(concurring). — In concurring in the result of affirmance in this case, I desire to submit some views upon the indictment, which has be’en so strenuously attacked by the counsel for plaintiffs in error, and with equal ability defended by counsel for the territory. The attacking counsel have supported their contention with common law authority, and it must be conceded that, if we are to adhere to what the chief justice shows were denominated the “unseemly niceties which are to the law a blemish and a reproach,” the attempt on the part of the counsel for the territory in the trial court to employ equivalents of accustomed legal phrases would meet with disaster. This decision in no sense blazes the way of departure in this court from strict common law technicality, even if we did not think that the spirit of our statute had already pointed the road. As early as the case of Territory v. Maxwell, 2 N. M. 250, we find this court announcing, upon the principle of “cessante ratione cessat lex,” that the courts of this territory should not follow the common law in prosecutions for embezzlement, as to do so would be to proclaim them powerless to punish in this day and age such an offense. The Missouri courts take a different view, and, while deprecating that they must, yet fear that in capital cases, at least, innovations even as to form should not be allowed, as one would know not where they would stop. . It is admitted by those courts that the popular acceptation of the word “instantly” makes it the equivalent of “then and there,” but they reject the indictment because they know not to what point a departure will extend. State v. Reakey, 1 Mo. App. 3; State v. Lakey, 65 Mo. 217. With due respect for those courts, it appears to me they mention what might be taken as a most excellent limit to the “innovation,” and they say they will not go to it. The rule I see no danger in is that stated by the court, to which this court looks for binding authority, where we find that in an indictment it is sufficient if time and place is stated “with reasonable certainty.” Ball v. U. S., 140 U. S. 119, 11 Sup. Ct. 761. Can it be doubted that both the court of appeals and the supreme court of Missouri, if they considered that the popular acceptation of the word “instantly” was “then and there,” would not have held indictments bad for its being used for “then and there,” if they had recognized the rule of “reasonable certainty?” It is unnecessary to pursue this subject further as to the word “instantly,” in view of its thorough discussion in the main opinion in this case, but I have thought there should not have been all omission in reference to the Missouri cases called to our attention, of which, how-* ever, it may be said that the latter ones seemed to proceed upon the theory that they must lie on the Procrustean bed which Judge Napton, in Lester v. State, 9 Mo. 666, set up in Missouri jurisprudence.
The indictment is also claimed to be bad and the verdict unintelligible, or at least not intelligible, for murder in the first degree, because murder in that degree is not exclusively charged. Again, we are remitted to the doctrine of equivalents. While a proper charge of murder in the first degree, as the pleader must have intended to charge this, would be that the defendants did unlawfully, willfully, deliberately, and preineditatedly and with malice aforethought, kill, etc., he employs the words “unlawfully, feloniously, willfully, purposely, and with express malice aforethought, did,” etc. Inasmuch as we ascertain that the statutory definition of express malice is a deliberate intention unlawfully to take away the life of a fellow creature, we may make another arrangement of words by equivalents; not equivalents, if objection may be made, that are so held by popular meaning, but equivalents as the statute says. Instead of the words in the indictment, we say, “did unlawfully, willfully, feloniously, purposely, and with the deliberate intention aforethought to take away the life of one Francisco Chavez, then and there a fellow creature,” and thus we have every word in the statute except “premeditated,” and in its place “aforethought.” To ascertain whether “premeditated” is strictly necessary to define murder in the first degree, may perhaps be best done by seeing if the words we have could possibly define murder in the second degree, or a killing, which is statutorily called murder in the third degree. "We will use our statutory substitution for the words of the indictment in an attempt to join with them words descriptive of murder in the second degree, to wit, “did unlawfully, feloniously, willfully, purposely, and with the deliberate intention aforethought then and there to take away the life of one Francisco Chavez, and without design to effect the death of said Francisco Chavez, while he, the said Francisco, was then and there engaged in .the commission of a misdemeanor” (specifying the same), and so through with the different allegations which constitute murder in the second degree in its different phases. This collocation of words plainly expresses a contradiction creating an absurdity. Test these words by joining them with the words descriptive of murder in the third degree, and the contradiction in terms becomes equally palpable. It is.evident, however, and admitted on the argument-by the able counsel for plaintiffs in error, that murder is charged in some degree, if the words “instantly died” may stand. I think it not an unfair method of ascertaining whether or not murder in the first degree is charged to show that it is impossible for these words to fit in the description of any other degree known to our law. Of course, it does not follow that because a lower degree is not described a higher degree must be, but it is legitimate to argue that equivalents in description, and- especially if they are statutory equivalents, can by no stretch of construction apply elsewhere. As already said, we have, by substitution- of the statutory definition for express malice, every word in this indictment that the statute calls for, except “premeditated.” Instead of “deliberately and premeditatedly,” we have“with the deliberate intention aforethought to take,” etc. I think the indictment clearly sufficient after verdict, and that it charges murder in so exclusive a way, under our statute, as to make the verdict plainly intelligible. The record in this ease I consider free from reversible error.
