Territory v. Herrera.
| Decision Date | 10 February 1931 |
| Citation | 11 N.M. 129,66 P. 523 |
| Parties | TERRITORYv.HERRERA. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
1. In a criminal case, where, under one caption, the record recites, “Come again the parties in the above-entitled cause, and come also the jury, *** hear the remainder of the evidence, *** and after due deliberation return into court their verdict, which is: *** And comes now the defendant in his own proper person, *** añd gives notice of motion for new trial,”-it conclusively and affirmatively appears from the record that defendant was present in court when the verdict was rendered by the jury.
2. In such a case where, by a stipulated record, settled and certified as stipulated, and not purporting to be a full and complete transcript of record, it is not made affirmatively to appear either that defendant was present in court at the time an order was made setting said case for trial, or that a legal order of continuance of said case was entered, this court will not presume that from a full and complete transcript of the record it would not affirmatively appear either that defendant was present at the time such order setting the case for trial was made, or that a proper order of continuance was entered. The true doctrine, on the contrary, being that in courts of general jurisdiction all the details of the trial are presumed to be regular and sufficient to sustain the judgment until the contrary is shown.
3. In a capital case it is deemed essential at the common law that defendant be asked by the court before judgment is passed whether he has anything to say why the sentence of the court should not be pronounced upon him, and where it does not affirmatively appear from the certified transcript of a record, which purports to set forth the judgment and sentence of the court, that such inquiry was made of the defendant at such time the judgment will be reversed; but a reversal on the ground of the failure of the trial court to make this inquiry only affects the sentence and judgment, and leaves the verdict and all precedent proceedings in full force and effect.
Appeal from district court, San Miguel county; before Chief Justice William J. Mills and Justice John R. McFie.
Nicanor Herrera was convicted of murder, and appealed. Remanded, with directions.
The appellant, Nicanor Herrera, was, on the 26th day of November, 1897, in the district court of the Fourth judicial district of the territory of New Mexico, within and for the county of San Miguel, indicted for murder. On November 30, 1897, appellant was arraigned, and pleaded not guilty, when it was ordered by the court that the case be set for trial on December 6, 1897. On January 4, 1898, appellant applied to be admitted to bail, which application was granted, and his bond fixed at $5,000, which was given and approved on January 16, 1898. At a regular term of said court on the 23d day of May, 1899, the case was reset for trial on May 29th, said order reciting as follows (after caption): “It is ordered by the court that this cause be, and the same hereby is, reset for trial May 29, A. D. 1899.” On May 29th a jury was impaneled, and on June 3, 1899, verdict was rendered, said record reciting (after caption): Motion for a new trial was filed on June 22d, and on the following day said motion was overruled, and the appellant sentenced, said record reciting (after caption): The transcript of the record was filed in this court on December 23, 1899, and included a bill of exceptions, which at a former day was stricken from the record, and counsel for appellant now abandon all errors assigned except those to be found in the record proper, apparent on its face. The objections to the record, as presented by counsel for appellant, are: (1) That the court erred in receiving the verdict in the absence of the defendant; (2) that the record is fatally defective, because, after the order of November 30, 1897, setting the cause for trial on December 6, 1897, the record does not show that the cause was continued to a time during that term, or that it was continued by the court on the 6th day of December, or on any other day, during the November term 1897, to the following or any other term, and the record fails to show that defendant; (3) that the record is fatally defective, because it fails to show that defendant was present, either in person or by attorney, when the indictment was set for trial by the court in its order of May 23, 1899; (4) that the court erred in pronouncing and making the alleged judgment and sentence of June 23, 1899, of imprisonment, because the defendant was not asked by the court before sentence if the had anything to say why sentence should not be pronounced opon him; (5) that the court was without authority, and erred in pronouncing the alleged judgment and sentence herein on June 23, 1899, and the same is no legal judgment or sentence, because they were pronounced and made in the absence of the defendant; and (6) that no legal or sufficient judgment in legal form has ever been pronounced or entered against defendant on the verdict of the jury herein adjudging the defendant's guilt.
A reversal of a judgment, because of failure of the trial court to ask accused if he had anything to say why sentence should not be pronounced on him, only affects the sentence and judgment, and leaves the verdict and all precedent proceedings in full force.
George P. Money and Veeder & Veeder, for appellant.
Edward L. Bartlett, Sol. Gen., for the Territory.
CRUMPACKER, J. (after stating the facts).
As to the first objection urged, we deem it sufficient to say that a reference...
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