7 N.M. 248 | N.M. | 1893
At the May term, 1892, of the district court for the county of Socorro, two indictments were found against the defendant, Walter Cook, which charged him with being unlawfully engaged in the labor of selling wine,. beer, liquor, and merchandise on Sunday, the Lord’s day. At the same time forty-four other indictments were found against other persons for similar violations of the Sunday law. It appears by the record that all the persons so indicted clubbed together and raised a fund for the purpose of employing counsel to defend them, and to test the validity of the Sunday law. The appellant was among the subscribers. Hon. Neill B. Field, an eminent member of the territorial bar, was selected for the purpose of conducting the defense to all the forty-six indictments. It also appears that he, whilst in the discharge of his duty as such general counsel, entered pleas of guilty to the two indictments against this appellant, as well as to the other forty-four indictments against the other parties; making, however, a test case of the indictment found against one A. Cortesy. That was done by agreement of the parties. Cortesy lost his case in the court below, and appealed from the judgment to this court at the July term, 1892, when the judgment of the court below was affirmed, all the judges concurring, except the writer of this opinion. Cortesy v. Territory, 6 N. M. 682. On the fourteenth day of June, 1892, the thirty-eighth day of the term at which these indictments were filed, the following entry appears upon the court’s records: “Now comes the territory, by her district attorney, and come the defendants, by their attorney, in the above entitled and foregoing forty-six causes, and waive formal arraignment, and enter their respective pleas of guilty to the charges contained in the respective indictments therein, and now, by consent of the parties, the judgment and sentence of the court in the said forty-six cases is stayed and not pronounced, and said forty-six cases are continued until the next term of this court.” At the next term of court, begun on the first Monday in May, 1893, this defendant appeared by other and different counsel, and moved the court on the record and affidavits to set aside the pleas of guilty entered in these two cases, for the reason that he had never been arraigned, and had never personally entered such pleas, and had never authorized any person to enter them for him. The territory thereupon filed counter affidavits, showing or tending to show the general retainer of Mr. Field in all of these cases; and that he, by virtue of such employment, and by the tacit or express authority of the defendant, as well as of the defendants in the other cases, had entered such pleas in their behalf. The court below, upon a full and fair hearing, denied defendant’s motion. Defendant then moved to strike the counter affidavits from the files, and also in arrest of judgment, both of which were overruled, and judgment entered upon each indictment, fining the defendant $15 and costs, and that he be committed until such fine and costs are paid. A motion for a new trial was also made and overruled. The defendant has brought the two cases by appeal to this court, insisting in his assignment of errors that the judgments below should be vacated on account of the court’s refusal to set aside the pleas of guilty, and to grant a new trial or trials, alleging that it did not appear of record that said defendant was ever in person arraigned or ever personally entered a plea of guilty, and further setting up in his affidavits that he had never authorized anyone to enter such plea for him. This is at least the substance of the error of which the defendant complains.