Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1910-08-25
SUPREME COURT
STILL BUSY
Three More Opinions Were
Handed Down at This
Forenoon's Session
MURDERER GETS NEW TRIAL
Case of Vigil vs.. Stroup Is
Reversed and Re-
manded.

In the territorial supreme court this
morning, case No. 1894, Robert Hagin,
appellee, VS.. Jeff Collins, appellant,
was submitted On briefs and on mo-
tion to dismiss.
Case No. 1885, William J. Robert
son. ct al, appellants VS.. The Mine
and Smelter Supply Company, appel
lee, was argued and submitted.
Two cases set for tomorrow.
The following opinions were handed
down this forenoon:
Case No. 1917, Amarillo Hardware
| Company, appellee, VS.. ]. F. McMur-
ray, appellant. from Chaves county,
was affirmed in an opinion by Asso-
ciate Justice Frank w Parker. Appel
lee brought an action in the court be-
low for goods sold and delivered, the
principal item of which was a three
section Emberson disc plow operated
| by means of a steam engine. Appel
liant defended upon the ground that
| the plow was sold upon the express
warranty that the said plow would
break up and properly turn over the
grass sod of the defendant upon his
farm east of Roswell He also plead
| ed an implied warranty to the same eff
feet and charged that the plow failed
to do the work in compliance with the
warranty The Judgment is in favor
of the appellee.
In case No. 1904, Territory of New
Mexico, appellee, VS.. James M. Ken
nedy, appellant from Grant county,
| the judgment of the lower court is re-
versed and the case remanded for
new trial. The opinion is by Associate
Justice Ira A. Abbott Kennedy was
found tried for murder in the first de-
gree and found guilty at Silver City.
The syllabus says:
"In trial for murder the only evil
dence offered in behalf of the defend
ant was that he vas insane at the
time of the alleged homicide.
"The trial court gave appropriate in
structions as to the presumption Of in
nocence and the burden of proof rest
ingt on the territory, and provided for
the Jury three forms for a verdict;
by one of which they could find the
defendant guilty as charged; by one
not guilty on the ground of his in
sanity at the time of the alleged homi-
eide; and by one not guilty on the
ground of insanity at the time of the
trial, but provided no form for YER
dict Of not guilty independent of the
question of insanity, and, as appears
bv the record, refused the request OF
the defendants counsel to provide
such form.
"Held reversible error.
'If, in the progress OF trial on
criminal charge the trial judge con-
cludes from observation or otherwise
that there is reason to doubt the san
ity of the defendant at that time he
should submit that question to the
Jury along with the principal issue, re-
quiring a special verdict On that point.
'Tt is error to instruct jury, in
criminal case, that if they believe
from the evidence the defendant is in
sane at that time they should ac-
quit him, but no error of which the
defendant can, with reason, complain
since it gives him chance of ac-
quittal to which he is not entitled.
"The word frenzy as used in an in
struction on insanity may have been
misleading and might better have
been avoided"
In case No. 1876, Sofia Garcia de
Vigil, Administrative of the estate OF
Eslavio Vigil, deceased, appellant, VS..
Andrew B. Stroup, appellee, from Ber-
nalillo county, in an opinion by Asso'
ciate Justice Merit c. Mechem, the
Judgment Of the lower court is re-
versed with Instructions to reinstate
this cause on the docket and proceed
in accordance with the opinion OF the
supreme court. The suit was an out
growth of the removal of Eslav1o Vigil
by the then Governor M. A. Otero,
from the office of county superintend-
ent of schools, and the appointment OF
Stroup as his successor. Vigil sued to
collect the fees o fthe Office for the un'
expired portion. The court below dls-
missed the complaint. The opinion
, saws: "If the commission of the gov
ernor reciting a vacancy and appoint
ing Stroup to fill it was nullity. it
should not be permitted to stand un'
less grave public interests require 1t
and certainly not as between indlvid.
nails. AS far as the rule announced in
Hubbell VS.. Armijo, Territory VS.. Ei
dodt and Conklin VS.. Cunningham, is
concerned, it's application will not be
, by this court extended any further
than to Suoh conditions as obtained III