Per Curiam.The record in this case, as it was originally brought into this court, did'not show that the defendants had been arraigned and had pleaded to the indictment. While the cause- was here, an application was made to the district court where the defendants had been tried and convicted, in which it was averred that in truth and in fact the defendants had been arraigned and had pleaded not guilty before the trial below, and that the arraignment «and pleas were omitted from the record by the inadvertence of the clerk. The district court was asked to order the correction of the record in these particulars by an entry nunc pro tunc. The application was presented in the presence of the defendants and their counsel, after due notice; and, after considering it, and the proofs submitted on both sides, the district court granted the motion. The solicitor general then appeared in this court, suggested the diminution of the record here, and on his motion a certiorari was issued to the clerk of the court below, who thereupon sent up the record as amended, in which the arraignment and pleas of not guilty appeared as entered therein nunc pro tunc. A bill of exceptions was also prepared by the defendants covering the transactions which occurred on the proceedings to amend the record. The bill of exceptions was duly approved by the court, and has been brought here also on the certiorari by agreement of the parties. We have' treated the matters of alleged error in this bill of exceptions assigned in the defendants’ objection and protest as though it were a part of the principal case, and not as an independent proceeding. 1 Elliott, Gen. Prac., sec. 192. The district court, in the nunc pro tunc proceeding, acted with entire regularity, and its conclusion is abundantly supported by the proofs adduced, and no error is disclosed therein. The only question is as to whether the district court had any power to amend the record at all. This power is denied by counsel for defendants upon the following grounds: (1) That the amendments can be made-in only those cases where there are some written memoranda on file in the cause on which the amendments may be based; (2) that, after the term has expired, inaccuracies in the record can not be corrected or omissions supplied by nunc pro tunc entries; (3) that they can not be made in criminal cases; (4) that they cannot be made by an inferior court while the cause is pending in a superior court on writ of error; and (5) that Judge Hamilton, who presided at the trial of the defendants, and made the nunc pro tunc order, was not clothed with judicial power to act in the premises.
amendment of tunc^proofs ref quired. 1. The first of these grounds does not really relate to the jurisdiction or power of the court, but merely to Pr0°fe which should be required, and in that aspect we considered this question jn esamining the bill of exceptions just mentioned, but we will express our opinion more fully upon this point at this place. The authorities are not harmonious as to the character of the proofs required to support nunc pro tunc entries. In Waldo v. Beckwith, 1 N. M. 103, and Secou v. Leroux, Id. 390, we held that the facts upon which the discretion of courts to amend records now as of then may be exercised should be “confined to their' own records and to the officers in immediate connection with the courts.” The rule of practice which has obtained in this territory since 1854 does not, therefore, require any written memoranda, if the facts warranting the amendment can be gathered from the officers in immediate connection with the court. Though the rule may be more restricted in some jurisdictions, we think Waldo v. Beckwith and Secou v. Leroux are supported by the weight of authority, and we see no reason for departing from it now, so far as it is applicable to this case. In a recent case the supreme court of the United States held that the circuit court could amend a record in a criminal case by an order nunc pro tunc, based upon a recollection of the facts by the judge. The court in that case, per Justice Miller, say the first impression was that the power of the court over its own record to make such amendments after the expiration of the term was limited to those cases in which there remained some written memoranda in the case among the files of the court, by which the record could be amended if erroneous, or the proper entry could be supplied if omitted; “but,” say the court, “we are satisfied, however, upon an examination of the authorities, that this restriction upon the power of the court does not exist.” In re Wight, 134 U. S. 137, 10 Sup. Ct. 489. In Kelly v. U. S., 27 Fed. Rep. 616, it was held that the record could be corrected on the recollection of the judge after the term had expired. In the case at bar the facts of arraignment and pleas of not guilty were shown by the affidavits of the clerk, the sheriff, and district attorney, and the stenographer of the court, whose notes and a verified transcript thereof were also produced. The order sets forth that upon such evidence, and upon the. recollection of the judge of the fact of such arraignment and pleas of not guilty before the commencement of the trial, the record was corrected according to the facts. The order is supported by the oaths of officers in immediate connection with the court, the stenographic notes of a sworn officer, which belong to the files of the court, and the recollection of the facts by the presiding- judge. Moreover, this conclusion is supported by the recital in the' record that, “issue being joined,” the trial was had, and a verdict of guilty was returned. This was sufficient alone, in our opinion, to justify the amendment since made, as the only issue which could have been joined upon which the verdict of not guilty would be responsive would be upon a plea of not guilty after arraignment.
