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the order or judgment appealed from shall have been rendered, and the bond shall be approved by the probate judge.” Comp. Laws, p. 184, $ 5.
There are several provisions in regard to appeals from justices' courts, but the only ones having any bearing on this case are as follows:
“Sec. 81. Any person aggrieved by any judgment rendered by any justice (Alcalde) may appeal, by himself, his agent, or attorney, to the district court of the county where the same was rendered: provided, however, that no appeal shall be allowed unless the party appealing shall file a bond to the adverse party in a sum sufficient to secure such judgment and costs, with one or more sureties, to be approved by the justice, (Alcalde.)
“Sec. 82. Upon an appeal being made according to the foregoing section the justice (Alcalde) shall allow the same and make an entry of such allowance on his docket, and all further proceedings on the judgment shall be suspended by the allowance of the appeal.
“Sec. 83. On or before the first day of the next term of the district court for the county the justice (Alcalde) shall file in the office of the clerk of said court a transcript of all the entries made in his docket relating to the case, together with all the papers relating to the suit." Comp. Laws, N. M. p. 102, $S 81, 82, 83.
Also another act, as follows: "That from and after the passage of this act all appeals from the sentences of justices of the peace to the probate court or to the district court, the appellant shall cause to be filed in the office of probate court or in the office of the district court, as the case may be, a certified transcript of the record and proceedings had before the justice of the peace, together with the original oath recognizance and other original papers in the cause, on or before the return day of the appeal. Id. p. 172, § 114.
On January 24, 1865, an act was passed, and among its provisions are the following: "That the Revision of the statutes commencing with article one, entitled 'Acquests,' and ending with article sixty seven, entitled Woods and Prairies,' with all and each of the articles and chapters inclusive, be and the same are hereby declared to be the Revised Statutes and laws of the territory of New Mexico, and as such shall have full force and effect in all courts thereof."
The Revised Statutes here referred to are what are commonly known as the Compiled Laws of New Mexico. Id. 742. This act, establishing as law the various enactments embraced within the compilation of statutes of that date, covers all the laws above recited in regard to appeals from probate courts. From this legislative snarl the question is presented as to how so simple a matter as an appeal from the probate to the district court must be taken. It is one of those complicated anomalies in legislation that can have but little to commend it beyond an amusing puzzle for courts and lawyers.
On behalf of the appellant it is claimed that the modes of appeal
from justices' courts and from district courts are so radically different that they cannot be harmonized and applied to appeals from probate courts, and that the mode of appeal from justices of the peace is the only one that can be applied. We cannot concur in this view. There is one way only in which these various acts can be harmonized, and that is by a substantial compliance with them all. Appeals from the district courts require an affidavit of non-vexation and delay; that the appeal be taken at the same term at which the judgment or decision is rendered; that a transcript of the record be sent up, and a bond as a conditition precedent to a supersedeas, etc., while appeals from justices' courts require a bond as a condition precedent to an appeal. The appeal itself operates as a supersedeas—not only a transcript of the docket entries, but also the original papers must be transmitted to the appellate court, and in cases of “sentences" the transcript must be certified to. No one need have any difficulty in complying with all these provisions of the law, so far as they are applicable to appeals from probate courts.
In the light of these views it follows that if, on an appeal from the probate, at a term thereof, to the district court, the proper attidavit of non-vexation and delay were made and filed, the proper bond covering the damages and costs executed and filed, the order allowing the appeal entered, and a certified transcript of the record, together with the original papers in the case, were transmitted to the appellate court, the appeal would be regular.
It appearing from the record that all the conditions precedent to an appeal were not complied with, our opinion is that the appeal was irregular and properly dismissed.
Judgment below affirmed.
AXTELL, C. J. I concur.
TERRITORY V. NICHOLS.
January Term, 1884.
Courts should not, in the discharge of their duties, encroach upon the Sabbath : out where a jury reach a verdict on Sunday, the verdict may be received and the jury discharged, but the decision should not be rendered on that day.
While the unauthorized separation of a jury, before returning the verdict they were sent out to reader, is a grave irregularity, it will not avoid the verdict if it is clear that no abuse followed, or that the defendant was prejudiced.
The court must submit to the jury the consideration of every degree of the crime charged which the evidence tends to prove, and the exclusion of any grade is error, whether asked for by counsel or not, and warrants a reversal of the judgment.
Appeal from First district.
William Breeden, Atty. Gen., for appellee.
W. D. Lee, for appellant.
BELL, J. The prisoner was indicted for murder in the first degree at the September term of the district court for the county of Coifax. Thereafter, at the same term of the said court he was tried upon this indictment, and convicted of the offense of murder in the second degree and sentenced to imprisonment for life. From this judgment thus pronounced against him he has appealed to this court. Vari. ous errors are assigned upon the record before us, which we will consider in their order. The first is, that the verdict in this case was returned on Sunday, and is therefore a nullity. Authorities are cited to sustain this view, and some of them do so, but a careful review of the modern decisions leads us to the conclusion that the common-law rule has been so modified in most of the states as to make it proper to receive a verdict on Sunday, though perhaps not to pronounce a judgment thereon. The distinction is made by many of the decisions between acts judicial and ministerial, and it is held that the receiving of a verdict is ministerial, or, at most, only quasi judicial. It may be done when no strictly judicial act can be; as, though Sunday is dies non juridicus, wherein no judicial act is valid, but ministerial acts are, a verdict received on Sunday is good, yet not a judgment on the verdict.” Bish. Crim. Proc. par. 1001, and numerous cases cited; Houghtaling v. Osborn, 15 Johns. 119; Baxter v. People, 3 Gil. man, 385. The reason assigned by some of the judges against the propriety of receiving a verdict on Sunday is, in substance, that it is a desecration of the Sabbath day; that, in the language of the supreme court of Iowa, “courts of justice should, at least, by their practice and decisions, maintain the sanctity of that time-honored and heavenappointed institution." We cannot see the force or good sense of such reasoning. Is it to be said that the sancity of the day is violated by discharging from unnecessary confinement 12 citizens who have completed important and honorable service for the state? Is it desecration to permit them to return to their homes and join with their families in such observation of the day as may seem good to their consciences? We think not; and are therefore clearly of the opinion that the return of the verdict in this case on Sunday was proper.
