15 N.M. 124 | N.M. | 1909
OPINION OP TI-IE COURT.
Appellant herein, M.' E. Cook, was found guilty by a jury, on the 25th day of April, A. D. 1908, of having committed the crime of adultery. Motion for a new trial was subsequently filed, argued and overruled by the trial court, and an appeal was taken to this court.
The case is brought to this court on a skeleton record. None of the evidence introduced at the trial is before us, and consequently it will not be considered by us in arriving at our decision.
The first two grounds set up in the motion for a new trial, are that the court erred in allowing the jury to separate without the consent of the defendant, for the night of April 24th, 1908, and in the error assigned marked 2-A, the appellant charges on information and belief, that while separated, some of the jury heard the case and the facts and merits of the case discussed by citizens and witnesses, whereby the minds of the jurymen were influenced and prejudiced against the defendant, and that by reason thereof he was deprived of a fair and impartial trial.
The elimination of this part of the motion for a new trial brings us to the simple proposition as to whether or not it is reversible error for the court to allow a jury to separate during the progress of a criminal trial, but before the case is submitted to them; nothing prejudicial to the defendant being shown. This point has already been passed upon by this court, so it will-be unnecessary to go outside of the Territory for authorities. The first case ifi which this point was presented to our Supreme Court was in the case of Territory v. Nichols, 3 N. M, 76, 2 Pac. 78. This case is not exactly parallel with the one at bar, for in the Nichols case the jury separated without the consent of the court after they had agreed upon a verdict, but before they had returned it into court. In that case the court says: “The second alleged error is upon the refusal of the court below to set aside the verdict of the jury for the reason that, after being sent out to deliberate upon their verdict, the jury, without the permission of the court, separated, and mingled with the people, and afterwards returned a sealed verdict. This was a grave irregularity, and merited severe reprehension from the court. It is probable that the jurors themselves may not have been aware of the serious consequences which might flow from the act of separation, but it would seem almost impossible that the officers having them in charge could have furnished any good excuse for their neglect of duty. They were sworn to keep the jurors together, and should have been held to strict responsibility for their failure to do so. We do- not think, however, that the court below erred in refusing to set the verdict aside in the case at bar for the reasons assigned.” In this -case a number of authorities are cited in support of the ruling of our court, but we do not think it necessary to quote from them. The case of Territory v. Chenoweth, 3 N. M. 318, 5 Pac. 533, is directly in point. In that case the court says: “It is further claimed as error in this case that, after the jury were impaneled, and during the day upon which the case was tried, they were permitted to separate during the noon recess, without being accompanied by a sworn officer. It appears that, after the evidence was in, and before the arguments of counsel1 and instructions of the court, the jurors were permitted, by leave of the court, and after being carefully admonished to permit no one to address them on the subject of the trial, to separate during the dinner hour. This was not error. It is a rule of practice universally adopted, both in this country and in England. In capital cases there is, in some of the states, either a statute or a rule of practice requiring the' jury _ to be .kept together. But the -well-satisfied doctrine in- substantially all the states of the Union, as well as in England, now is that, even in felony, it is in the sound discretion of the court as to whether the jury, during the trial, may be permitted to separate. It would have been different had the jury been permitted to separate without leave •of the court, after the case had been given to them in ■charge, and before the rendition of their verdict. But, ■even in such case, before a verdict will be set aside, it must be shown that the prisoner was in some way prejudiced by the separation.” These cases are controlling upon us and so far as we are aware there are no decisions by our Supreme Court holding the contrary doctrine. It is true that in the case of U. S. v. Swan, 7 N. M. 306, and in the case of U. S. v. Spencer, 8 N. M. 667, reversáis were granted on appeal, but in the Swan case, the separation was after the case had been argued and submitted, and it was shown that some of the jurors associated and conversed with citizens and were exposed to unfair influence, and that prejudice to the defendant might have resulted, while in the Spencer case, certain jurors separated from the others, without permission of the court, and spent some time in saloons, drinking, and took a bottle of whiskey back with them, to the jury room. In these cases 'the reversals were not on the mere ground of separation of the jurors, but rather on their misconduct while separated.
The alleged .error marked in the motion for a new trial, 2-B, is only sworn to by the appellant on information and belief. This alleged error is in substance that the jury found Cook guilty on the evidence of one, Mrs. Mary J. Estes, that he (Cook), stole a pet hen of hers on the night of the alleged adultery, and that one of the jurymen who tried the case said after the verdict had' been returned and the jury discharged, in the presence of one Fred Hunt, that if Cook had not stolen the chicken, the jury would not have convicted him of adultery. Appellant asked for time to get the affidavit of Hunt. The motion for a new trial was filed April 30th, 1908, while the same was not overruled until May 8th, 1908.
The other grounds set up in the motion for a new trial are that the conviction was based on the testimony of Mrs. Mary J. Estes, and that her testimony was false.
The above cover all of the alleged errors set out in the motion for a new trial, but in their briefs both the appellant and appellee refer to instruction No. 6 given by the court. This instruction in substance is, that it was not necessary for both parties to the alleged adultery, to be married, and that while the indictment charges the appellant Cook, to be a married man, that it was not necessary for the United States to prove that fact, provided that it has proved that the woman Minnie G-. Estes, was at the time of the alleged act, a married woman, and that her husband was some other person than the defendant, Cook.
There being no error apparent in the record, the judgment of the court below is affirmed; and it is so ordered.