8 N.M. 446 | N.M. | 1896
Lead Opinion
This case was brought up to this court from the district court of the county of Santa Ee by writ of error. It is now before us upon motion by the territory through its solicitor general, to quash the writ of error and affirm the judgment of the court below for the alleged reason that appeal is the only process by which criminal cases can be brought up from the district courts to this court for review.
And provides that “writs of error, bills of exceptions and appeals shall be allowed in all cases, from the final decisions of the district courts to the supreme courts of all the territories, respectively, under such regulations as may be prescribed by law.” Sec. 1869, Rev. Stat. U. S.
It is elementary that the mode employed at common law, for the review of common law cases, is by writ of error, and decisions in chancery by appeal. Hence, the territorial courts being vested with common law jurisdiction by the organic act, the decisions of the district courts are reviewed in the supreme court, in common law cases, by writ of error, and in chancery cases by appeal.
At common law the review of a judgment in a criminal case could be by writ of error and in no other way. Rice v. Rex, Cro. Jac. 404; Rex v. Seton, 7 T. R. 373; Rex v. West Riding, etc., 7 T. R. 467; Reg v. Carlisle, 2 B. & Ad. 971; State v. Shepard, 37 Wis. 395.
Permission from the crown was, however, in criminal cases, always necessary to maintain the writ in England. This permission was granted as of right in misdemeanor, while in treason or felony it was a matter of grace from the sovereign, who could withhold or allow at pleasure, though there was manifest error in the record.
The reason assigned for this was that the felon had forfeited all he had to the crown, and the crown could exercise its pleasure-whether or not to give it back. Rex v. Earberry, Fort, 37.
The method of procuring a review when this grace was extended was always by writ of error and in no other way.
In the United States, forfeitures not being one of the penalties visited upon the felon, the writ is awarded by the courts as of course wherever it would have been granted in England by fiat of the crown. Sec. 1362, 1 Bishop, New Crim. Proc.
Congress, in preserving to litigants the right of review by writ of error undoubtedly must have had in mind the writ of error as the same was employed by common law, because it conferred common law jurisdiction upon the court wherein it was to be made use of, and left it to our legislature to regulate the manner of taking and allowing the same.
This, our legislature has done by the enactment of section 2194, Compiled Laws, -which provides: “The clerk of the supreme court shall issue a writ of error to bring into tbe supreme court any cause finally adjudged or determined in any of the district courts, upon a praecipe therefor * * * at any time within • one year from the date of such judgment * * *” And section 2199: “Hereafter no writ of error shall be allowed by the supreme court of this territory, except within one year after the rendition of the judgment on which said writ of error is based; and that said supreme court shall make rules for the govern-' ment of the practice in writs of error in common law cases, which said rules shall not conflict with any of the laws in force in this territory.”
The terms “writs of error” and “appeals,” as they appear in the organic act, have a technical significance well known to the law. It is then provided that they “shall be allowed in all cases” and are guaranteed parties in all cases.
Something' having definiteness and substance is secured to the court and to the parties before it by this language; and it is put beyond the power of the territorial legislature to deny,, alter, or curtail. The jurisdiction is fixed by the organic act, the power to regulate the procedure is reposed in the legislature. It can not be contended that congress has, in one and the same form of expression, secured to the supreme court a certain jurisdiction and to parties certain rights, and given to the territorial legislature the power to make that jurisdiction nugatory and these rights unavailing.
This provision, with its imperative phraseology, intends nothing short of assuring to the appellant, not whatever the territorial legislature may be pleased to call an appeal,,but an appeal known to chancery, and assuring to the plaintiff in error the writ of error with all the benefits growing out of, and incident to, such writ.
What congress had given, it has not authorized the territorial legislature to take away by regulations. The allowance of the writ of error may be regulated by the legislature, as has been done; but these regulations must not derogate from the nature and substance of the thing given it to regulate. Whatever the territorial legislation on this subject is, or may have intended, it can not have taken from the supreme court jurisdiction to review cases cognizable at common law by writ of error.
The power given by the organic act to the legislature to regulate writs of error and appeals is not operative to enable the legislature to limit or to regulate what is fixed and assured by the same organic act.
