Separate opinion of
Benedict, C. J.:Although I concur in the judgment which the court renders in this case, I am not content to let it rest without putting upon record my opinion as to one or two points •which have been presented. The transcript shows that the defendant moved in arrest of judgment, assigning as one ground, that the court charged “ and directed the jury, as to thelaw and fact, without being requested or desired to do so; and that said charge and direction was given verbally, without requirement, against the provisions of the statute, thereby illegally influencing the jury.” Defendant excepted to the court’s overruling the motion. As to the exception that the court charged and directed the jury without being requested or desired, I can hardly think that the distinguished counsel for the defense could have been very serious in the insertion of that portion in the motion or bill. The power and right of a judge to give a charge to the trial jury after bearing the evidence, when be shall think proper and shall believe that 'right and justice in the case demand such act to be done by him, does not depend upon the wishes or will of the parties or their counsel; it is among the functions and duties of the judge. He is not required to be passive and silent, until moved to the exercise of this important function by the counsel, nor can he be resisted in its performance, although the matter, the principle, and law of the charge may be excepted to and preserved for revision in the appellate court. He should scrupulously avoid encroaching upon the rights of the jury, whether in civil or criminal causes, but within his sphere of duty and authority. He should see in-trials beforp him that crimes do not go unpunished, and that the innocent do not fall under conviction; that justice be not thwarted or trampled under foot; that passions and prejudices do not usurp the office of calm minds and impartial judgment; and that sophistries and ignorance do not dominate over reason, logic, and the laws.
In instructing the jury below without being required, the judge but exerted his right to do so, and all exceptions as to the kind of chair he occupied, or where his hat was hung, or where he boarded and lodged, would have possessed equal legal merit and effect. Not so with the other portion of the exceptions mentioned in the case; this was the instructing verbally. In January, 1853 (see Eevised Statutes), the legislature enacted, as appears in the English translation, as follows: “ That in any suit in the district court the judge shall give his instructions to the jury- in writing only, and such instructions so given shall be-filed with the papers in the case.”
I am not aware that any judge in this territory has ever held that this provision was binding upon him in the trial of causes arising under the laws of the United States. In such cases our courts look for their rules of proceeding and practice to a source superior in authority to our general assembly. In cases arising, however, out of the legislative acts of this territory, and in trials in that branch of jurisdiction, the courts have conformed in their rules of procedure to those prescribed by the legislature where the subject was one of rightful legislation in its hands.
In tbe act cited, the word suit being employed in the English publication, the court below seems to have held, and the judge of that court holds still, that civil suits only are included, and criminal causes are excluded. Now 'to a rightful interpretation of the act, it must be taken into consideration that the translation is from the original in Spanish. It is so marked in the statutes. It was introduced, passed, and approved by the governor in Spanish; tlieu, if there be any discrepancy between the plain and unquestioned meaning of the terms used in the Spanish original and the terms used to express the same meaning in the English translation, the original must prevail. In the interpretation of the law the Mexican people are not to lose the benefit of their laws enacted in their own tongue, because the translation has done injustice, or because those who occupy judicial seats may not be versed in the Spanish idiom. Now, the word used in the original act in Spanish, and which is translated suit, is causas; this is plural of the noun causa. The causa, according to high Spanish authorities in lexicography, when used in relation to judicial proceedings, means lawsuits, trials, criminal causes or information: See Yelazquez’Dictionary.
By reference to the Spanish and Mexican law-writers, we find that the word causas is used to embrace all causes, as well criminal as civil. The terms suit and lawsuit, we find, when translated into Spanish, to be, in connection with judicial matters, pleito, and this word is defined litigation, judicial contest, lawsuit. Cause in English includes those civil and criminal, so the word cansas in Spanish expresses civil and criminal causes.
Eiom this exposition, there can be no doubt that the act, as written, passed, and approved in the Spanish original, and as it now stands upon the statute books, does require the judges to give their instructions to juries in all cases, civil and criminal, in writing. New Mexico is not strange and alone in this kind of legislation. Many states have enactments on the same subject, and not infrequently more stringent in limiting their judges’ action in the mode of instructing juries. Our act only requires the instructions, be they what they may, to be written, and to be preserved with the files of the cause. The judge may instruct to whatever extent he may believe the case demands, but he must write what he says. In the motive that induced the law in question, I can see no good reason that it should be limited to civil causes only. It was intended to temper the influence of the judges with the juries. Perhaps the law-makers were under the impression, justly obtained, or from misrepresentation or caprice, that some of the judges had misused or abused the power of instructing, by making the “last speech ” to the jury. Perhaps some judge, from a warm zeal to promote justice and prevent wrong, had contracted .a habit of endeavoring to enforce, by his delivery and manner, his views, opinions, and feelings upon juries to such an extent as to produce discontent among parties in court. It may have been, too, that ambitious and talented counsel, in all the warmth of advocacy for their clients, had felt chafed and chagrined in meeting instructions pointed and amplified in direct hostility to the counsel’s great object and hope — success. Let the complaint have been what it may, any, motive apparent existed as strong with reference to criminal causes as civil causes. Lawyers, from their education and practice, would incline to look for the stronger motive growing out of criminal causes. If the judge abuses his functions, and, from his influence with juries, becomes dangerous to the rights of parties on trial, can it be supposed that the legislature would only check and temper his action in cases involving dollars and property only, and leave him loose to act out his will, ample and swift, in cases which involve the liberty and life of the party upon trial ? Such a discrimination, I presume, is unknown upon the statute books throughout the union, and I' certainly shall not impute to our assembly the discredit of having adopted it, until the rules of legal construction shall impose upon me the obligation to determine that such adoption has been made.
