Ex parte Lujan

• Decision Date: 02 December 1913
• Citation: 137 P. 587,18 N.M. 310,1913 -NMSC- 081
• Parties: EX PARTE LUJAN.
• Court: New Mexico Supreme Court

137 P. 587

18 N.M. 310, 1913 -NMSC- 081

EX PARTE LUJAN.

Supreme Court of New Mexico

December 2, 1913

Syllabus by the Court.

Where a district court is without power to suspend the execution of the judgment in a criminal cause, or to withhold the commitment, an order so made, attempting to do so, is null and void, and without force and effect, and amounts to surplusage.

Where a defendant, duly sentenced by a district court to serve a definite term in the state penitentiary, is permitted to go and remain at large under a void order of the court, he may be taken into custody and compelled to serve the term fixed in the judgment, even though a longer period of time than that for which he was sentenced has elapsed since the sentence was imposed.

Original application for writ of habeas corpus by Juan Lujan. Petitioner remanded, and writ discharged.

On September 25, 1908, Juan Lujan, the petitioner herein, upon a plea of guilty to an indictment charging him with the crime of assault with a deadly weapon, was by the district court of Eddy county sentenced to serve a term of imprisonment of two years in the territorial penitentiary at Santa Fé, N.M. The judgment of the court was in the following words, viz "Now comes the territory, by her district attorney, and comes the defendant in his own proper person, in custody, and the sheriff, and the defendant, being asked if he has anything to say why the sentence of the court should not be passed against him, nothing says, and the court, pursuant to a plea of guilty heretofore entered herein, assessed his punishment at imprisonment in the territorial penitentiary at hard labor for the full period of two years, and that he pay the cost of this prosecution. It is therefore considered and adjudged by the court that the defendant, Juan Lujan, be imprisoned in the territorial penitentiary situate at Santa Fé, New Mexico, for the full term of two years, and that he pay the costs of this prosecution, to be taxed, and that execution issue therefor, and the sheriff of Eddy county is hereby ordered to deliver the said Juan Lujan to the superintendent or warden of the said penitentiary, and that the said superintendent or warden of the said penitentiary confine the said Juan Lujan in said penitentiary for the full term of two years from the date of the confinement hereunder and until said costs are discharged by operation of law, and that commitment issue therefor. And it is further ordered that, if the defendant shall forthwith remove himself from the territory of New Mexico, the commitment hereunder shall not issue so long as he shall remain absent from the said territory."

Askren & Gilbert, of Roswell, for petitioner.

Ira L Grimshaw, Asst. Atty. Gen., for the State.

ROBERTS C.J. (after stating the facts as above).

The power to suspend the execution of a sentence in a felony case is conferred upon the district courts of the state by section 1, c. 32, S. L. 1909. The order of suspension in this case however, was made prior to the enactment of the statute, and petitioner's application for his release from the custody of the warden of the state penitentiary is predicated upon the assumption that the district court, when it sentenced petitioner upon his plea of guilty, in the absence of a statute so authorizing, had not the power to provide "that, if the defendant shall forthwith remove himself from the territory of New Mexico, the commitment hereunder shall not issue so long as he shall remain absent from the territory of New Mexico." If it be conceded that the court had the power to make the order suspending the execution of the judgment, it would follow necessarily that, upon...