The power to regulate does not confer power to abrogate. Our legislature has not, however, made any attempt to interfere with or deny the jurisdiction conferred upon the supreme court by the organic act, but on the contrary has regulated such jurisdiction by sections 2193 and 2194, Compiled. Laws. In providing for appeals from final judgments in criminal cases, it has merely given a concurrent remedy.
In United States v. Horace C. Gibson, 1 Idaho, 364, the court reached the conclusion that a common law action could not be re-examined on appeal, but must be brought up by writ of error, in the following opinion:
“The courts of this territory are created by the organic act, and their jurisdiction and powers must be ascertained by the provisions of said act and the laws of the territory passed in pursuance thereof. Both the district and supreme courts are by the express terms of the act clothed with chancery and common law jurisdiction ; and the legislature has no authority to abridge such jurisdiction, nor has the legislative assembly made any attempt so to do * * *. How shall this appellate jurisdiction be exercised? The organic act, in very plain and positive language, declares that writs of error, bills of exceptions and appeals shall be allowed in all eases from the final decisions of the district courts to the supreme court,- under such regulations as may be prescribed by law. Congress, therefore, has not delegated the power to the legislature to say in ■what cases writs of error and appeals may be allowed, but has emphatically declared in language that is plain, that they shall be allowed in all cases. The act, however, does not prescribe the mode in which the;* shall be' allowed, but expressly provides that they shall be allowed under such regulations as may be prescribed by law, thus giving to the legislature the power to prescribe the regulations as to the manner in which they may be taken and allowed.”
“The declaration of the act is that writs of error, bills of exception, and appeals shall be allowed. These words have a technical and well understood meaning. ‘Writs of error’ are known to common law proceedings, but an appeal is not; but writs of error and appeals are the modes pointed out by congress whereby common law, equity, and admiralty causes may be reviewed and re-examined in the supreme court; and when congress used these words in the organic act, it must be considered that they used them in accordance with the sense that had been given them by the supreme court of the United States. There is no doubt but that they were so used and intended to be understood, in the same section, in providing for the writs of error and appeals from this court to the supreme court of the United States.”
“If this be the sense in which these words were used, it follows that the true interpretation of that clause of the organic act is this — that writs of error and bills of exceptions shall, in suits at common law, be allowed and taken, and appeals in equity and admiralty cases shall be allowed from the district to the supreme court; and that the power is conferred upon the legislature to regulate the manner and prescribe the rules of practice in taking and allowing them.”
II. Remedy by writ of error is concurrent with remedy by appeal.
In criminal cases the common law, as recognized by the United States and the several states of the union, shall be the rule of practice and decision. Sec. 2484, Comp. Laws.
Under the common law, as we have already seen, the writ of error was the method by which a judgment in a criminal cause could be reviewed.
By providing that the common law, as recognized by the United States and the several states of the union, should be the rule of practice and decision in the territory, the legislature lias vested the supreme court with jurisdiction to review judgments in criminal cases by writ of error.
In Barrett v. State, 36 Me. 198, the court say: “Although the remedy by appeal in civil cases takes away the remedy by writ of error, by implication, as a general rule, yet in criminal cases the reason for the rule ceases, and there it does not apply * * *. His remedy for appeal would often be more onerous than that by writ of error to reverse an erroneous judgment, and, therefore, it is that his right to proceed by error is not taken away or impaired by giving him the right of appeal.” Citing Cook, Pet., 15 Pick. 239; Thayer v. Com., 12 Metc. 9; Co. Lit., 288; 3 Blacks. Com. 407.
In United States v. Plumer, 3 Clifford, 1, at page 58, Judge Clifford said:
“At common law the writ of error would lie in criminal as well as in civil cases, and that the rule was just as applicable to misdemeanors as the case at b.ar (murder), which was declared by act of congress to be a felony.”