The common-sense view of this subject is so well presented in a New Jersey case that we quote from it: “Although it is the solemn duty both of courts and juries so to arrange their business and so to discharge their duties as never to encroach in the smallest degree on the Sabbath, if it be possible to avoid it, yet when the jury bave been compelled to reach the morning of that day before the verdict was prepared, I see no mode of proceeding so proper as to receive the verdict, dismiss the jury and parties, and at such future day
as may be convenient and proper take the subsequent proceedings. This must be done ex necessitate rei." Van Ripen v. Van Ripen, (4 N. J. Law,) 1 South. 156.
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 quite 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 reason assigned. From the record it appears that the jury agreed upon their verdict at about 4 o'clock in the morning; that they wrote it out, and each juror signed it, and that the written verdict thus signed was placed in an envel. ope, sealed, and taken in charge by the foreman of the jury; that the jurors then separated and reassembled at the court house at about 8 o'clock of the same morning, and then returned their verdict to the court convened for that purpose. The following also appears in the bill of exceptions as returned: “It is not claimed that the verdict was in any way changed after the jury separated, but it is agreed that the verdict which they agreed to, signed, sealed up in an envelope, and delivered to their foreman, is the same verdict upon which they were polled.” However reprehensible the unauthorized separation of the jury may have been, we think the record shows clearly that no prejudice to the prisoner came from it. The best authorities on the subject now hold that when the separation was under such circumstances as that there was no reasonable ground to believe that any abuse followed, a verdict will not be disturbed. In regard to irregularities on the part of a juror or the panel Bishop says: “The doctrine is that if the defendant has been deprived of a substantial right, or if he has suffered injury or been put in danger of suffering it from an irregularity, and has been convicted, the verdict will be set aside; otherwise not." 1 Bish. Crim. Proc. par. 999, and cases cited.
The supreme court of New York, in an elaborate discussion of this question, says: “Anciently, the utmost rigor and strictness was observed in keeping the jury together, and when once charged with a cause, they never could be discharged till they had agreed upon their verdict; but the practice has been much relaxed in modern times in both these particulars. On looking into the books we do not find that a mere separation of the jury has ever been held a sufficient cause for
setting aside a verdict, either in a civil or criminal cause, if we except, perhaps, the case of Com. v. McCaul, 1 Va. Cas. 271. We think that the mere fact of separation, unaccompanied with abuse, should not avoid the verdict, even in a capital case. We do mean to be understood as saying that the mere separation of the jury without any further abuse is not sufficient ground for setting aside a verdict, though it may deserve severe reprehension from the court." People v. Douglass, 4 Cow. 26; People v. Ransom, 7 Wend. 423.
In another case in the same state, Judge SELDEN says: “In New York mere separation (of the jurors) without permission appears formerly to have been prima facie evidence of misbehavior, but the better opinion now is that to vitiate a verdict reasonable suspicion of abuse must exist." Eastwood v. People, 3 Parker, Crim. R. 44.
The reasoning in the cases cited seems to us to express the correct view of the law. In the case at bar, the record, as we have said, shows clearly that no abuse followed the unauthorized separation of the jury, and there is not left even a suspicion that the defendant was thereby prejudiced. We are therefore of the opinion that the court below correctly refused to set the verdict aside on account of this irreg. ularity.
The next point made by counsel for the appellant is that "the evidence in this case is of such a nature that the jury might have found the defendant guilty of murder in the fourth degree, and it was error in the court in not instructing as to murder in the fourth degree." By the bill of exceptions certified to this court, it appears that “said judge who presided at said trial instructed the jury impaneled to try said case only in relation to murder in the first degree and murder in the second degree; and the said defendant did not, either personally or by his counsel, ask for instructions in any other degree or degrees of murder.” It is, we think, so well settled as to become almost elementary law that the court in its instructions to the jury in a criminal case must give to them all the law applicable to the evidence elicited at the trial. This, indeed, is the very purpose
, of instructions from the court, and it is only properly fulfilled when the jury retire to their room fully informed of the principles of law which is to govern them in considering the testimony. The law makes this the duty of the presiding judge, and he must perform it whether requested to do so or not. Suppose the evidence in a capital case clearly pointed to a particular degree of the crime as defined by the statute, and the presiding judge failed, through inadvertency or otherwise, to charge as to that degree, and the defendant was thereby prejudiced, can it be said that because his counsel did not ask for instructions as to that particular degree, that he cannot avail himself of the error in the appellate court? We think not; and as we have said already, we think the law on this subject is well settled. Bishop, in his work on Criminal Procedure, says: “The charge should state the law in its application to the facts, as