To be prepared to instruct at all times in writing, and not to err as to the law or the examination of facts, is a severe task upon intellect and knowledge. To escape error and never mistake the law can hardly be expected of the ablest and wisest. No judge should, however, so dispose of the rights of men from the bench as to shrink from furnishing for review the clearest evidence of his acts or their legal grounds. The additional labor in concentrating the powers of the mind and condensing principles into writing has some compensation in the avoidance of disputes and misrecollec-tions at the bar as to what has really been instructed when exceptions are taken. In this the dignity of the bench is less annoyed and exact certainty attained. The higher the position and more enlarged the service imposed upon a man in a free government, the more intense is the mental labor to equal the duties and requirements of the office. The judges of the higher courts hold in their hands the administration of the laws to their fellow-beings. On these depend the happiness and security, ■ even the very existence, of society. Labor and anxiety, with an oppressive feeling of responsibility, are unavoidable to an enlightened and conscientious judge. The office is not created for the gratification of his pleasures, vanity, or pride. He is in a high trust position, for and in behalf of the government, the the public, and individuals. This ease and quiet must constitute no part of the rule of his conduct, nor must he shrink from any burden or labor as hard and unbearable, when required by the legislative powers, with an intentional want to arrive at greater directness, exactness, and justice and right in guarding and enforcing the natural and legal rights oilmen. The continuance in an office and receiving its honors and emoluments should all be received as evidence of a willingness on the part of the incumbent to discharge all the duties, bear all the burdens, and perform all the labor pertaining to the office.
As to the instructing verbally in this case, I am clearly of opinion that it was improper on the part of the court and in direct violation of the statute. Yet that complaint can avail the convicted defendant nothing. In the hearing he has obtained in this court, he should have embodied the charge itself and been ablgy +Lo have submitted it to the inspection of this court ¿This court will not reverse any cause for alleged irregularities if. manner of charging the jury, unless th/Scharge itself sliiJl be preserved and the record shall show that it was excepted to rvlien delivered. This court must be able to see that the instructions were such as might lead to influence unfavorably the party complaining. Nothing will be regarded as instructions required to be written except those given upon the law aiid evidence touching the merits of the case and the issues submitted to the jury. Trivial exceptions upon immaterial matters will work no relief to the objector, and especially when the whole record shall show that upon full trial substantial justice has been done between the parties. The in-dorsement of the name of the foreman of the grand jury upon the indictment is an indispensable act. I would not for a moment be understood as tolerating the idea that the court could arraign the accused and compel him to plead to and go to trial upon an indictment without such indorsement. No notice was taken of such omission in this case below. Surely no counsel, in the fulfillment of his professional duties, would submit his client to all the expenses, •perils, and mortifications of a trial for felony, knowing such a fatal deficiency to exist in the form of proceedings, and in giving faith and authority to the public charge of crime. It certainly can not be supposed that the omission could have escaped the counsel’s examination.
All reasonable presumptions in this court are now in favor of the proceedings having been regular, and the conviction rightfully had in the court below. Particularly *is this the case when the charge does uot involve life or a total destruction or forfeiture of the liberty of the accused. In this case it is fair to presume that the indorsement existed in the court below, and that clerical laches have failed to send the fact with the transcript. The clerk does certify that the “indictment” was found by the grand jury. A glance at the transcript will at once evince the irregular and inexperienced manner in which it is prepared. The defendant brought this case for review. It was upon him to have a perfect record befor^us.' The party presumes too much upon the want of Cáution^pd firmness of this tribunal, so far as its historjhas as yerbeen unrolled, when he brings his case here;-¿,ü(p wíth a mutilated record, caused by evident clerical errors, liopes to escape upon an untenable technical objection the just denunciations of the law which have overtaken him iu the district court.
The attorney-general for the territory might well have gone to a hearing upon the transcript, with an intelligent foresight that though the defendant had filed an evidently diminished record, the court would properly regard and enforce the legal presumptions inherent in the cause.
Blackwood, J., concurred with his honor the chief justice.