In Sanders v. State, 85 Ind. 318, at page 257, the court say:
“It is held in well considered cases that although there is a statute governing proceedings 'in criminal cases, the writ is not abolished unless the statute specially or by implication abrogates it. This is so held, with respect to writs eoram nobis, by Marshall, C. J., in Strode v. Stafford, 1 Brock., U. S. C. 162. In speaking of the claim that the writ, coram nobis can not exist under the statute, Cowen, J., said in Smith v. Kingsley, 19 Wend. 620: ‘There is no statute expressly and in terms repealing its power, nor any which does by necessary implication. Mere silence or omission to regulate proceedings upon such a writ will not operate as a repeal. The power, therefore, remains as at common law, except as to the mhre form coram nobis resident, because the fiction of the record, remaining before the King himself, is gone. We, therefore, have lost the name of.the writ, but nothing more.’ ”
In many of the states the common law writ of érror is recognized as forming part of the law. Holford v. Alexander, 12 Ala. 280; Adler v. State, 25 Ark. 517; McKinney v. Western, etc., 4 Iowa, 420; Hawkins v. Bowie, 9 Gill. & J. 428; Fellows v. Griffin, 9 Sm. & M. 362; Calloway v. Nifong, 1 Mo. 223; Reid’s Adm’r v. Strides, Adm’r, 7 Grat. 76; Dows v. Harner, 6 Ohio, 518; Wood’s Exec. v. Caldwell, 34 Penn. St. 92.
III. Our statute amply provides for a review of the judgment by writ of error.
Kearney’s code, promulgated by General Kearney in 1846, and which was by the legislature of 1850 adopted, contains the only provision for appeals from final judgments in criminal cases. These provisions were incorporated into the compiled laws of 1884, as sections 2468, 2469, 2470, 2471, 2472 and 2473.
By section 2469 appeals are allowed from final-judgments rendered upon any indictment, to the supreme court, if applied for during the term at which the judgment was rendered. Appeals only lie from such final judgments if allowed during the term at which the judgment was rendered. After the term has expired no appeal can betaken.
In 1880 the legislature passed a comprehensive act, regulating the mode of taking appeals and suing out writ of error. This act is compiled in sections 2193 and 2194 of the Compiled Laws of 1884, and is in conformity with the organic act which gives the legislature power to regulate the writ of error and appeal, By that act it was provided that all causes either in law or equity, finally adjudged or determined in the district court, may be removed into the supreme court of the territory for review either by appeal or writ of error. Sec. 2193, Comp. Laws 1884. The next section, 2194, regulates the practice on appeal and writ of error, and provides that the writ of error may be sued out within one year from the date of the judgment brought into the supreme court. How could the language of section 2193 be made plainer for the purpose of providing for the review of judgments in criminal cases by writ of error? At.t, causes, either in law or inequity, maybe removed into the supreme court for review, either by appeal or writ of error. Criminal cases or causes at law as distinguished from causes in equity and as all causes at law may be removed into the supreme court by writ of error, it follows that criminal cases can be so reviewed.
The legislature of 1884 recognized the fact that judgments in criminal cases could be reviewed either by appeal or writ of error, under the laws as they then existed in the territory, and enacted what is compiled as section 2201 of the Compiled Laws of 1884, viz.: —
“Appellants or plaintiffs in error in criminal cases, removed into the supreme court of the territory for review, shall not be required to print the record, nor any part thereof,” etc. See Kidder v. Bennet, 2 N. M. 37.
In Missouri, 2 Wagner’s Stats., section 13, there is a provision “that the state in any criminal prosecution shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding sections.” Notwithstanding this provision, it was held in State v. Cunningham, 51 Mo. 479, that “when a motion to quash an indictment is sustained in the lower court, the state can bring the case to this court by writ of error or appeal.”
The solicitor general in his brief, at page 8, seems to argue that section 2193 of the Compiled Laws does not apply to criminal cases, because no provision for supersedeas or stay of execution is therein contained. This contention is wholly without merit. At common law, a writ of .error is not a supersedeas so as to discharge from custody, but in capital cases it operates to stay execution. Sec. 783, Wharton’s Crim. Prac. & Pro.
A writ of error is a supersedeas by implication. If the record of the judgment is removed by writ of error, it is necessarily a supersedeas for the record being removed it is impossible for the justices of the court in which it was to award execution. 9 Brac. Abr. Supersedeas, p. 284.
