Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1910-08-27
SUPRE NE COURT
REVERSES VIGIL
STROUP CASE
Suit by Administrative of For
mer County Superintendent
TO Recover Fees Ordered Re-
inStatedi Other Cases,

Especial Correspondence TO Morning Journal
Santa Fe. \. NJ. Aug. 25-In the
territorial supreme court this morn
ing, case No. 1894. Robert Hagin, APP
pellee, vs., jeff Collins. appellant, was
submitted on briefs and on motion TO
dismiss.
case No. 1885. william ]. Robert
son. ct al. appellant, vs.. The Mine and
Smelter Supply COMPANY, appellee,
was argued and submitted.
Two cases are set for tomorrow.
The following opinions were hand
ed down this forenoon:
Case No. 1917, Amarillo Hardware
company, appellee. vs.. j. +. MeMur-
ray, appellant from Chaves county,
was affirmed In an opinion by Asso-
ciate Justice Frank w. Parker. APP
pellee brought an action in the court
below for goods sold ana delivered.
the principal item of which was "A
three section Emerson disk pillow oper-
ated by meal Of a steam engine.
Appellee defendend upon the ground
that the pillow was sold upon the eX-
press warranty that the said pillow
would break up and properly turn
over the grass sod OF the defendant
upon his farm east of Roswell. He al
so pleaded an implied warranty TO the
same effect and charged that the pillow
1850 ~ 49, ~ w n AN RAAa
with the warranty. The judgment is
in favor Of the appellee.
In case No. 1904, Territory of New
Mexico. appellee, vs.. James NJ. Ken
needy. appellant. from Grant county.
the Judgment of the lower court is re-
versed II the case remanded for a
new trail. The opinion is by Assoc
ciate Justice Ira a. Abbott. Kennedy
was tried for murder in the first de-
gree and found guilty at Silver City
The syllabus saws
In a trial FOR murder the only evil
dence offered in behalf of the defend
ant was that he was insane at the
time Of the alleged homicide.
The trial court gave appropriate
Instructions as to the presumption of
innocence and the burden OF proof
resting on the territory. and provided
Tor the jury three forms for a verdict,
by one al which they could find the
defendant guilty as charged; by D
not guilty on the ground of his in
sanity at the time Of the alleged homi-
eide. ana by one not guilty on the
ground Of insanity at the time Of the
trial. but provided no form for a YER
dict of not guilty Independent Of the
question of insanity. and. as appears
by the record, refused the request of
the defendants counse to provide
such a FORM
Held reversible error.
If. In the progress of a trial on q
criminal charge the trial Judge ON
cludes from observation or otherwise
that there is reason to doubt the san
ity OF the defendant at that time ne
should submit that question to the
jury along with the principal issue, |
recurring q special verdict ON that
point.
1t is error to instruct a jury, in a
criminal case. that If they believe I
from the evidence the defendant IL
at that time they should ac-
quit him, but NJ error Of which tie
defendant can. with reason, complain
since It gives him a chance of acquit-
tai to which he is not entitled.
The word frenzy as used in an
instruction ON insanity may have
been misleading and might have been
avoided"
In case No. 1875, Sofia Garcia de
Vigil. administrative Of the estate 81
Eslavio Vigil, deceased, appellant. W.
b. Stroup, appellee, from
county. in an opinion by
Associate Justice MERIT {. Mechem, !
versed with Instructions to reinstate
this cause ON the docket n proceed
in accordance with the opinion OF the
oulr The suit was an out
growth of the removal OF t.slaVio Vigil
BY the then Governor N. A. otero. |
from the office of county superin-
tendent Of schools. and the appoint
ment of Stroup as his successor vigil
sued 10 collect the fees of the office
for the |uneNpired portion. The court
below dismissed the complaint. the
opinion says
M the commission of the governor
reciting a vacancy and appointing
Stroup to fin il was a nullity. it should
not he permitted to stand unless grave
public interests require IL, n certain
is not as between individuals. A.
far as the rule announced in Huh
bell vs.. ArmiJo. Territory VS.. Eldodt
and Conklin vs.. Cuuningham. is con-
,erned. its application will not he by
his court extended any further thar
% such conditions as obtained in those
Asses.