Territory v. Armijo.

• Decision Date: 04 September 1894
• Citation: 37 P. 1117,7 N.M. 571
• Parties: TERRITORYv.ARMIJO.
• Court: New Mexico Supreme Court

7 N.M. 571

37 P. 1117

TERRITORY

v.ARMIJO.

Supreme Court of the Territory of New Mexico.

Sept. 4, 1894.

Appeal from district court, Bernalillo county; before Justice Collier.

Vicente Armijo was convicted of assault with a deadly weapon, and appeals. Reversed.

The disqualifications of petit jurors cannot be raised for the first time on motion for a new trial, unless such disqualifications were prejudicial to defendant.

H. B. Fergusson, for appellant, E. L.

Bartlett, Sol. Gen., for the Territory.

LAUGHLIN, J.

The defendant, Vicente Armijo, was indicted by the grand jury at the October, 1893, term of the district court of the second judicial district for Bernalillo county, charged with assault with a deadly weapon upon one Jose H. Gurule, which indictment is in words and figures, viz.: “Territory of New Mexico, County of Bernalillo-ss.: In the District Court, at the October Term, A. D. 1893. The grand jury of the territory of New Mexico, taken from the body of the good and lawful men of Bernalillo county, in the territory of New Mexico, duly selected, impaneled, sworn, and charged at the October term, A. D. 1893, to inquire and due presentment make of all offenses against the laws of the territory of New Mexico committed within said county of Bernalillo, upon their oaths do present that Vicente Armijo, late of the county of Bernalillo aforesaid, on or about the 3d day of May, A. D. 1893, at the county of Bernalillo, territory of New Mexico, did, with a certain deadly weapon, to wit, a knife, feloniously make an assault on one Jose H. Gurule, and him, the said Jose H. Gurule, did then and there cut, stab , and wound, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the territory of New Mexico.” At the March term, A. D. 1894, of the said district court, the defendant was arraigned, and entered his plea of not guilty as charged. A trial in due form was had, and the jury returned a verdict of guilty, as charged in the indictment. On the incoming of the verdict, the defendant filed a motion for a new trial, which was by the court denied. The defendant then filed a motion in arrest of judgment, which is in words and figures to wit: “Now comes the defendant, by his attorney, and moves the court to arrest the judgment, for reasons apparent upon the record of said cause, to wit: (1) It appears that the grand jury which returned the indictment in said cause was not a legally constituted body, and not competent in law to find the said indictment. (2) A large number, to wit, five, of the grand jurors aforesaid, were by law disqualified and incompetent to serve as members of the said grand jury; and, by reason thereof, the said indictment was and is insufficient and void to charge the defendant with the said alleged offense. (3) The indictment in said cause was and is insufficient in law, and the same does not sufficiently charge (and) the crime and offense. (4) The petit jury in said cause was not regularly constituted and was disqualified by law to hear and determine said alleged offense. (5) And for divers other errors and defects appearing upon the record of said court in said cause,”-which motion by the court was overruled and denied; and the court pronounced judgment on the defendant, and fixed his punishment at two years' confinement in the New Mexico penitentiary, from all of which rulings and judgment of the court the defendant appealed to this court, and assigned error as follows, to wit: “(1) The court erred in refusing to sustain the motion in arrest of judgment, because the indictment is on its face void. (2) The court erred in refusing to grant a new trial, and also to sustain the motion in arrest of judgment, because the grand jury was illegally constituted. (3) The court erred in commenting on the weight of the evidence of the defendant, Vicente Armijo. (4) The court erred in refusing to instruct the jury to find the defendant not guilty at the conclusion of the testimony.”

It is not necessary to the disposition of this case to consider anything but the errors assigned in the motion in arrest of judgment. The first and second grounds set out in the motion refer to the qualifications of members of the grand jury who found and returned the indictment; and these objections come too late. If any objections to the legal qualifications of members of the grand jury existed, such objections should have been raised and presented in proper form to the court before the defendant entered his plea of not guilty to the merits. This proposition has been so often decided by this court that it is unnecessary here to refer to authorities on the subject. The fourth ground in the motion refers to some disqualification of members of the petit jury who found and returned the verdict of guilty. The disqualifications of petit jurors must be taken advantage of before the incoming of the verdict by challenge, and cannot be raised for the first time on a motion for a new trial or in arrest of judgment, as any disqualification of petit jurors is cured by verdict, unless it shall be made to appear affirmatively that any such disqualifications resulted to the prejudice of the defendant; and there is nothing in the record disclosing such a state of facts. The fifth ground in the motion is in terms general, and does not point out any specific or sufficient cause for review. This leaves for consideration only the third ground, and this goes to the sufficiency of the allegations as charged in the indictment, and it will be considered as it appears in the record.

1. The pleader evidently attempted to frame this indictmen t under Laws 1887, p. 55, c. 30, known as the “Deadly Weapon Act;” and it is insufficient and defective, because the offense charged does not come within the scope of any section...