In the Bishop of Ossory’s case, 3 Crooke, 534, it was held that “a writ of error is a supersedeas, although the record itself is not removed to the court where errors are brought, but a transcript only.”
The right of appeal in a capital case is necessarily coincident with that of a stay of execution, until that appeal can be heard. State v. Pagels, 92 Mo. 300.
In Kitchen v. Randolph, 93 U. S. 86, the court say: ',“At common law, a writ of error was supersedeas by implication.”
Under the statutes and the authorities it is plain that the judgment in this cause may be reviewed by writ of error.
The motion to quash the writ of error is therefore overruled.
Concurrence Opinion
(concurring). — In concurring in the result of affirmance in this case, I desire to submit some views upon the indictment, which has be’en so strenuously attacked by the counsel for plaintiffs in error, and with equal ability defended by counsel for the territory. The attacking counsel have supported their contention with common law authority, and it must be conceded that, if we are to adhere to what the chief justice shows were denominated the “unseemly niceties which are to the law a blemish and a reproach,” the attempt on the part of the counsel for the territory in the trial court to employ equivalents of accustomed legal phrases would meet with disaster. This decision in no sense blazes the way of departure in this court from strict common law technicality, even if we did not think that the spirit of our statute had already pointed the road. As early as the case of Territory v. Maxwell, 2 N. M. 250, we find this court announcing, upon the principle of “cessante ratione cessat lex,” that the courts of this territory should not follow the common law in prosecutions for embezzlement, as to do so would be to proclaim them powerless to punish in this day and age such an offense. The Missouri courts take a different view, and, while deprecating that they must, yet fear that in capital cases, at least, innovations even as to form should not be allowed, as one would know not where they would stop. . It is admitted by those courts that the popular acceptation of the word “instantly” makes it the equivalent of “then and there,” but they reject the indictment because they know not to what point a departure will extend. State v. Reakey, 1 Mo. App. 3; State v. Lakey, 65 Mo. 217. With due respect for those courts, it appears to me they mention what might be taken as a most excellent limit to the “innovation,” and they say they will not go to it. The rule I see no danger in is that stated by the court, to which this court looks for binding authority, where we find that in an indictment it is sufficient if time and place is stated “with reasonable certainty.” Ball v. U. S., 140 U. S. 119, 11 Sup. Ct. 761. Can it be doubted that both the court of appeals and the supreme court of Missouri, if they considered that the popular acceptation of the word “instantly” was “then and there,” would not have held indictments bad for its being used for “then and there,” if they had recognized the rule of “reasonable certainty?” It is unnecessary to pursue this subject further as to the word “instantly,” in view of its thorough discussion in the main opinion in this case, but I have thought there should not have been all omission in reference to the Missouri cases called to our attention, of which, how-* ever, it may be said that the latter ones seemed to proceed upon the theory that they must lie on the Procrustean bed which Judge Napton, in Lester v. State, 9 Mo. 666, set up in Missouri jurisprudence.
