Leonardo v. Territory , 1 N.M. 291 ( 1859 )

By Court,

Boone, J.:

The defendant, Francisco Leonardo, was committed at the last term of the April court for Bernalillo county, upon an indictment for receiving stolen goods, the property, goods, and chattels of one Louis Zeckendoffer. The jury assessed a fine of one dollar, upon which judgment was entered by the court below in the usual form. Upon the record herein as presented, it appears that the clerk below has omitted to certify the judgment rendered; but, by the argument of the attorney-general and the counsel for the defendant, the court is permitted to regard the judgment as entered below in the usual form.

Several exceptions were taken in the court below, and errors assigned in this court, which are in substance as fellows, to wit: That the indictment is defective; that the caption does not state that the jury were taken from the proper county, and that it is not shown that the person who is alleged to have stolen the money was first arrested, tried, and convicted; that the court erred in refusing a new trial, and that the court erred in charging the jury verbally, without being requested to do so. The indictment in this case is in the usual form, as laid down in the books of approved precedents; it is full and explicit as to the offense charged, and every material allegation is substantially set forth. It was stated in the argument, but nowhere appears in the exceptions or errors filed, that the name of the foreman was not indorsed upon the indictment, as to the finding by the grand jury. The defendant should have taken notice of this in the court below. He did not do so, but chose to go to trial, and he is now precluded from obtaining any advantage of this defect, if any in fact existed; and it is fair to presume that all was regular in the court below; that the name of the foreman is regularly indorsed upon the indictment; but that it is a clerical error of the clerk in omitting to copy it in the record. Of this I have no doubt whatever. The caption of the indictment is defective, it is alleged, because it does not state in express terms that the grand jury were tak^n from the county of Bernalillo. Upon this point the court has no doubt. The caption states that “ the grand jury for the territory of New Mexico were impaneled, sworn, and charged to inquire within and for the body of the county of Bernalillo;” and it is an extremely forced presumption, to suppose that a grand jury thus designated were taken from a neighboring county, instead of the county where the trial took place and in which the offense was committed. It is therefore sufficiently apparent that they were properly and legally selected.

As to the exception, that the person stealing the money should have first been arrested, tried, and convicted, it is only necessary to say that the act of assembly in express terms, has declared this to be unnecessary, and such, I believe, is not the law in any state in the union. After a trial upon the merits, this court will not reverse upon immaterial or technical exceptions. This, I believe, has been the ruling of every appellate court in England as well as in this country for the last three hundred years, and yet courts are still urged to pass upon exceptions of that character, and this although it must be apparent that they are certain to share the same fate of the thousand and one similar cases already decided upon.

'To seriously regard trivial and unestablished exceptions to indictments and proceedings in criminal cases,'would, in a majority of cases, entirely defeat the ends of justice, make trial by jury a mockery, and courts of justice a curse instead of a benefit to the country. There are well-settled and substantial objections that may exist and be alleged against an indictment which no trial by a jury, however fair, can cure. In cases of this character it is the duty of the court to arrest the judgment. For it is the right of every defendant arraigned upon a criminal indictment to demand that the matters charged against him should be set forth in such a manner as to afford him protection, as a bar to any subsequent prosecution for the same offense, and unless our courts disregard every or all established principles of law and common sense, no other exceptions should be entertained.

The motion for a new trial was overruled by the court below, and this court is unanimously of the opinion, from the facts exhibited upon the record, that the ruling was correct. All of the money, amounting to two thousand five hundred dollars, was found concealed in the house of the defendant, with the exception of some fifty dollars paid to him by the person who stole it, in the purchase of a horse and some provisions; and when the fact of the larceny was mentioned to him, on the morning after the occurrence, he admitted that he knew where the money was, and stated that he would disclose the fact to the owner, for the sake of the reward of ..two hundred dollars, which was offered for its recovery. This was sufficient to satisfy the jury that he knew where the money was, and the fact of his having received a portion of it from the thief, in the purchase of a horse and provisions, was calculated to leave no doubt upon their minds of his knowledge as to who the thief was. And if the defendant, for a single moment, retained this money, or any portion of it, or permitted it to be concealed in his house, either for the purpose of appropriating the same to his own use, or for the purpose of obtaining the reward, he is guilty of the charge. The smallness of the fine imposed, or assessed, by the jury, was uo doubt the result of a conviction on tlieir part that howsoever be might be guilty in the eye of the law, yet having shown a disposition to return the money, which was done to the entire amount, a mere nominal punishment was all that was required, and whether the jury erred in this view of the case or not, it is certainly no good ground for the defendant to take exceptions to. He at least should not complain of this.