iecord after ex-pnation of teim. 2. There is diversity of opinion as to the source of the power to make nunc pro tunc entries, but there is none as to the existence of-the power to make tlie records now as oi then contorm ^ an(j Speak the actual truth of past transactions, where, by the neglect or inadvertence of the clerk, an omission has occurred, or a false entry has been made. Mr. Elliott is of the opinion that the power did not arise from the statute of Henry VI., but is inherent. 1 Elliott, Gen. Prac., sec. 192. Other authorities, we think correctly, take the same ground. Balch v. Shaw, 7 Cush. 284; Fuller v. Stebbins, 49 Iowa, 376; Crim v. Kessing, 89 Cal. 478, 26 Pac. Rep. 1074; Works, Courts, p. 171. Our statute, however, allows nunc pro,tunc entries to be made “whenever the ends of justice may require it.” Comp. Laws 1884, sec. 1836. This statute is not confined to civil cases. The period in which this power could be successfully invoked is not limited to the term at which the transaction occurred. In one instance it was employed after the lapse of twenty-three years. Freem. Judgm., sec. 56. In a series of cases the supreme court of the United States has allowed such corrections .years after the expiration of a term. The power thus possessed to at any time make the record speak the truth is, of course, not to be confounded with the correction of an erroneous or deficient order or judgment, truthfully entered, which must, of course, be made during the term. In the time of- Edward I, Chief Justice Hengham and his fellow judges were heavily fined for so altering the records to speak falsely, and a tradition prevailed that a clock house was built at Westminster HalJ. from these fines. Lord Coke says that in the time of Elizabeth “Sir Robert Catlyn, chief justice of England, would have had Justice Southcote (one of his companions, justice of the king’s bench) to have altered a record', which the justice denyed to doe, and said openly in court ‘that he meant not to build a clock house.’” 1 Champ. Ch. Just. 112. Blaokstone says the severity of the proceedings against Hengham and his companions seems to have alarmed the succeeding judges that through fear of doing wrong they hesitated at doing that which was right, and, because Britton had forbidden alterations to make the records speak a falsity, “they conceived that they might not judicially and publicly amend it to make it agreeable to the truth;” so that “the legislature hath therefore been forced to interpose by no less than twelve statutes to, remedy these opprobrious niceties. Its endeavors have been of late so well seconded by judges of a more liberal east that this unseemly degree of strictness is almost entirely eradicated, and will probably, in a few years, be no more remembered,” etc. 3 Bl. Comm. 409. We think it quite clear that the power is not one evolved by modern cases, as counsel for defendants has insisted in his argument and brief. If the power was derived from the common law, then, even though it had not been authoritatively declared by judicial decision until recent times, it would be none the less operative in this territory. The decisions of the courts are merely evidence of what is common law. 1 Bl. Comm. 70, 71. Our statute, which makes the common law the rule of practice and decision, has not provided for a rigid body of laws found only in statutes enacted and decisions rendered prior to the Revolution, incapable of expansion, and inflexible, like a code. The law concerning corporations, libel, and indeed upon every subject, has been greatly modified or extended and improved since then by the gradual process of judicial decision, and it is one of the greatest virtues of the common law that it can be so molded to meet the needs of social development.