The indictment is also claimed to be bad and the verdict unintelligible, or at least not intelligible, for murder in the first degree, because murder in that degree is not exclusively charged. Again, we are remitted to the doctrine of equivalents. While a proper charge of murder in the first degree, as the pleader must have intended to charge this, would be that the defendants did unlawfully, willfully, deliberately, and preineditatedly and with malice aforethought, kill, etc., he employs the words “unlawfully, feloniously, willfully, purposely, and with express malice aforethought, did,” etc. Inasmuch as we ascertain that the statutory definition of express malice is a deliberate intention unlawfully to take away the life of a fellow creature, we may make another arrangement of words by equivalents; not equivalents, if objection may be made, that are so held by popular meaning, but equivalents as the statute says. Instead of the words in the indictment, we say, “did unlawfully, willfully, feloniously, purposely, and with the deliberate intention aforethought to take away the life of one Francisco Chavez, then and there a fellow creature,” and thus we have every word in the statute except “premeditated,” and in its place “aforethought.” To ascertain whether “premeditated” is strictly necessary to define murder in the first degree, may perhaps be best done by seeing if the words we have could possibly define murder in the second degree, or a killing, which is statutorily called murder in the third degree. "We will use our statutory substitution for the words of the indictment in an attempt to join with them words descriptive of murder in the second degree, to wit, “did unlawfully, feloniously, willfully, purposely, and with the deliberate intention aforethought then and there to take away the life of one Francisco Chavez, and without design to effect the death of said Francisco Chavez, while he, the said Francisco, was then and there engaged in .the commission of a misdemeanor” (specifying the same), and so through with the different allegations which constitute murder in the second degree in its different phases. This collocation of words plainly expresses a contradiction creating an absurdity. Test these words by joining them with the words descriptive of murder in the third degree, and the contradiction in terms becomes equally palpable. It is.evident, however, and admitted on the argument-by the able counsel for plaintiffs in error, that murder is charged in some degree, if the words “instantly died” may stand. I think it not an unfair method of ascertaining whether or not murder in the first degree is charged to show that it is impossible for these words to fit in the description of any other degree known to our law. Of course, it does not follow that because a lower degree is not described a higher degree must be, but it is legitimate to argue that equivalents in description, and- especially if they are statutory equivalents, can by no stretch of construction apply elsewhere. As already said, we have, by substitution- of the statutory definition for express malice, every word in this indictment that the statute calls for, except “premeditated.” Instead of “deliberately and premeditatedly,” we have“with the deliberate intention aforethought to take,” etc. I think the indictment clearly sufficient after verdict, and that it charges murder in so exclusive a way, under our statute, as to make the verdict plainly intelligible. The record in this ease I consider free from reversible error.
The record in this case, as it was originally brought into this court, did'not show that the defendants had been arraigned and had pleaded to the indictment. While the cause- was here, an application was made to the district court where the defendants had been tried and convicted, in which it was averred that in truth and in fact the defendants had been arraigned and had pleaded not guilty before the trial below, and that the arraignment «and pleas were omitted from the record by the inadvertence of the clerk. The district court was asked to order the correction of the record in these particulars by an entry nunc pro tunc. The application was presented in the presence of the defendants and their counsel, after due notice; and, after considering it, and the proofs submitted on both sides, the district court granted the motion. The solicitor general then appeared in this court, suggested the diminution of the record here, and on his motion a certiorari was issued to the clerk of the court below, who thereupon sent up the record as amended, in which the arraignment and pleas of not guilty appeared as entered therein nunc pro tunc. A bill of exceptions was also prepared by the defendants covering the transactions which occurred on the proceedings to amend the record. The bill of exceptions was duly approved by the court, and has been brought here also on the certiorari by agreement of the parties. We have' treated the matters of alleged error in this bill of exceptions assigned in the defendants’ objection and protest as though it were a part of the principal case, and not as an independent proceeding. 1 Elliott, Gen. Prac., sec. 192. The district court, in the nunc pro tunc proceeding, acted with entire regularity, and its conclusion is abundantly supported by the proofs adduced, and no error is disclosed therein. The only question is as to whether the district court had any power to amend the record at all. This power is denied by counsel for defendants upon the following grounds: (1) That the amendments can be made-in only those cases where there are some written memoranda on file in the cause on which the amendments may be based; (2) that, after the term has expired, inaccuracies in the record can not be corrected or omissions supplied by nunc pro tunc entries; (3) that they can not be made in criminal cases; (4) that they cannot be made by an inferior court while the cause is pending in a superior court on writ of error; and (5) that Judge Hamilton, who presided at the trial of the defendants, and made the nunc pro tunc order, was not clothed with judicial power to act in the premises.
Opinion on the Merits
OPINION ON THE MERITS.
