United States v. Clerk

• Decision Date: 04 September 1894
• Parties: UNITED STATESv.GOMEZ. Clerk.
• Court: New Mexico Supreme Court

7 N.M. 554

37 P. 1101

UNITED STATES

v.GOMEZ. Clerk.

Supreme Court of the Territory of New Mexico.

Sept. 4, 1894.

Appeal from first judicial district court; before Justice Seeds.

Manuel G. Gomez, a clerk of school district, appealed from a judgment of guilty under an indictment of neglecting and refusing to receive poll taxes.

An objection to a juror which is good cause of challenge must be made in time, or it will be considered as waived, and will not vitiate the trial.

Catron & Spiess and B. M. Read, for appellant.

J. B. H. Hemingway, U. S. Atty.

LAUGHLIN, J.

The appellant, Manuel G. Gomez, was indicted by the United States grand jury for the first judicial district court for the territory of New Mexico, at the January, A. D. 1893, term of said court, under the provisions of section 5506 of the Revised Statutes of the United States, charging, in substance, that he, being the clerk of school district No. 2, in Taos county, N. M., neglected and refused to receive the poll taxes of Benedicto Lopez and Jose A. Santistevan, who were entitled to vote at the general election held on the 8th day of November, A. D. 1892, upon the payment of their poll taxes, which they had the right to pay, and offered to pay, to the defendant; and appellant within the time allowed by law; and at the May, 1894, term of said court the defendant was arraigned, entered a plea of not guilty, and was tried upon the indictment; and the jury found the defendant guilty, and so returned a verdict, whereupon the defendant filed motions for a new trial and in arrest of judgment, both of which motions were denied and overruled, and the court passed judgment on the defendant, and fixed his punishment at the term of two months' confinement in the New Mexico penitentiary, and sentenced him accordingly, from all of which rulings and judgment of the court below, the defendant brought his case here by an appeal.

The appellant assigns as error eight grounds, only one of which it is necessary for the disposition of this case to consider, and it is as follows, to wit: “(5) The court erred in holding that Ventura Encinas, although sixty years of age at the time of trial, was a qualified juror to try the case.” In support of this proposition, appellant filed affidavits of Pedro Sanches and Simon Segura to the effect that the juror Ventura Encinas had on the 28th day of May, 1894, which, as it appears from the record, was the second day of the term of court at which appell...