By the opinion originally handed down, we reversed the judgment solely on the ground that the court erred, at the close of the state's case in chief, in overruling appellant's motion for a directed verdict. By motion for rehearing, the state makes the point that such error was waived when the appellant, instead of standing upon it, offered testimony in his defense. This point is now raised for the first time. In the original briefs the state not only failed to raise it, but joined in the discussion of the merits of the assignment. *Page 477
[4] Appellee cites 17 C.J. 339, 38 Cyc. 1590, 26 R.C.L. 1083, Walker's Errors in Criminal Proceedings, 28, and many decisions. Appellant cites decisions, many of which are reviewed in note to Cincinnati Traction Co. v. Durack, 14 Ann. Cas. 222. We do not see substantial difference in the views of counsel. Neither counsel has cited any decision of this court. From a cursory search of our own reports, we find that error has been many times assigned in this court upon the refusal of the trial court to direct a verdict of not guilty on motion interposed at the close of the state's case. On one occasion (State v. Ellison,19 N.M. 428, 144 P. 10) this court used language which might be urged as contrary to the doctrine of waiver urged by the state. On other occasions, such assignment was considered and overruled, because it was found that there was substantial evidence for the jury. State v. Wilson, 25 N.M. 439, 184 P. 531; State v. Taylor,26 N.M. 429, 194 P. 368; State v. Ulibarri, 28 N.M. 107,206 P. 510. On at least two occasions the assignment was considered and upheld, where the defendant did not stand upon his motion, but interposed his defense. State v. Corral et al., 27 N.M. 535,203 P. 533; State v. Craig, 28 N.M. 110, 206 P. 513. In none of these cases does it appear that the question of waiver was either urged or considered.
The weight of the authorities and the reasoning of the decisions supporting the doctrine of waiver impress us sufficiently that, if necessary to the determination of this case, we should give to the question the most careful consideration. It is unnecessary, however, in view of the conclusion which we have reached upon this motion for rehearing. At the close of the entire case, appellant moved the court for a directed verdict in his favor because of the insufficiency of the evidence to sustain a verdict against him, and he here urges as error the overruling of that motion. At appellee's earnest insistence, we have reviewed the evidence in its entirety, including the rebuttal, and are of the opinion that the same would not support a verdict *Page 478 of guilty, and that the court erred in overruling appellant's motion made at the close of the case.
In the additional evidence adduced after the state first rested, we find but one matter material to this discussion. The state offered evidence tending to show that the tenants and employees of the company held under leases containing the following provisions:
"That said lessor hereby leases to the said lessee * * * those improvements, consisting of a certain dwelling * * * and the outbuildings appurtenant thereto, together with the surface ground occupied by said buildings and improvements. * * * for the temporary occupation of the lessee and his family only, and to provide him a temporary dwelling place during his employment with the lessor."
"This lease is for the term of one month only, and thereafter from month to month until terminated by the lessee, and is subject to the absolute right of the lessor to terminate the same and all rights of the lessee thereunder at any time before expiration, which right of termination is expressly reserved to the lessor. * * * The lessee shall not sublet the premises or any part thereof, or assign this lease, nor use or permit the premises to be used for any purpose except for a dwelling place, nor take any cotenants, or any boarders, who are not the employees of the lessor, nor permit any person or persons, other than members of the family of the lessee, to use or occupy said premises, except with the written consent of the lessor first had and obtained. It is understood and agreed that the lessor owns and uses the leased premises herein described as a part of its plant, and in connection with the operation of its mines, and for the purpose of leasing only to those whose occupation will facilitate and be for the convenience of such operations."
Upon these provisions the state relies to distinguish this case from Commonwealth v. Burford, 225 Pa. 93, 73 A. 1064, claiming that, in view of these restrictions in the leases, Harris v. Keystone Coal C. Co., 255 Pa. 372, 100 A. 130, becomes applicable. In the Burford Case the leases, in so far as described, are very much like the leases here involved. The court said:
"The owners leased the several houses to various tenants. The written lease in each case was for the term of one month; it designated the lessee, the amount of rent to be paid, the number by which the house was known, provided for the payment of the rent punctually, in case of holding over, the tenancy should be for another month and from month to *Page 479 month. The written lease contained no reference to any public or private way."