At the June term, A. D. 1894, of the district court for the county of Santa Fe, Francisco G-onzales y Borrego, Antonio Gronzales y Borrego, Lauriano Alarid, and Patricio Valencia were indicted for shooting and killing one Francisco Chavez, on the twenty-ninth day of May, 1892, in the county of Santa Fe, and territory of New Mexico. On March 18, 1895, a special term of the said district court was duly called by the Honorable N. B. Laughlin, associate justice of the supreme court, and judge of the First judicial district of New Mexico. Judge Laughlin, deeming himself disqualified to preside at the •trial of the said defendants, called in to sit for him Hon. H. B. Hamilton, associate justice of the supreme court, and judge of the Fifth judicial district of the territory of New Mexico, and thereupon Judge ■Hamilton, during the said special term, commenced the trial of the said parties, to wit, on the twenty-third of April, 1895, and continued the same until the twenty-ninth day of May of the same year, when the jury returned a verdict finding the accused guilty as charged in the indictment. A motion was thereupon made for a new trial and an arrest of judgment, which said motions were duly argued, and, after full consideration, were overruled, and the defendants were thereupon sentenced by the court to be executed on the tenth day of, July, 1895. An appeal was thereupon taken by the accused to this court by writ of error from the district court, and the case is now before us for review and determination upon numerous points of error alleged to have been committed during the progress of the trial.
It is further urged that, as the statute (Comp. Laws, sec. 552) provides that special terms shall not conflict with regular terms, the special term at Santa Fe was necessarily terminated by the regular term constructively existing in San Juan on the third Monday of April, 1895. But said section merely declares against a conflict, and does not declare the cessation or illegality of the proceedings of the seemingly conflicting special term, and it can not, in any view, be legitimately maintained that the legislature by such direction intended a mandate, and the vitiation of all proceedings in disregard of it. By section 543, special terms are, as to their length, as absolutely in the control of the presiding judge as are regular terms; and section 552 authorizes special terms, not only in the discretion of the judge in the furtherance of justice, but without any condition or restriction as to duration. It may, therefore, be logically concluded that the authority to continue terms until adjourned by order of court-was deliberately designed in the interest of the public to prolong the regular term, if needed, and to afford special terms without limitation in lieu of regular terms lapsed, and in furtherance of justice. It must also be presumed rationally that the legislature, in attaching by section 552, a condition to the authority to hold special terms, contemplated an actual, and not a constructive, conflict, and did not design that a term being held should be annulled by one that could not be held. Section 2, chapter 61, of the statutes of 1893, required the respective counties to provide for the expenses of their district courts, and practically inhibits terms in counties in which there are no funds. It is experience that a frequent consequence of this system has been the impossibility to hold courts in some of the counties at the time fixed by statute, and, as it is a rule of law that public officers are presumed to perform their official duties, and no court was held in San Juan on the third of April, 1895, it. can be legitimately concluded that there were no funds for a term there, and thatthe judge of the district, with knowledge of this deficiency, appointed a special term in Santa Fe, with the intention and expectation that it would be continued as long as required in the furtherance of justice. It is not conceivable that a court allowed by law and in session could be terminated by a term not only not in esse, but that could not exist; the one was a court in fact, the other a court by construction only, and between them there could not be' a practical conflict. It seems, therefore, that the territorial statute sustained the judge in convening the special term, and in continuing it beyond the times fixed for the regular terms for the counties of San Juan, Rio Arriba, and Taos for the spring of the year 1895.
