Territory of New Mexico v. Herrera

OPINION OP THE COURT. CRUMPACKER, J. 1 As to the first objection urged-we deem it sufficient to say that a reference to the transcript of the record of the return of the verdict (fully set forth in the statement of the case) shows conclusively and affirmatively that appellant was present in court when the verdict was rendered by the jury. 2 The second and third objections present questions which this court can not determine upon the record before us. As appears from the transcript of the record the “defendant proposed the following record upon which the judgment of the district court may be reviewed,” and thereafter it was “stipulated by the district attorney and the defendant’s attorney that the foregoing proposed record and bill of exceptions may be settled as the record on which the judgment in said court may be reviewed by the Supreme Court,” upon which the judge settled the bill of exceptions, reciting “upon the foregoing stipulation, the foregoing record and bill of exceptions are settled, signed and sealed as those upon which the said case may be heard in the Supreme Court” and thereupon the clerk certified “that the above and foregoing contains a true and perfect transcript of the record and proceedings and bill of exceptions as signed by the judge of said court. . . .” The transcript neither purports to be, nor from a careful inspection of it can we declare it to be in fact a full, true and complete transcript of the record in the case. Because these alleged errors are not shown by this record to have been biSught to the attention of the trial court by motion in arrest of judgment, or in any other manner, the question might arise as to whether they may be presented here at all for the first time; but however that may be, certainly upon such a state of facts it may not be urged that the Territory is estopped from complaining of the incompleteness of the record by reason of its stipulation for a record when such stipulation was not made in view of any of the objections here presented. Without here determining the character of “the record” which is to be certified to the Supreme Court by the elerk of the district court pursuant to the statutes (sections 3413 and 3414, C. L. of N. M. 1897) it is plain that upon a certification not purporting to be of the entire record this court can not presume, that a full and complete transcript of the record would fail to show a proper continuance of the case after November 30, 1897, to some other day in that regular term or to some day in the next regular term of the court. It is well known to be the settled practice of the district courts in New Mexico at the close of each regular term to make a .general order of continuance of all causes, matters and motions not otherwise disposed of until the next regular term of the court; and if such an order was necessary in this case, can this court upon this record determine that such an order was not entered? Clearly not. Nor upon such a.record can we conclude, as urged by counsel for appellant, that because the order setting the case for trial on May 23, 1899, fails to show the presence of the defendant or his attorney, that the record is fatally defective for that reason. By the full and complete record might it not have been made to appear by some other order entered in the case on the same day or at some other time that the defendant was personally present in court when said order or a like order was made? The inference that he was not present can not be drawn from the record before us. All parts- of the record are to be interpreted together, effect to be given to all if possible, and a deficiency at one place may be supplied by what appears at another. Pointer v. U. S., 151 U. S. 419. Upon this certification of a stipulated record, all parts of the record are not before ns for interpretation, and this court is therefore unable to determine whether the facts are as they are alleged' to be by counsel for appellant. Upon this record, certified by the clerk as signed by the judge of the court, signed by the judge as stipulated by counsel, and stipulated by counsel as proposed by the defendant, we are asked to presume that the defendant was not present at a time during his trial when it is alleged his presence was essential to its regularity, and to presume that no legal order of continuance was ever entered. We do not here decide whether his presence at the time the case is alleged to have been set for trial was essential nor whether the entry of the continuance as shown by this record is insufficient, since we think the contrary doctrine to the one here urged is the true one; that in a court 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. Yarberry v. Territory, 2 N. M. 458; Territory v. Webb, 2 N. M. p. 159. And as to the second and third errors above set forth we conclude that the contrary is not shown by this record now under examination, and we find the judgment is not for these reasons illegal. 3 The fourth objection based upon the failure of the record to show that the defendant was asked by the court before judgment was passed whether he had any thing to say why the sentence of the court should not be passed upon him, raises a more serious question. It was stipulated that the record of the sentence and judgment of the court should be incorporated in the transcript of the record, and so much being actually certified in this stipulated record, the transcript thereof will be regarded as thus far full and complete; nor can it be said here that the appellant might have presented this alleged failure of the trial court in its duty to make the usual inquiry of the defendant, by motion in arrest, since one of the objects of the privilege of allocutus is that the prisoner must have an opportunity to allege any further ground in arrest. At common law it was deemed essential in capital cases that this inquiry be made of the defendant before sentence, thus giving him an opportunity to allege any ground in arrest, or to plead a pardon if he had obtained one, or to urge any legal objections to any further proceedings against him, and that the defendant might be identified by - the court as the real party adjudged to be guilty. This privilege was deemed to be of such substantial-value to the accused that the judgment would be reversed if the record did not affirmatively show that it was accorded to him. Ball v. U. S., 140 U. S. p. 118; Schwab v. Bergren, 143 U. S. p. 442; Crain v. U. S. 162 U. S. p. 625; Wharton’s Grim. Plead. & Prac., sec. 906. The test as to what shall be deemed a capital case is the punishment which may be imposed under the statute and not the punishment which is imposed. (Fitzpatrick v. U. S., 178 U. S. p. 307) and the punishment which might be inflicted under the New Mexico statute being death this case, although the attempted sentence was for a term of years, the statutory limit of the third degree of murder of which accused was found guilty by the jury, is clearly a capital case, and the practice of allowing allocutus not having been dispensed with by statute in New Mexico the common law rule prevails. Sec. 3422, Compiled Laws of N. M. 1897. It is contended by appellee that what is said by the Supreme Court of the United States in the above cited cases upon the necessity of the record showing affirmatively that allocutus was allowed is obiter dicta, and therefore not binding upon this court; but if the reasoning of that court in this regard should be so interpreted, still we are constrained to regard its dicta on the question here involved as sound in principle, and as said in the case of Ball v. United States, supra, the question is settled as there laid down “by the great weight of authority.” We are especially constrained to so regard these expressions of opinion of that court in view of the possibility that this question may be reviewable in the Supreme Court of the United States by proceedings in habeas corpus. Owing to the failure of the trial court to make inquiry of the defendant before judgment was passed whether he had anything to say why judgment should not be pronounced upon him, or what is tantamount thereto, to have the record affirmatively show that fact, the cause must be remanded; but as no error was committed during the trial of the case up to the time of the rendition of judgment, which relates to a part of the case which comes after verdict, the cause will be remanded upon that ground only, and the trial court directed to enter judgment and sentence upon the verdict rendered, having the prisoner before the court at the time and inquiring before pronouncing judgment if he has anything to say why it should not be pronounced. United States v. Ball, 140 U. S. pp. 118, 133; State v. McClain, 38 N. W. 906; 137 Mo. 307; State v. McClain, 56 N. W. 751; Jewell v. Comm., 22 Pa. St. 94; McCue v. Comm., 78 Pa. St. 185; State v. Snyder, 98 Mo. 555. The view above expressed disposes of the fifth and sixth errors assigned. The cause therefore will be remanded with directions to the court below to proceed as indicated in this opinion. Parker and McMillan, JJ., concur. Chief Justice Mills having tried the case and Justice McFie being disqualified did not sit in this case.