Ex Parte De Vore.

• Citation: 136 P. 47,18 N.M. 246
• Court: New Mexico Supreme Court
• Decision Date: 14 October 1913
• Parties: EX PARTE DE VORE.

18 N.M. 246

136 P. 47

EX PARTE DE VORE.

Supreme Court of New Mexico.

Oct. 14, 1913.

Syllabus by the Court.

Common-law crimes are recognized and punished in New Mexico, by virtue of section 3422, Comp. Laws 1897, which provides, “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.”

The word “recognize,” used in the above section, is given various significations by the lexicographers. Webster, among other definitions, defines its meaning to be, “to avow knowledge of”; Century Dictionary, “to know again.” Webster defines the meaning of the verb “know” to be, among others given, “to recognize.” In the above section the word “recognized” was used in the sense of “known,” and as used was intended to adopt the common law of crimes, as known in the United States and the several states of the Union, which was the common law, or lex non scripta of England, as it existed at the time of the Independence of the United States, supplemented and modified by such British statutes as were of a general nature and not local to that kingdom.

Penal statutes are to be strictly construed, but are not to be subjected to a strained or unnatural construction in order to work exemptions from their penalties. Such statutes are to be interpreted by the aid of the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the legislative intention.

Where a statute does not specifically repeal or cover the whole ground occupied by the common law, it repeals it only when, and so far as, directly and irreconcilably opposed in terms.

Where a party is confined in prison, the legality of the imprisonment does not rest upon the mittimus, but upon the judgment, and a prisoner who has been legally and properly sentenced to prison cannot obtain his discharge simply because there is an imperfection, or error, in the mittimus.

While common-law crimes are recognized and punished in this state, common-law penalties are not inflicted, but the punishment therefor is prescribed by section 1054, Comp. Laws 1897.

Where petitioner, in his application for the writ of habeas corpus, sets forth certain grounds for his discharge, which his counsel fail to discuss in their brief, or upon the argument of the case, the court assume that such points are waived, and will not consider the same.

Additional Syllabus by Editorial Staff.

Where the language of a statute is doubtful, or an adherence to the strict letter would lead to injustice, absurdity, or contradiction, the statute will be construed according to its spirit or reason, even though this necessitates the rejection of words and substitution of others.

In construing a statute which was translated into Spanish prior to its enactment, where the Legislature was composed in large part of members speaking Spanish almost exclusively, it is proper to consult the Spanish translation to ascertain the legislative intent.

A prison breach by a person confined on a felony charge is a felony under the common law.

As used in Comp. Laws 1897, § 1054, providing the punishment for a criminal convicted of a felony for which no punishment is “prescribed by law,” the phrase quoted means prescribed by statute law, not by common law.

Original application by H. C. De Vore for writ of habeas corpus. Writ issued, and hearing had on return thereto. Writ quashed, and prisoner remanded.

Penal statutes are to be strictly construed, but are not to be subjected to a strained or unnatural construction in order to work exemptions from their penalties. Such statutes are to be interpreted by the aid of the ordinary rules for the construction of statutes, and with the cardinal object of ascertaining the legislative intention.

Renehan & Wright, of Santa Fé, for petitioner.

Frank W. Clancy, Atty. Gen., for the State.

ROBERTS, C. J.

This is an original application for the writ of habeas corpus by H. C. De Vore, who pleaded guilty to an indictment returned against him by the grand jury of Otero county, on the 29th day of October, 1912, charging him with the offense of “prison breach,” upon which plea of guilty he was sentenced by the district court to serve a term in the state penitentiary of not less than 10, nor more than 12 years. He bases his right to the writ upon the following grounds: (1) Prison breach is not a statutory offense in New Mexico, and the common law of crimes is not in force in this state; (2) admitting the common law of crimes to be in force in New Mexico, the punishment inflicted was not authorized under such law; (3) the sentence imposed is violative of section 13, art. 2, of the state Constitution.

