{
  "id": 8300786,
  "name": "TERRITORY OF NEW MEXICO v. GREGORIO MIERA and JACK COLLINS",
  "name_abbreviation": "Territory v. Miera",
  "decision_date": "1866-01",
  "docket_number": "",
  "first_page": "387",
  "last_page": "388",
  "citations": [
    {
      "type": "official",
      "cite": "1 N.M. 387"
    }
  ],
  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
  },
  "jurisdiction": {
    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 211,
    "char_count": 3115,
    "ocr_confidence": 0.418,
    "pagerank": {
      "raw": 1.6634129231622513e-07,
      "percentile": 0.6947389596845222
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    "sha256": "49722c4dad064fab14260669c10a4901e6ba73c2531215733914c69598f49d18",
    "simhash": "1:a03fbf33adfe9652",
    "word_count": 507
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  "last_updated": "2023-07-14T17:54:22.823830+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "TERRITORY OF NEW MEXICO v. GREGORIO MIERA and JACK COLLINS."
    ],
    "opinions": [
      {
        "text": "By Court,\nBenedict, C. J.:\nThis cause was an indictment against the defendants under the eleventh section of.chapter 55, page 360, of the Revised Statutes, which provides: \u201c That if any person shall unlawfully assault or threaten another in a menacing manner, or shall unlawfully strike or wound another, the person so offending shall, upon conviction thereof, be fined in any sum not exceeding one hundred and fifty dollars, or imprisoned in the county jail not exceeding thirty days, or both, at the discretion of the court, and shall moreover be liable to the suit of the party injured.\u201d\nThe defendants, upon trial, were found guilty by the jury. They then moved in arrest of judgment, upon the ground of the insufficiency of the indictment, and the court sustained the motion, and arrested the judgment. The attorney-general then appealed to this court, in pursuance of a statute of this territory. The indictment charges that the defendants \u201cdid beat, bruise and wound\u201d one Guadalupe Lopez, but omits to aver that it was done \u201c unlawfully,\u201d in the language of the statute above quoted.\nThe offense specified is one created by the statute, and is usually termed an \u201c aggravated assault and battery.\u201d An indictment which describes an offense in the language of the statute which declares and defines it, is held in courts and practice to be sufficient in substance. Any material omission in charging the offense as the statute defines it will render the indictment bad. In this case there was a fatal omission, in not charging that the acts of the defendants were \u201cunlawfully\u201d done.\n\u201cUnlawfully assault or threaten another,\u201d or \u201cunlawfully strike and wound another,\u201d is the language of the statute upon which the indictment in this case was intended to be framed. There are many strikings which are not unlawful, and so are not offenses which the laws punish; such as parents correcting their children, or an executive officer executing the sentence of a court upon a person convicted of a crime. So, too, one man may lawfully beat,' bruise, and wound another in the necessary defense of himself, wife, or child.\nBy using the word \u201cunlawfully\u201d in the statute, the legislature intended to discriminate between acts of violence which may be lawful and those which are not. To the evident intention disclosed, the indictment in this case should have conformed. The omission was a substantial omission, and the court below decided properly in arresting the judgment.\nThe judgment of the court below is affirmed by this court.",
        "type": "majority",
        "author": "Benedict, C. J.:"
      }
    ],
    "attorneys": [
      "C. P. Clever, attorney-general, for the appellant.",
      "Tompkins and Aslmrst, for the appellee."
    ],
    "corrections": "",
    "head_matter": "TERRITORY OF NEW MEXICO v. GREGORIO MIERA and JACK COLLINS.\nOmission or \u201cUnlawfully\u201d in Indictment for Aggravated Assault.\u2014 An indictment, under section II, chapter 55, of the Revised Statutes, for an aggravated assault, charging that the accused \u2018 \u2018 did beat, bruise, and wound\u201d a certain person, but omitting the word \u201cunlawfully,\u201d contained in the statutory description of the offense, is fatally defective.\nAppeal from the district court for Santa Ana county. The case appears from the opinion.\nC. P. Clever, attorney-general, for the appellant.\nTompkins and Aslmrst, for the appellee."
  },
  "file_name": "0387-01",
  "first_page_order": 399,
  "last_page_order": 400
}