United States v. De Amador.

• Decision Date: 13 August 1891
• Citation: 6 N.M. 173,27 P. 488
• Parties: UNITED STATESv.DE AMADOR.
• Court: New Mexico Supreme Court

6 N.M. 173

27 P. 488

UNITED STATES

v.DE AMADOR.

Supreme Court of the Territory of New Mexico.

Aug. 13, 1891.

Appeal from third district court; JOHN R. McFIE, Judge.

Indictment for perjury by the United States of America against Urbana Duran de Amador. The defendant was convicted, and appeals. Affirmed.

The act of February 26, 1889, Sess.Laws, 1889, p. 227, providing for the impaneling of grand and petit juries to investigate and try causes on the part of the United States, is not special legislation. It is the same as contemplated by the organic act, and the same as has been in operation since the organization of the territory. Nor is the special legislation so far as the district is concerned, since it provides the same kind and class of juries for every district in the territory.

A. B. Fall, for appellant.

Eugene A. Fiske, U. S. Atty.

LEE, J.

This was an action by indictment, returned in September, 1890, by the grand jury of the third judicial district, charging the defendant (appellant) with perjury in having sworn falsely in the case of the United States against Urbana Duran de Amador in said court on a charge of adultery. The case came on for trial on the 23d day of September, 1890, and the defendant was convicted, and the case is brought to this court by appeal. The counsel for the appellant in his brief says that in the record there is manifest error, as shown by the transcript; that the indictment is insufficient, and is an absolute nullity, in that it was not found and presented by a duly-constituted, legal, constitutional, and properly selected and organized grand jury; that the petit jury trying the case was not composed of 12 good and lawful men, as contemplated by the laws of the United States, and of this territory; that the court erred in refusing instructions asked by the defendant, and in overruling her motion for new trial. The record, however, fails to show that there was any exception taken or presented upon either of the assignments made here; nor does the record anywhere show why or by what means the grand jury that found the indictment, and the petit jury that tried the case, were not lawful and properly constituted juries. The recitals in the record show them to have been good men, taken from the body of the district, fully qualified and properly impaneled; and the record does not show any challenge, or objections to the individual members of either of the juries. And this court has decided that in a court of general jurisdiction all the details of a trial are presumed to be legal and sufficient to sustain the judgment, until the contrary is shown. Territory v. Webb, 2 N. M. 147, Territory v. Yarberry, Id. 458. And it has also been held that error claimed upon the trial, to which no exception was taken in the court below, cannot be reviewed in this court. Territory v. O'Donnell, 4 N. M. 66, 12 Pac. Rep. 743; Territory v. Baker, 4 N. M. 122, 13 Pac. Rep. 30.

The contention in the brief is that the act of February 26, 1889, (Sess. Laws 1889, p. 227,) is special legislation, and, as such, falls within the provision of the act of congress of July 30, 1886, (24 U. S. St. at Large, 170.) That act provides for the selecting of two different injuries,—one to serve on the part of the United States for the district, who are paid by the United States, and one to serve on the part of the territory for the county, who are to be paid by the territory. So far as the consideration of this case is concerned, it is immaterial what construction may be given to the act, so far as it may be attempted to confer jurisdiction upon the grand and petit juries, thus established to investigate and try cases on the part of the United States, to also investigate and try cases on the part of the territory; for, should it be special legislation in that respect, it is not special so far as cases on the part of the United States are concerned, for in that respect it is the same as contemplated by the organic act, and the same as has been in operation since the organization of the territorial government. The power and jurisdiction of the court to impanel a jury was not derived from this act, but it is a proper subject for the legislature to regulate the drawing of juries; and, when legally done, the court will give effect to the act. If the legislature had failed to make legal provisions for impaneling the juries, the court could have impaneled common-law juries, and proceeded, with the business of the term. And why the grand jury that returned the indictment, and the petit jury that tried the case, were not good and lawful men, drawn from, the body of the district, possessing all the requirements and qualifications of jurors, does not appear in the record; and this court, without such showing, must presume such was the case. In answer to the argument that the act as to the district was special legislation, it is sufficient answer to say that, when the indictment in question was returned, the law provided the same kind and class of juries for every district court in the territory. And if the provisions of the act authorizing the trial of offenses under the laws of the territory by the juries thus created for the trial of offenses against the general government should be held to be special legislation, and...