[1] 1. It is admitted by the Attorney General that there is no statute in New Mexico defining the crime of prison breach, and providing punishment therefor. Counsel for petitioner and the state agree that petitioner was indicted and sentenced for a common-law offense, and it necessarily follows that if the common law of crimes is not in force in this state, the petitioner is unlawfully restrained of his liberty, as the district court would have no jurisdiction of such an offense. The initial question, therefore, to be determined is whether or not the common law of crimes is in force in this state. It is conceded that if such law was in force prior to the adoption of the Constitution, it was carried forward by the Constitution as the law of the state.

New Mexico was acquired by the United States from Mexico by the Treaty of Guadalupe Hidalgo, February 2, 1848. The common law was not recognized by Mexico, and had no place in the jurisprudence of New Mexico prior to its cession to the United States. Consequently it would require a specific enactment, by Congress, or the territorial Legislature, to adopt the common law. It is not claimed that Congress so legislated, but the Attorney General does contend that the territorial Legislature, in 1851, by section 18 of an act entitled “An act, regulating the practice in the district and Supreme Courts of the territory of New Mexico,” made the common law of England the rule of practice and decision in criminal cases. The section, which is incorporated into C. L. 1897 as section 3422, reads as follows: “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.” On behalf of the petitioner it is urged that this statute was ineffectual to adopt the common law as a part of our criminal jurisprudence, because, in the United States courts common-law crimes are and were not punishable, and such law is in such courts merely a source of definition, and, further, that at the time of the enactment of the above section the common law of crimes was not universally recognized by the several states of the Union. As remarkable as it may appear, the effect of the statute has never before been presented squarely to the Supreme Court of the territory or state.

In the case of Territory v. Weller, 2 N. M. 470, the section was referred to by Chief Justice Axtell, but its scope was not discussed. In the case of Borrego v. Territory, 8 N. M. 446, 46 Pac. 349, the court quoted the section, and said: “By providing that the common law, as recognized by the United States and the several states of the Union, should be the rule of practice and decision in the territory, the Legislature has vested the Supreme Court with jurisdiction to review judgments in criminal cases by writ of error.”

And later, in the case of Territory v. Herrera, 11 N. M. 129, 66 Pac. 523, the territorial Supreme Court again referred to this section, and held that under its provisions the common-law rule, which it evidently considered to have been adopted thereby, required the court, in a capital case, before pronouncing sentence upon the defendant, to ask him “if he had anything to say why sentence should not be pronounced,” in the absence of a statute dispensing therewith.

In the case of Territory v. Montoya, decided by the state Supreme Court, and reported in 125 Pac. 622, Mr. Justice Hanna, speaking for the court, says: “The common law of crimes is in force in New Mexico except where it may have been repealed or modified by statute.” But it will be noted that the question was not directly involved in the case, and therefore the language may be considered obiter dictum.

It is interesting to note that in each of the above cases the court seemingly treated the above statute as having adopted the common law of crimes in New Mexico, without question. The cases cannot be considered controlling authority, however, because the question was not directly involved, as in none of the cases was the defendant being prosecuted for a common-law crime. It is therefore the duty of this court to determine, as an original proposition, the question of the effect of the statute.

[2] Counsel for petitioner admits that it was the intention of the Legislature, by the adoption of the section in question, to incorporate into the territorial law common-law crimes, but insists that the language employed will not permit the court to give effect to such intention. If it be true that the Legislature so intended, and certainly no other purpose is apparent, then it is the duty of the court to give effect to such intention, if it can be done without unreasonably perverting the language employed. The difficulty is occasioned by the words used, viz., “recognized by,” for the United States has never recognized the common law of England, if by that term is meant “adopted” or “applied” as a rule of decision. As stated, there is no common law of the United States; the common law is merely a source of definition. 8 Cyc. 386; U. S. v. Palmer, 3 Wheat. 610, 4 L. Ed. 471; U. S. v. Hudson, 7 Cranch, 32, 3 L. Ed. 259; U. S. v. Britton, 108 U. S. 199, 2 Sup. Ct. 531, 27 L. Ed. 698.

[3] Prior to 1848 New Mexico, as heretofore observed,...