That the accused were apprised that they were on trial for the murder of Francisco Ohavez on the night of the twenty-ninth of May, 1892, in the county of Santa Fg; that it was proved that Francisco Chavez was killed then and there; that the accused admitted that they were then in the county of. Santa Fe; that they defended themselves against the charge of having murdered Francisco Ohavez on the night of the twenty-ninth of May, 1892, by their alibi, claiming that they were not at the place of the killing on said twenty-ninth of May, 1892; and that their acquittal would have protected them against a second prosecution for the same crime. (See Comp. Laws, section 675),—are facts that can not be controverted, and effectually dispose of the pretension that.the phraseology of the instrument upon which they were arraigned and tried was not sufficiently specific to indicate the venue of the alleged offense. Many authorities have been submitted to sustain the contention that venue and time are not legally laid by the averment of instant death; that it does not exclude the possibility of the death a year and a day out of the jurisdiction, where and after the wounds were given, but, with due respect for the tribunals that have so adjudicated, we can but regard their conclusions as tending to. contract the natural import of language, and strain it from its substantial signification. While courts could abstain from the encouragement of departure from the phraseology of forms almost sacred from protracted adherence to them, they should not pursue such conservatism to the excess of servility. Synonyms should be duly regarded, and words so interpreted that their natural meaning should not be destroyed. Innovations may be unwise, but the antagonism to them that will preclude the use of equivalent expressions would be even more pernicious. In recognition of these principles, less narrowness is obtaining in the construction of pleadings, and, while certainty in their allegations is required, strict conformity to wonted verbiage is not exacted. “Instantly,” say lexicographers, — those who define it etymologically, and those who give its legal meaning, — implies “without any intervention of time,” “allows nota pa-rticle of delay,” “marks an interval too small to be appreciated;” and that Francisco Chavez, in dying “with an interval too small to be appreciated” between the shots he received and his death, died at the place where he was shot, seems an irresistible conclusion. That an event that transpires instantly can be remote from its cause seems a contradiction not entitled to any consideration. That there can be, between an occurrence and its creation, no intervention of time, not a particle of delay, not an appreciable interval, and yet be doubt about the place of its accomplishment, seems an impossible conjecture. An injunction to do instantly is partially obeyed by the act to forthwith proceed to do it, though it may never be done; but, if accomplished without intervention of time, without a particle of delay, the interval between the order and its execution being not appreciable, it is done instantly.
In Hardin v. State, 4 Texas App. 371, the indictment which charged that “Charles Webb, of mortal wounds so given as aforesaid, instantly did die,” was pronounced sufficiently certain of the time and place of his death. The court regarded the words “so given” as suggestive, and we may with equal propriety attach consequence to the description, “said mortal wounds,” contained in the indictment under consideration, as they can refer only to wounds recited as having been inflicted upon Francisco Chavez on the night of the twenty-ninth of May, 1892, and of which he “instantly died.”
In Turpin v. State, 80 Ind. 148, an indictment that contains in the allegation as to death neither the words “instantly” nor “then and there,” is sustained, as the venue and time were once stated. This opinion is based upon statute, but the court declared that the equivalent of “then and there” would, in any contingency, be sufficient.
In State v. Huff, 11 Nev. 21, the court, in considering the objection that the indictment did not contain sufficient certainty as to the place of the crime and the day of its commission, say: “It may be said, with reference to this particular case, — and it will be a sufficient answer to appellant’s objection, if there were none other, — that the indictment does show, by fair and reasonable intendment, that O’Reilly was stabbed and died on the same day. It says the defendant stabbed him on-that day, and killed him on that day. Therefore he must have died on that day. The evidence, we believe, shows that he did not die until the next day, but this was an unimportant variance, and the question is as to the sufficiency of the indictment, not as to the conformity of the proof.” It was further decided in this case that failure to demur to the indictment for the defect that it did not declare that the death occurred within a year and a day from the perpetration of the act which produced it was a waiver by the defendant.
In Comm. v. Bugbee, 4 Gray, 206, in an indictment for an assault, the allegation that the assault was then and there made was sufficient without the repetition of “then and there” before the charge, “did actually strike.” “There might have been, with the words ‘then and there,’ ” said Chief Justice Ewing, in a similar case, “greater deference to tautology,' but not thereby a more explicit or intelligible averment.” Says Metcalf, J.: “Objections like that now before us were never held valid in prosecutions for misdemeanor, but only in favorem vitae in indictments and appeals of death.” 3 Hale, P. O. 178; 2 Hawk. P. C., chap. 23, sec. 28; 7 Dane, Abr. 272. “Even in capital cases,” continues Judge Metcalf, “they have been deemed by the most eminent English judges as among ‘the unseemly niceties’ by which the law is blemished and reproached." 2 Hale, P. C. 193; 2 Gabb, Cr. Law, 198, 199. “And this court,” further declares Judge Metcalf, “in the case of Comm. v. Barker, 12 Cush. 186, 187, decided that an indictment for murder was sufficient which alleged that the defendant, at Worcester, in the county of Worcester, on the second of January, 1853, with a certain axe, feloniously did strike M. B., giving unto the said M. B., then and there, with the axe aforesaid, feloniously, willfully, and with malice aforethought, one mortal wound;” that the words “then and there” needed not to be repeated before the allegation of the mortal wounds, because, notwithstanding the English decision to the contrary, it was deemed most clear that no one upon reading the indictment could fail to understand that the mortal wound was alleged to have been given on the day named in the indictment in Worcester. Says the judge further: “We are of the opinion that a charge expressed in a plain, intelligent, and explicit manner, and in the accustomed legal phraseology, is sufficient to warrant a judgment against the party thus charged, whether that charge be a capital offense or a misdemeanor.” See, also, Comm. v. Doherty, 10 Cush. 52.