In the Harris Case it is said with reference to the lease there in question:
"It declares in part that `any and all paved streets or alleys or other highways in and about the said premises are private roads and are the private property' of the defendant company, and reserves to the company `the right and authority to keep out and away from said premises any person or persons whom it may deem necessary or expedient in the exercise of this reserved right of policing the premises and for the peace, comfort, and safety of the defendant company's tenants."
What is there in the lease here in question which can be construed as restricting the right of the tenant to use the streets of the town or camp in the usual manner of use by town dwellers? The streets are not mentioned, nor the appurtenances. The "premises" are not to be sublet, nor the lease assigned. No boarders are to be received except the employees of the lessor. None but members of the tenants' families are to be allowed to use or occupy the premises without first obtaining the written consent of the lessor.
Certainly some use of the streets was anticipated. It is fair, at least, to assume an intention that the employee may use them in going to and from his work. Other necessary uses suggest themselves. The wife may have business at the store and at the post office. The children must attend school. The family may have occasion to visit the outside world, and must use the streets to reach the railroad station or the public roads. These are only ordinary human necessities, and must have been anticipated. But there are other necessary and usual contacts with the outside world which require the ingress of those with whom the tenant and his family have business. Sickness may require the physician. Protection of life or property may require the peace officer. It would hardly do to say that the physician or the sheriff, summoned on such business, or the person delivering a purchase made by the tenant or his family, was being permitted to use or occupy the demised premises. Use and occupation is a term every day employed in dealing *Page 480 with the relation and the law of landlord and tenant. If it has ever been so construed, appellee has failed to point out the occasions. If these visits of the physician, the sheriff, or the deliveryman cannot be said to violate the express prohibition against use and occupation of the premises by others than the family, how can they be said to be excluded by the lease, which contains no restrictions whatever as to the use of the streets?
Appellee urges that the provisions of the lease, the recitals therein, and the circumstances shown require a liberal construction, to give effect to the intention of the lessor to retain exclusive control over its streets. The leases are uniform. They are prepared by the lessor. Every tenant is required to contract in those terms. The contract is unusual in the restrictions upon the use of the demised premises. Familiar rules of construction require such a lease to be construed strictly against the lessor. The terms are dictated by it. The lessee has no voice. He can take the lease or leave it. Under such circumstances, why should we add by construction to the restrictions expressed? Should we not, rather, presume that the lessor, having the power and the opportunity, and fully alive to the conditions, has expressed in the lease all that it considers necessary for the protection of its property?
As pointed out in Commonwealth v. Burford, supra, the statute makes public and punishable what was theretofore a private wrong. It is designed merely for the protection of property. The owner may waive it as to the public in general by not posting. He may waive it as to particular persons by granting permission to enter. It does not affect his right to make such contract as he may see fit regarding the use. In this case the owner has seen fit to build a town upon it, and to lay out streets therein, and to lease the houses therein, upon terms implying the right of the tenants to the use of the streets, without incorporating in the contract any restriction upon such use. So doing, it has waived, or rather contracted away, the right to prohibit ordinary use of the streets by its tenants. One who is on the streets at the invitation and upon such *Page 481 business of the tenant as does not conflict with the restrictions of the lease is there under the contract, and not in violation of the statute. Alabama Fuel Iron Co. v. Courson, 212 Ala. 573,103 So. 667, upon which appellee places great reliance, we do not consider in point.
Appellee suggests that our original opinion may justify an inference that it is necessary to a conviction that defendant be shown to have knowledge of the trespass notices. A reading of the opinion will disclose that what we said on the subject of appellant's knowledge was merely in answering a contention of the appellee. It is perhaps well to say, however, that we do not consider that question.
It is also suggested that our original opinion is ambiguous as to whether we reversed the case on the ground of variance. We did not. We held that notices posted by Stag Canyon Fuel Company were not admissible under a complaint alleging operation of the property by Phelps-Dodge Corporation. These were the only notices of which appellant was shown to have knowledge. In argument, appellee made a point of such knowledge. We merely excluded the notices from consideration on the ground of variance, which disposed of appellee's claim as to appellant's knowledge. It was error to admit the notices. Whether it was reversible error, in view of the subsequent proof of posting by Phelps-Dodge Corporation, we did not decide.
Having now considered, as appellee insists that we should, all evidence in the case, we reach the same conclusion as when we considered only the state's evidence in chief. Appellant was entitled to a directed verdict when the state finally rested, as well as when it first rested. We therefore adhere to our original disposition of the case.
PARKER, C.J., and BICKLEY, J., concur. *Page 482