U.S. v. Cook

• Decision Date: 01 July 1909
• Citation: 103 P. 305,15 N.M. 124,1909 -NMSC- 013
• Parties: UNITED STATES v. COOK.
• Court: New Mexico Supreme Court

103 P. 305

15 N.M. 124, 1909 -NMSC- 013

UNITED STATES v. COOK.

Supreme Court of New Mexico

July 1, 1909

Appeal from Fifth Judicial District Court; before Justice Pope.

M. E Cook was convicted of adultery, and he appeals. Affirmed.

Gatewood & Graves, for appellant.

D. J Leahy, U.S. Atty., and Stephen B. Davis, Jr., Asst. U.S Atty.

MILLS C.J.

Appellant herein, M. E. Cook, was found guilty by a jury, on the 25th day of April, A. D. 1908, of having committed the crime of adultery. Motion for a new trial was subsequently filed argued, and overruled by the trial court, and an appeal was taken to this court.

The case is brought to this court on a skeleton record. None of the evidence introduced at the trial is before us, and consequently it will not be considered by us in arriving at our decision. The court has often held that no alleged errors, unless they are jurisdictional, will be considered, except those which are set out in the motion for a new trial (Territory v. Chavez, 9 N. M. 282, 50 P. 324; Territory v. Archibeque et al., 9 N. M. 403, 54 P. 758), and as the motion for a new trial filed in this case does not include any exceptions to the instructions given by the court to the jury, the issues in the cause are reduced to a narrow compass.

The first two grounds set up in the motion for a new trial are that the court erred in allowing the jury to separate, without the consent of the defendant, for the night of April 24, 1908, and in the error assigned marked "2A," the appellant charges, on information and belief, that while separated some of the jury heard the case and the facts and merits of the case discussed by citizens and witnesses, whereby the minds of the jurymen were influenced and prejudiced against the defendant, and that by reason thereof he was deprived of a fair and impartial trial. The United States does not deny that the jury separated for the night of April 24th, but contends that such separation is not error unless the appellant shows that he was prejudiced thereby, and in the entire record before us there is not one word, except the affidavit of M. E. Cook, the appellant, herein, which affidavit is made on information and belief, that the jury, while separated, "mingled freely with the citizens of Roswell and the witnesses for and on behalf of the United States, and heard the case and facts and the merits thereof discussed freely by said citizens and witnesses, whereby the minds of said jury were influenced and prejudiced against the defendant," and he was thereby deprived of a fair trial. The statement as to what the jury did during their separation rests on nothing more substantial than the allegations, made on information and belief by the appellant in his motion for a new trial. The name of no person with whom any of the jury conversed during their separation is given, nor is the substance of their conversation set out, or the hour or place of such conversation, if any. The error assigned, numbered "2A," is too general, and rests on no solid foundation, and will not be further considered by us. If a verdict could be set aside on the unsupported affidavit of a defendant, made on information and belief, our penitentiaries would soon be without occupants, and might as well be torn down, or put to other uses.

The elimination of this part of the motion for a new trial brings us to the simple proposition as to whether or not it is reversible error for the court to allow a jury to separate during the progress of a criminal trial, but before the case is submitted to them; nothing prejudicial to the defendant being shown. This point has already been passed upon by this court, so it will be unnecessary to go outside of the territory for authorities. The first case in which this point was presented to our Supreme Court was in the case of Territory v. Nichols, 3 N. M. 76, 2 P. 78. This case is not exactly parallel with the one at bar, for in the Nichols Case the jury separated without the consent of the court after they had agreed upon a verdict, but before they had returned it into court. In that case the court says "The second alleged error is upon the refusal of the court below to set aside the verdict of the jury for the reason that, after being sent out to deliberate upon their verdict, the jury, without the permission of the court, separated, and mingled with the people, and afterwards returned a sealed verdict. This was a grave irregularity, and merited severe reprehension from the court. It is probable that the jurors themselves may not have been aware of the serious consequences which might flow from the act of separation, but it would seem almost impossible that the officers having them in charge could have furnished any good excuse for their neglect of duty. They were sworn to keep the jurors together, and should have been held to strict responsibility for their failure to do so. We do not think however, that the court below erred in refusing to set the verdict aside in the case at bar for the reasons assigned," In this case a number of authorities are cited in support of the ruling of our court, but we do not think it necessary to quote from them. The case of Territory v. Chenoweith, 3 N. M. 318, 5 P. 533, is directly in point. In that case the court says: "It is further claimed as error in this case that, after the jury were impaneled, and during the day upon which the case was tried, they were permitted to separate during the noon recess, without being accompanied by a sworn officer. It appears that, after the evidence was in, and before the arguments...