Borrego v. Territory.

• Decision Date: 01 September 1896
• Parties: BORREGO et al.v.TERRITORY.
• Court: New Mexico Supreme Court

8 N.M. 446

46 P. 349

BORREGO et al.

v.TERRITORY.

Supreme Court of the Territory of New Mexico.

Sept. 1, 1896.

Error to First judicial district court, Santa Fé county; before Justice H. B. Hamilton.

Francisco Gonzales y Borrego and others were convicted of murder, and bring error. The territory moves to quash the writ. Motion denied. Judgment affirmed.

The refusal, on such trial, to permit defendants, who were at a certain place at a certain time prior to the murder, to introduce testimony to show that the persons, who testified that they saw defendants at another place at that time, were not there themselves at that time, was a matter within the sound discretion of the court.

Catron & Spiess, for plaintiffs in error.

John P. Victory, Sol. Gen., H. L. Warren, and J. H. Crist, for the Territory.

SMITH, C. J.

This case was brought up to this court from the district court of the county of Santa Fé 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. The organic act authorizes the review of the judgment by writ of error. This motion presents the question: Are the judgments of the district courts of the territory of New Mexico, in criminal cases, reviewable in the supreme court by writ of error or appeal? The organic act vests the supreme and district courts with common law and chancery jurisdiction (Rev. St. U. S. § 1868), 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” (Id. § 1869). 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. Inhabitants of Seton, 7 Term R. 373; Rex v. Justices of West Riding of Yorkshire, Id. 467; Rex v. Carlile, 2 Barn. & Adol. 971; State v. Sheppard, 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. Earbery, Fortes. 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. 1 Bish. New Cr. Proc. § 1362. 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 courts 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, Comp. Laws, which provides: “The clerk of the supreme court shall issue a writ of error to bring into the supreme court any cause finally adjudged or determined in any of the district courts, upon a præcipe 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 government 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 guarantied 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 cannot be contended that congress has, in one and the same form of expression, secured to the supreme court a certain jurisdiction, and to the 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 has given it has not authorized the territorial legislature to take away by regulations. The allowance of the writ of the 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 cannot 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, 2194, Comp. Laws. In providing for appeals from final judgments in criminal cases, it has merely given a concurrent remedy. In U. S. v. Gilson, 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 cases 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 have 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 they 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 exceptions, 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 and meaning 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 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.”

2. 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. Comp. Laws, § 2484. 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...