15 N.M. 292 | N.M. | 1910
OPINION OF THE COURT.
On March 10, 1906, Aurandt, the appellant was indicted for embezzling a letter containing an article of value, in violation of U. S. R. S. 5467. He was found guilty on March 11, 1908, and after motions for new trial and in .arrest was sentenced to imprisonment in the territorial penitentiary for one year. He thereupon appealed to this court.
The necessity of a plea to the validity of the trial is illustrated by the aiithorities to the effect that no jeopardy attaches until an issue has been made by plea. 12 Cyc. 268; Dismey v. Comm., Ky., 5 S. W. 360; Yerger v. State, Tex., 41 S. W. 621; Weaver v. State, 83 Ind. 289; 1 Bish. New Crim. Law, sec. 1029a.
In State v. Ulger Cheiner, 32 La. Ann. 103, 104, cited with approval in the Crain ease, the accused was, after the trial commenced, by order of court arraigned and his plea taken. The trial then proceeded under the direction of the court. The Supreme Court of that state said: "We cannot sanction such a departure from ancient landmarks in criminal procedure. The prisoner must be arraigned and must plead to the indictment before the case can be set down for trial or tried.” In the leading case of State v. Hughes, 1 Ala. 655, 657, it was said: "This proceeding cannot be sustained without a wide departure from established usage. * * * The idea of selecting and swearing a jury to try a case which in its progressive 'steps has not reached the stage where it is triable, is a perfect anomaly. The oath administered to the jury related to the present time and cannot authorize them to try a case which is 'after-wards. placed in a condition for trial.” To the same effect are Dixon v. State, 13 Fla. 631; State v. Montgomery, 63 Mo. 296; Weaver v. State, 83 Ind. 289; Parkinson v. People, 135 Ill. 401, 10 L. R. A. 91; Dansby v. U. S. 51 S. W. 1085, and cases cited; Browning v. State, 54 Neb. 204.
“That Jacob M. Aurandt, late of the First Judicial District, in the Territory of New Mexico, on the eighteenth day of March in the year of our Lord 1904, at the First Judicial District aforesaid, and within the jurisdiction of said court: Being then and there a person employed in a department of the postal service of the said United States to-wit, a postmaster of and for the postoffiee of the said United States at Santa Cruz in said First Judicial District, feloniously did secrete and embezzle a certain letter and packet which then and there came into his possession, and contained an article of value, and was intended to be conveyed by mail, that is to say, a certain letter and packet then and there directed to Jose Maria Martin, at ChimayOi in the Territory of New Mexico, a more definite description of the said article of value so then and there contained in the said letter, being to the said grand jurors unknown, and the said letter and packet not having then been delivered to the person to whom it was so directed.”
“It is urged that this count of the indictment is bad in that it fails to charge with sufficient legal certainty that the letter came into the respondent’s possession by reason of, or because of, his employment in the postal service; and we think that upon demurrer it should have been so held. It is a necessary implication of the statute that the letter should have come to the carrier in his official character. It is only a matter of inference, and not of necessary consequence, that it oame into his possession as .a postal carrier. It may have been delivered to him as a mere private person to be taken to the postoffioe, or picked up by him on the street and was being taken to the post-office, or perhaps to be returned to the sender whose name and address were on the envelope; and other not extraordinary circumstances may have attended his coming into the possession of the letter as a private individual. His possession acquired in any of these ways would be sufficient to meet the allegation of the indictment in this particular, and yet there would be no violation of the statute.” The opinion was rendered by Circuit Judge Severens and concurred in by Mr. Justice Lurton and Circuit Judge Richards. We accept the views there expressed as conclusive of the present case. We may add that the proper form of an indictment covering this point under Sec. 5467 is shown in Wright’s Case, 134 U. S. 136.
We consider this case, within,the principles just quoted and within the well recognized rule in cases of this kind that the plea will not lie where there is a material variance, so that proof of the material facts charged in the second indictment would not have been admissible to secure a conviction under the first. 12 Cyc. 266; 17 A. & E. Enc. of Law, 2 ed. 598; State v. Revels; 44 N. C. 200.
While holding that there is no constitutional barrier against further prosecution, we are constrained upon the other grounds discussed to reverse and remand the cause, with directions to quash the indictment, and it is so ordered.