"without any Intervention of time" "al-
lows not particle of delay" "marks an
interval too small to be appreciated"
and that Francisco Chavez in dying "with
an interval too small to be appreciated"
between the shots he received, and his
death, died at the place where he was
shot, seems an irresistible conclusion.
That al event that trauspires instantly
can be remote from it's cause seems a
contradiction not entitled to any consid-
Grafton. That there can be, between an oc-
of time, not particle of delay, not an ap-
preciable interval, and yet be doubt about
the place of its accom- plishment, seems
an impossible conjecture. An injunction
to do instantly is partially obeyed by the
act to forthwith proceed to do it, though
it may never be done, but if accomplished
without Intervention of time, without a
particle of delay, the interval between
the order and its execution being not ap-
preciable, it is done instantly.
Suilicicncy of Indictment.
In Tex, court of appeals, Hardin vs..
State, 371, the indictment which charged
that "Charles Webb of mortal wounds SO
given as aforesaid, instantly did de-"
was pronounced sufficiently certain of
the time and place of his death. The
court regarded the words $50 given" as
suggestive, and we may with equal pro-
priety attach consequence to the descrip-
tion, 'said mortal wounds" contained in
the indictment under consideration, as
they can refer only to wounds recited as
having been inflicted upon Francisco
Chavez on the night of the 29th of May,
1892, and of which he "instantly died."
In Turpin VS.. The State, 80 Ind, 148,
an indictment that contains in the alle-
CATION as to death neither the words in
stantly nor then and there, is sustained,
as the venue and time were once stated.
This opinion is based upon statute, but
the court declared that the equivalent of
then and there would in any contingency
be sufficient.
In State vs.. Huff, II New 81, the court,
in considering the objection that the in
dictment did not contain sufficient GER
tainty as to the place of the crime and
the day of its commission, say: ut may
be said with reference to this particular
case, and it will be sufficient answer to
appellants objection, if there were none
other, that the indictment does show, by
fair and reasonable intendment, that
O'Reilly was stabbed and died on the
same day. 1t says the defendant stabbed
him on that day, and killed him on that
day. Therefore he must have died on
that day. The evidence, we believe,
shows that he did not die until the next
day, but this was an unimportant vari-
ance, aud The 4usst.on is aa to the sufi-
ciency of the indictment, not as con-
formity to proof"
It was further decided in this case that
failure to demur to the indictment for
the defect, that it did not declare that the
death occurred within year and day
from the perpetration of the act which
produced it, was waiver by the defend
ant.
In Commonwealth We. Bugbee, 4 Gray,
206, in an indictment for an assault, the
allegation that the assault was then and
there made was sufficient without the
repetition of then and there before the
charge, did actually strike. "There might
have been with the words then and there"
said Chief Justice Ewing, in similar
case, 'greater Difference for tautology,
but not thereby more explicit or intelli-
gible averment." Says Metcalf, j.: COB
jections like that now before US were
never held valid in prosecutions for mis-
demeanor, but only in favorem vitae in
indictments and appeals of DEATH"
Hale, P. O., 178.
Hawkin, Chap. 20, Sec. 2S.
Dane Ab., 272.
"Even IN capital cases." continues
Judge Metcalf, "they have been deemed
by the most eminent English judges as
among the unseemly niceties' by which
the law is blemished and reproached."
Hale, P. c., 1893.
2 Gabbett, Grim. Law, 1913, 1879.