There is another exception taken in this case to the action of the court below, which I will now proceed to notice. It is that the court erred in giving verbal instructions to the jury. A majority of the court are of the opinion that the act of assembly upon this subject extended to criminal prosecutions as well as civil cases. My opinion is unchanged upon this point, and I am constrained to differ with the majority of the court. There was no fault found with the court below, by the counsel for the defendant, with anything that was said to the jury by the court, and the remarks made to them were very few. No exception "was made as to an instruction either upon the law or the facts in the case, and no request made to the court to reduce the instructions given to writing. But the objection rests upon the naked fact of an act of assembly, which, it is contended, prohibits the judge in all eases from delivering a verbal charge to the jury. There are, I am aware, in many states of this union, statutes which require the judge in all cases, when requested by counsel, to furnish a copy of his charge to the jury. This is probably right and proper, and although some of the judges look upon it as a privilege liable to be abused by counsel, in sometimes requiring written opinions w'hen really no possible objections in any way can be made to the charge; yet such is the high character and courteous deportment of a vast majority of the members of the bar in the United States, in their bearing towards the court, that it seldom occurs that a judge is asked to commit his charge to writing, unless the counsel is sincere in the belief that he has erred in his view of the law, or has misstated the facts in the case; any other course would be regarded as captious. The judge is presumed, at least, to occupy an impartial position on the bench, and he should be actuated solely by a desire to see that the law should prevail, and the ends of justice be attained, and if to effect these results, he should be of opinion that the jury required instructions or an elucidation of the evidence, it is his duty to give it to them. The act of assembly in question is in these words: “That in. any suit in the district court, the judges shall give their instructions to the jury in writing only, and such instructions thus given shall be filed wfith the papers in the case.”

I shall not undertake here to enter upon the question, as to how far it is in the power of a territorial legislature to regulate the action of United States judges, as to the manner and mode of administering justice in the trial of causes, or whether it has the power to say that every word uttered by a judge to a jury, in all civil suits and criminal prosecutions shall be in writing. Would it not, by a parit}' of reasoning, have the power to say the judges should not give any instructions whatever ? However this may be, I feel it to be a matter of duty and self-respect, not to give a latitudi-nous construction to an act of the legislature, calculated, in my opinion, to impose unnecessary burdens upon the bench.

In endeavoring to ascertain what is the true Anglo-Saxon meaning which the legislature attached to the word suit, I do not deem it necessary to refer to Blackstone, Coke, or the Tear Book, or to the old Latin lexicographers, or to the early writers upon civil law, for I very much question whether these books were read or studied by the legislature that passed the law, with any view of finding out the true meaning and definition of the word suit. It* is plain and obvious that this word, in common parlance, means the mode and manner adopted by law to redress civil injuries; in other words, that it means civil action'. That this is the common and universal acceptation of the meaning of the word suit, can not be denied. The words criminal suit sound awkwardly, at least to the professional ear, and are seldom or .never used. Had it .been the intention of the legislature, or the gentleman who framed the law, to include trials for crimes and misdemeanors, the words ‘ ‘ and criminal prosecutions” would unquestionably have been added.

Tbe universal rule for construing statutes is to presume that the legislature attached the usual and customary meaning to the words employed in connection with the subject-matter under consideration. And this is certainly the only fair and honest mode of arriving at their intention. A departure from this common-sense rule must invariably lead the inquirer into a thousand devious paths. It is certainly the only safe rule for a judge to pursue, and should never be deviated from. No other construction, therefore, can, in my opinion, be fairly put upon the act in question, than that the legislature intended to impose the duty on the judge, of writing out his opinion in civil cases only.

For myself, I care nothing about the matter, and shall, of course, in the trial of civil suits and criminal prosecutions conform to the views of the majority of the court; my only objection is to the principle involved.

The court are unanimous, however, that the judgment of the court below can not be reversed upon this ground, for it does not appear that there was any misstatement of law or fact to the jury.

The judgment, therefore, of the court below is affirmed with costs.