Territory of New Mexico v. Rudabaugh, 2 N.M. 222 (1881)

Jan. 21, 1881 · Supreme Court of New Mexico

2 N.M. 222

The Territory of New Mexico, Appellee, v. David Rudabaugh, Appellant.

January 21, 1881.

Practice on Review. (1) Insufficient bill of exceptions.

1. The bill of exceptions stated that the defendant excepted to an instruction asked for by himself and given by the court. It referred co the transcript for matter which was intended to be part of the bill of exceptions. It omitted to slate a number of instructions which it stated were refused by the court, and such refusal excepted to by the defendant. It had, at the close of the testimony, no certificate of the judge that it contained all of the evidence.

Held, unnecessary to examine the case, and that, perhaps, the appeal might properly have been dismissed, but that judgment would be affirmed.

Appeal from District Court of Santa Fe county.

Parks, Associate Justice:

The appellant in this case seems to have abandoned his appeal, and as the bill of exceptions is imperfect, it may be briefly disposed of.

There is no certificate of the presiding judge at the close of the testimony that it contains all of the evidence. In the body of the bill, there is a reference to the transcript for matter which is' thus intended to be made a part of the bill of exceptions.

A number of instructions which it is stated were refused by tbe court are nowhere to be found in the bill or transcript, although it is stated they were refused by the court, and such refusal excepted to by the defendant. And the defendant, as excepting to an instruction, ashed for by himself and given by the court.

As we understand the case, it is not necessary to examine it further. Perhaps the court might properly have dismissed the appeal, but we deem it better to affirm the judgment.

Judgment affirmed.