State v. Jordi
| Citation | 174 P. 204,24 N.M. 426 |
| Decision Date | 05 August 1918 |
| Docket Number | No. 2127.,2127. |
| Parties | STATEv.JORDI. |
| Court | Supreme Court of New Mexico |
Syllabus by the Court.
Officers and members of the mounted police force appointed under authority of chapter 9, Laws 1905, chapter 83, Laws 1912, are authorized to carry arms, and are not subject to the provisions of the deadly weapon act while commissioned as officers or men of such force.
Appeal from District Court, San Miguel County; Leahy, Judge.
Jose Jordi, in the district court of San Miguel county, N. M., was indicted on the charge of unlawfully carrying a deadly weapon, to wit, a pistol, about the town of Las Vegas. A jury was waived, and the case submitted to the district court upon the following agreed statement of facts:
“That on the 3d day of January, A. D. 1917, the defendant held a commission as mounted policeman as provided for in the statutes of New Mexico; that on said date he arrested one Felipe M. Chacon and turned said Chacon over to the sheriff of San Miguel county, after making such arrest; that at the time of making such arrest the said Jordi had no warrant in his possession for the arrest of said Chacon, nor did he have any other criminal warrant in his possession at said time.
“That at the time of making said arrest the defendant, Jordi, was carrying a deadly weapon, to wit, a pistol, and that said arrest was made within the limits of the settlement of the town of Las Vegas, in the county of San Miguel, of the state of New Mexico.
“The defendant claims that he had a right to carry said deadly weapon under the statutes of New Mexico governing the mounted police force.”
The trial court found the defendant guilty and assessed against him a fine of $50 and costs of suit, from which judgment this appeal was prayed. Reversed and remanded, with instructions.
Officers and members of the mounted police force appointed under authority of chapter 9, Laws 1905, chapter 83, Laws 1912, are authorized to carry arms, and are not subject to the provisions of the deadly weapon act while commissioned as officers or men of such force.
Elmer E. Veeder, of Las Vegas, for appellant.
H. L. Patton, Atty. Gen., for the State.
The sole question involved in this appeal is whether a member of the mounted police force of this state has authority at all times to carry arms. The mounted police force was created by chapter 9, Laws 1905, appearing as section 5411 et seq., Code 1915, authorizing the Governor of the then territory to muster into the service, for the protection of the frontier of the territory and for the preservation of the peace and the capture of persons charged with crime, a company of New Mexico mounted police, to consist of one captain, one lieutenant, one sergeant, and not more than eight privates. Section 3 of the act in question provided that the men should be furnished by the territory with the most effective and approved breech-loading rifles. Section 4 of the act provided that each member of the company should furnish himself with a suitable six-shooting pistol (army size), and all necessary accoutrements and camp equipage. By section 11 of the act it was provided that all members of such company shall have full power to make arrests of any criminals in any part of the territory and upon arrest of such criminals shall deliver the same over to the peace officer of the county where the crime is committed. By an amendment to this act, section 13 of chapter 83, Laws 1912 (section 5412, Code 1915), the Governor was authorized whenever in his judgment he deemed it necessary to appoint additional members of the force, while the necessity for such additional officers existed. Subsequent to the amendment referred to, the Legislature discontinued appropriations for the mounted police force, with the result that there has been no paid force operating under the authority of the law in question until recently, when, through the action of the State Council of Defense, the force was re-established.
No authority of any value in the consideration of this case has been cited for our consideration, and it appears to be solely a question of construction of our statutes upon the subject. It is apparent that, at the time of the passage of the first act at the session in 1905, the mounted police force was to be stationed “at Santa Fé or other points in the state to be designated by the Governor and shall at all times be under his direction,” indicating that the force was a permanent force to be on active and constant duty with “full power to make arrest of criminals in any part of the state.” It was directed that they be armed with rifles to be furnished by the state and a six-shooting pistol to be furnished by themselves. There is certainly an implied power conferred by this statute to carry these arms, else the Legislature must be held to have been speaking idly or foolishly. To hold that these officers are subject to the provisions of the deadly weapon statute (section 1701 et seq., Code 1915) prohibiting any person carrying a deadly weapon in or about the settlements of this state, except as provided for by the act, would be, to some extent at least, to render the mounted police force act ineffective and useless, subjecting every member of that force to prosecution for violation of the deadly weapon act. The argument that because the deadly weapon act does not except the mounted police officers is ineffective, because at the time the deadly weapon act was passed the mounted police force was not provided for and the Legislature in the act last enacted, that providing for the mounted police force, must be held to intend that other statutes in conflict therewith be repealed to the extent of the conflict, and implied authority to carry arms which we see in the mounted police force act must necessarily be held to be a modification of the deadly weapon act.
We also see little or no importance in the argument that the mounted police force has ceased to be a permanent force and is now consisting of special or temporary officers only, appointed at the pleasure of the Governor. We must construe the mounted police force act from the standpoint of what was intended at the time of its adoption. Any change in conditions subsequent thereto is of no moment so far as this court is concerned. It is the intent of the Legislature at the time of the passage of the act which we must strive to determine. If that intent is no longer applicable to present conditions, it is a matter for the Legislature to correct and not for this court to consider.
It is urged that the case of William H. Guyse v. Territory, 7 N. M. 228, 34 Pac. 295, is an authority in point. That case was based on an earlier statute now appearing as section 1709, Code 1915, and the court held that the act did not authorize sheriffs and other officers to carry deadly weapons any more than private citizens. Subsequent to the opinion of the territorial Supreme Court in that case, an act was passed now appearing as section...
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