El Nuevo mexicano., 1917-08-30

II. Where "a trust agreement "a
the benefit of creditors provides tha
III the real estate conveyed to tn
trustee should be sold for a stipuls
ted price per acre, the attorneys I'd
the creator Of the trust should be pal
for the services a given sum and sue
trust agreement Is accepted by all q
the creditors, neither the trustee no
the court has any right to disregar'
such provision, and such attorneys ar
entitled to the compensation named Il
the trust agreement.
q Opinion by Roberts, j., Parker J
and Leahy, D. J., %concurring.
~ The Kidd Case
State Of New Mexico, appellant, VS.
Oscar Kidd, appellant, No. 1886
Mora county
The appellant, together with on,
Berry Jay, was indicted for the muir
der Of Paul Taylor. Jay was acquitte,
and the appellant was found guilty O
voluntary ~manslaughter. He brings
this appeal.
Judgment Of the court below at
firmed.
Syllabus
/. Appellant was convicted OF vol
untary manslaughter. According tt
his own testimony, and that Of
others, he was assaulted with a dead
Ily weapon, a pistol, and Threatened
with immedite death. There was eyi
dence tending to show previous Illicit
relations between appellant and the
wife Of deceased. Under such cir
cumstances it was not error to sub
init to the jury the issues as to. the
guilt of the defendant of voluntary
manslaughter, and the proof was suf-
ficient to support such a verdict. All
that is required to reduce a homicide
from murder to voluntary man.
slaughter is such heat of passion arts.
ing from such adequate provocation
at the time as to excite In the mind
such emotions as anger, rage. sudden
resentment OF terror, as may be suf-
Eficient to obscure the reason of an
ordinary man, SO as to prevent DELHI
Grafton and to exclude malice, and to
render the slayer, acting as an ordi-
nary man, incapable of cool, reflec-
ton. }-raI1ny5rlf rlf eurH 6far
2.9dThe error in admitting a photo
graph in evidence which has not been
accounted for, is waived by a subse-
quent admission by the party con-
cerned Of its g~enuineness.
3. Appellant was charged by the
mother of the deceased with illicit re-
lations with the wife of the deceased,
and he failed to- deny the same. The
evidence was correctly received by
the court as an admission by silence.
In overruling an objection to the evil
dence, the court stated, that he adj
mitted it on the theory Of an admis-
sion by silence and that he regard
ed the silence of appellant as of great
Importance. While exception to the
remark was taken, no motion to with
draw the remarks from the jury was
made. 1t is held for that reason, that
no available error INTERVIEWED.
a.. Where counsel object to a ques-
ton calculated to qualify a witness
to, speak to a certain point and have
opportunity given them by the court
to disqualify the witness, but fail to
do so, they cannot complain of his
testimony.
5. A witness was allowed to testi.
fly that n Of the defendants was
a gb-between between appellant and
his wife of the deceased. In SO testi-
flying the witness was detailing the
reasons she had for ordering the man
away from her hotel, and gave all OF
the facts upon which she based her
inference that he was a go-between
II is held that the admission of this
evidence was harmless error under
the circumstances. " ..tfs
6. A witness testified for appellant
that he was in the hotel in front Of
which the homicide occurred; that he
heard a shot and then went to the
door and saw the deceased in the act
of picking up a s~ix-shooter from the
ground and the appellant in the act
of drawing his pistol from his pocket.
He was asked on cross.examination
whether, shortly after the killing, the
mother of the deceased did not, in the
presence of his mother and a Mrs.
Farmer, upbraid him for not going to
the assistance Of her son and saving
him from death, and whether Mrs.
Farmer did not then say that the
mother of the deceased must not
blame the witness for the reason
that the witness mother was hold
ing him and that he could not so out
under the circumstances. The
mother of the deceased was put ON in
rebuttal and testified to such CONVEX.
sation. It is held that the testi-
mony was admissible on the theory
that the circumstances placed before
the witness were such as, to cadl for
a denial If the statements were I'm,
true, and r~eflecting upon the truth oil
the testimony of the witness at the
trial. aa
Z. A witness was asked whether
he, on a certain occasion made a Ger
tain admission concerning his knowl-
edge of the homicide. He was then
asked If he made the same admission
to another person, and then asked
whether he made the same admission
to two other persons. Held that the
occasion of the admission was suffi-
identified for the purpose OF
the impeachment.
8. Where the context Of a question
that the time referred to must
been Just after the homicide, in
stead of just before as IL appears in
the transcript, complaint of the in
competency of the evidence will not
be heard on that ground.