Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1914-12-02
MRS. KLAsNER
LOSES OUT IN
FINAL HEARING
Supreme Court Reverses Itself
for Second Time in Three
Days; Judgment Of Lower
Court Affirmed.


Santa Re. Dee. l.---For the second
lime In three days the state supreme
court reversed Itself today. this time
in the famous Lille G. Klasuer case
from Lincoln county.
The court. In. an opinion by Chief
Tnstlcc G. j. Roberts. upon rchearing
affirmed the decision OF the lower
court In the former opinion the
ro,lrt had reversed the lower, court
and reminded the case for a new
trial.
Mrs. Klasnor Is q Lincoln county
pioncer. AID was convicted of the
larceny of several calves. AS the SUI
prcme court puts Il. the defendant
found herself In the emba rrassing po-
stInn In that Tho calves In question
were found enclosed In small aifal-
fa pasture near appellants residence.
This pasture was surrounded by a
most and wire fence. the wires being
either five or seven in number, the
bottom wire being eight or twelve
inches from the ground and the sec
'ond wire the same distance from the
first, while The remaining wires we're
somewhat further apart
The court adds: In this case Il
appears that substantial justice has
been done, and the objection urged Is
purely technical" The court takes
rather advanced grounds when 1t
SAYS MANY of the state courts have
departed from the old practice which
held that arraignment and plea were
indispensable to a valid verdict and
mdgment Of conviction" The appel
liant urged that she had not been ar
raigned The trial court of its own
motion amended the record so as TO
show a proper arraignment and plea.
and the case proceeded without the
defendant objecting. However, ono OF
the main objections was that the
owners of the animals were known
TO the grand jury. which nevertheless
IN the indictment referred to them
as unknown owners but no excep-
ton was saved. and the supreme
court cannot therefore review the OBJ
lection, although in its opinion it in
Inmates that such objection would
have held water.
other points were covered by the
syllabus. which is as follows.
lon rehearing, IL having been
called to the attention OF the court
that no motion was made for an in
structed verdict on, the ground OF va
Rance between the indictment and
proof of such variance In any man
ner called TO the attention of the trial
court, the judgment Of re vers;il is set
aside, as II Is a Well established rule
of this court. that the question of va
rance between the allegations III The
Indictment and the proof. unless
raised In the court below, cannot be
reviewed here.
"2-Where the name OF the owner
81 an alleged article stolen is alleged
In the indictment 10 be unknown, II
is not incumbent upon the state TO
prove In the first instance affirma-
lively that such fact was not known TO
the grand jury, but II must show thai
such name Is unknown, or prove such
a state of facts or circumstances as
renders the alleged unknown fact UNI
certain, in which event such fact is
presumed to have been unknown TO
the grand jury: but If there is evil
dence tending to show that the grand
jury did know, or could by the exer-
else of reasonable intelligence have
known or ascertained the name ot
the true owner. or. that 1t was neglf'
gent or perverse in not alleging what
was at its command to know, then
the burden is upon the state to show
that the grand jury did not know
such alleged unknown name.
'3.-Failure to formally arraign o
defendant is not q fatal objection
where such defendant was present IN
court and testified as witness upon
his trial in his own behalf and was
represented ny counsel and no obJec-
ton is interposed to proceeding with
the trial without such arraignment.
"A ~ Where no exceptions are taken
to Instructions given by the court or
It's own motion. error cannot be as
signed upon such Instructions. w
"5-Declarations made by de-
PENDANT in his own favor, unless a
part Of the res gestae or of confess
sion offered by the prosecution, are
not admissible for the defense.
''e.--No error is committed in sus-
tanning an objection to a Hypothetical
question propounded to witness
where such question is not based upon
facts as to which there Is such evi-a
dence that q jury might reasonably
find that they are established. -
Where n motion for 4 new trial
is based on the ground of newly dis
covered evidence. such motion must,
in addition 10 the affidavit of the APP
pllcant be supported by the aflidaSit
OF the new witnesses. which must SET
forth the newly discovered evidence
and the facts to which such witnesses
viii testify, or satisfactory excuse
must be given for not obtaining such
affidavit