Santa Fe new Mexican. [volume] (Santa Fe, N.M.) 1898-1951, 1910-08-29

| DIODel OASIS lOE Illc dCllOA VI the lIldl
court"
J In case No. 1863, Territory of New
Mexico, appellee, VS.. Carlos Cecil
Aver, appellant, from BernaIillo coun-
| ty, the judgment of the lower court is
affirmed, in an opinion by Associate
Justice NJ. c. Mechem; Chief Justice
w. H. Pope, and Associate Justice
E. R. Wright, however, dissenting, the
dissenting opinion being written by
the former The defendant had been
| convicted of murder in the third de-
gree. The syllabus says:
In laying the foundation for the
introduction of the record of former
testimony given by witness claimed
to be absent from the territory, dec
larations made by the witness as to
his intention to leave the territory
permanently and the return of the
sheriff of mot found" endorsed on
the subpoena issued for the Witness
are each of them competent to prove
that the witness was not available
?. The evidence in this case con-
sidered and held not to tender a plea
of self defense, held that an instruc.
ton as to self defense, though enron
eous, was an error of which the ap-
pellant could not complain.
3. Where a trial court fails to in
struct the jury as to all the essential
ingredients of the crime charged, and
the defendant neither calls the
courts attention to such omission nor
takes exception thereto" he cannot
avail himself of such error on appeal.
Territory VS.. Watson, II n. NJ. 419.
4. An instruction defining "rea,
sonable doubt" to be zone for which
a reason could be given, based on the
evidence Or want of It," though err.
oneous, does not in this particular
case constitute reversible error,
where the jury might well have found
the defendant guilty solely on his own
testimony.
In the important case, No. 1856, the
Sacramento Valley Irrigation Com
pany, plaintiff in error, VS.. Oliver M.
Lee, ct al, defendants in error, from
Otero county, the judgment of the
lower court is reversed and the case
remanded. The case involves the dis
solution of the corporation named and
appointment of receiver The sylla-
bus says:
L. Where the plaintiff in error files
a transcript of the record but not, as
required by Sec 20, Chapter 81 of the
Laws of 1907, ten days before the re-,
turn day of the writ, and also files as
s1gnments of error, but not before the
return day of such writ, a motion to
dismiss the writ of error, on these
grounds, not made until after such
filing, will be denied. Armijo VS.. Abey-
tia, N. M. 533.
| 2. Sec. 1, Chapter 120 of the Laws
of 1909, amending Sec. 20, Chapter 81
OF the Laws of 1907, making the re-
turn day of writ of error 1870 days
from date of the writ instead of 80
days as formerly, deals with proceed
ure only, and prima facie, applies to
ali ractions-those which have accrued
or are pending and future actions.
). A decree granting an injunction
| and appointing a receiver for an in
solvent corporation under the provi-
sions of Sections 72 and 73, Chapter
79 of the Laws of 1907, is a final de-
cree within the terms of the Organic
Act relating to appeals and writs of
error
| 4. The complaint in a proceeding
under the provisions of Section 72,
! Chapter 79, of the Laws of 1907
which merely alleges: THAT the said
| corporation is insolvent and has sus.
pended it's ordinary business for want
of funds to carry on the same," does
not sufficiently state the facts and cir
cumstances of such insolvency to
make case within purview of the
statute. The facts and circumstan.
ces must be set out in the complaint
from which the insolvency of the com
pany shall appear.
In case No. 1882, James M. Cowles
appellant, VS.. James J. Hagerman, ap
pellee, which had been before the SUI
preme court before, from Chaves coun.
ty, the judgment of the lower court
was affirmed in an opinion by Asso
ciate Justice John r. McFie. The case
involved the claim of $500 by Cowles
balance alleged to be due by defend
ant for the sinking of we'll on which
the defendant had already paid $1,000
Hagerman defended on the ground
that the well was not completed with
in a reasonable time, the contract moi
naming a definite period.
In case No. 1885, William G. Robert
son, ct al, plaintiff, vs. The Mine ant
Smelter Supply Company ct al, ap
pellee, from Lincoln county, in ar
opinion by Associate Justice Franl
W. Parker, the judgment of the lower
court is reversed and the cause re
manded with instructions to reinstate
the complaint and award permanent
injunction against the SALE The sui
had been brought to foreclose a ma
terial mans lien upon a mining claim
and decree of foreclosure was award
ed. The appellants, owners of thu
property, were not served with pro
|