In Ball v. U. S., 140 U. S. 136, 11 Sup. Ct. 767, it is declared that “all the essential ingredients of the offense charged must be stated in the indictment, embracing with reasonable certainty the particulars of time and place, that the accused may be enabled to prepare his defense, and avail himself of his acquittal or conviction against further prosecution for the same case.” The indictment in this case was sustained as to time, though it contained no averments upon that point, upon the ground that it was observed from the-indictment that it was returned before the lapse of a year and a day from the time it was alleged in the indictment the party was assaulted; but no place of death was averred, and there were no data to supply the omission, and the indictment was accordingly remanded, with directions that it should be quashed.
In People v. Enoch, 13 Wend. 159, it was charged that the defendant feloniously and of malice aforethought killed his wife, the words “with premeditated design” being left out, and a general verdict of guilty was returned, and judgment upon the same for the execution of the accused was sustained.
We will now consider the objection to the court’s action in the admission and rejection of testimony.
It will be sufficient to say in reference to the alleged errors of permitting Ike Nowell to detail an alleged conversation with Thomas B. Catron, one of counsel for the defendants, in reference to the testimony of said Nowell in this case, and in allowing Luiz G-onzales to do the same as to an interview between him and Charles A. Spiess, another attorney for the accused, that we recognize that counsel occupy such relations to their clients as to justify a disclosure of their action in the interest of such clients and for their benefit at their trial.
Many other errors are alleged which we do not deem it necessary to consider, and it may be rémarked that in the multitude of assignments there appears almost a lack of confidence in the substantial merits of the appeal, which impression is not diminished by the technical character of the complaints mainly relied on in the oral argument. Says the supreme court of the United States, in Grayson v. Lynch, 168 U. S. 468, 16 Sup. Ct. 1071: “It is to be regretted that defendants found it necessary to multiply their assignments to such an extent, as there is always a possibility, in the very abundance of alleged errors, that a substantial one may be lost sight of.” This is a comment which courts have frequent occasion to make, and one which is too frequently disregarded by the profession. Having reached the conclusion that none of the errors alleged by the accused to have been committed by the trial court were material, and being impressed that the instructions given are a fair, clear, and comprehensive enunciation of the principles by which the jury should have been guided in their consideration of the evidence, we do not discover any ground for reversal of the action of the lower court.
The evidence in the record is abundant to establish that the accused, in pursuance of a diabolical conspiracy of long standing, unlawfully, feloniously, willfully, and purposely shot Francisco Chavez with a deliberate intention to take his life; and the judges of the facts wisely found that there should not be, by their default, any escape for the perpetrators from the penalty for the unprovoked and cold-blooded assassination.
This case may, as to this territory, be pronounced a cause celebre from the prominence of the deceased, from the notoriety of the criminals,- from the complication and mystery of the circumstances, from the delay in procuring a jury, from the time (nearly six weeks) and the money (amounting to thousands of dollars) consumed in the trial, from the extent and the intensity of the public interest, and from the exceptional skill and zeal displayed by counsel in its management; and it would be extraordinary if such litigagation, under such circumstances, did not develop difficulties formidable even to a court of large experience. We are much pleased to say that the presiding judge, though but recently elevated to the bench at the date of this trial, with admirable discrimination and commendable firmness held the scales of justice. In conclusion, we hereby affirm the judgment of the lower court in this ease.