Alr“?rTbyNorder extent1 of poiver. 3. It is also urged that, whatever the power may be in civil cases, it does not extend to those criminal. This point was expressly ruled against in 134 U. S. 137, 10 Sup. Ct. 487. In Bilansky v. State, 3 Minn. 427 (Gil. 313), the court say: “The fact that the case is a capital one is in no way an absolute bar to its exercise, but it should be served to inspire the court with so anxious a solicitude to be right as to insure certainty. We can see no good reason why the court should not have made the amendments that it did in this case.” In Benedict v. State, 44 Ohio St. 679, 11 N. E. Rep. 125, it was also held “this power may be exercised in criminal prosecutions as well as in civil cases.” Elliott says, “Recitals omitted by mistake in criminal cases may be supplied by entries now for then.” 1 Elliott, Gen. Prac., sec. 192. The same rule was laid down in Ex parte Jones, 61 Ala. 399, and was fully recognized to apply to criminal cases in 1 Bish. Cr. Proc., sec. 1343; Kelly v. U. S., 27 Fed. Rep. 616; State v. Farrar, 104 N. C. 702; 10 S. E. Rep. 159; Freel v. State, 21 Ark. 226; State v. Primm, 61 Mo. 166.
Pmemaftea™rd' by°writ0ofcerror. 4. It is also said that, as the cause was pending in the supreme court on -writ of error, the district court could not amend the record. There is no reason why any distinction should be taken in this respect between appeals and writs of error. Perhaps it might be more regular to remit the l’ecord to the court below for correction, but .it has been quite generally held that the removal of the cause by writ of error does not deprive the court below of the power to amend its- record so as to make it conform to the truth. Freel v. State, 21 Ark. 226; Stebbins v. Anthony, 5 Colo. 342; Stephens v. Bradley, 2 S. Rep. (Fla.) 667; Pleyte v. Pleyte, 24 Pac. Rep. (Colo. Sup.) 579; Ross v. Steel Works, 34 Ill. App. 323; U. S. v. Vigil, 10 Wall. 424. And in Kelly v. U. S., 27 Fed. Rep. 616, it was allowed after the cause had been transferred from the circuit to the district court.
Qass“tíkte|ís”cef hVdistricu6 of statutes?11011 5. It is also objected that Justice Hamilton was not clothed with judicial power in the premises. Upon this point it is contended that under the organic law of the territory Justice Laughlin was the ouly judge having power to act in the First judicial district court, and that Judge Hamilton, although an associate'justice of the supreme court, could not act, even though Judge Laughlin was disqualified by reason of his relation as counsel for the prosecution before his appointment to the bench; and the courts may thus become powerless to perform their duties. The whole of the judicial power of the territory is vested in the supreme, district, and probate courts and justices of the peace. Act Sept. 9, 1850, sec. 10. The jurisdiction, original and appellate, shall be as limited by law. The supreme and district courts shall possess chancery and common law jurisdiction. Under the same act (1850) it was also provided that the territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the supreme court, at such time and place as may be prescribed by law; and the said judges shall, after their appointments, respectively reside in the district which shall be assigned them. It will be noted that the judicial power which is thus vested in plenary terms in the district courts is to be exercised in each district “by one of the justices of the supreme court.” It does not require that it shall be exercised by any particular one of the justices; and while, for the convenience of the public, a judge is to be assigned to each district, who is required to reside therein, there is no express or implied prohibition upon any judge against exercising power in' any district not the one to which he has been assigned. There is nothing in the language of that clause requiring such a construction as will confine the exercise of the power to the particular justice assigned to the district, when that person is otherwise incapacitated. We have been cited to Stanley v. U. S., 1 Okl. 342, 33 Pac. Rep. 1025, as an authority holding a different opinion. We entirely agree with the court in that case that the district courts are creations of' the federal congress and derive their powers and authority from the laws of the United States; but we also recognize that congress has said that the judicial power of the district courts is to be exercised “by one of the justices of the supreme court,” and we cannot agree that the requirement that a justice shall be assigned to and reside in a district — a provision designed merely for convenience — is sufficient, it may be, to paralyze the administration of justice, or, on the other hand, force a judge to preside who is unfitted by reason of his interest in the cause, or his previous employment as an attorney in the case. Moreover, the records of this court show that no assignment has ever been made of any judge to any particular district. In the year 1858 it became desirable to hold court at more than one place in each district, and congress granted authority for the holding of court in each county. There is nothing in this act (June 10, 1858) amounting to the prohibition contended for, and the maxim, “Expressio unius exclusio alterius,” has no application whatever. It is idle to contend that such language is sufficient to block the wheels of criminal justice.