DISSENTING OPINION.
POPE, J.(dissenting),' — I am unable to concur in the decision of the court dismissing the appeal in this case, and the importance of some of the questions of practice discussed by Mr. Justice Baker, lead me to record my reasons for this dissent.
I concur in the opinion in so far as it holds that appeal in criminal cases must (except as permitted in the act of 1901) be applied for during the term of the court at which final judgment is rendered. This is distinctly held by this court in Borrego v. Territory, 8 N. M. 461. After that term the sole method of review is by writ of error sued out within one year, as permitted by section 3146 of the Compiled Laws. The Legislature, however, by the passage of chapter 99 of the Session Laws of 1901 distinctly extended the time for taking appeal by providing that upon the written dismissal of an appeal the appellant might at any time within one year from the date of the judgment sought to be reviewed take out a new appeal. The appellant in this case did that, and having sued out his appeal seasonably under the terms of the act of 1901, he is entitled to all the benefits following from such appeal. I am unable to concur in the view that the repeal of the act of 1901 by the act of March 10, 1903 (chapter 26 of the Session Laws of 1903.) put an end to the appeal. At the date of the passage of the repealing act appellant had already taken his appeal and secured from the act of 1901 all the benefits which it-could give him. The repealing act of 1903 simply said that in the future no appeals were to be taken out as permitted by the act of 1901. It did not say that appeals already taken out should be ineffectual. It did not pretend to be retroactive in character. The case at bar is clearly distinguishable from the two decisions of the Supreme Court of the United States cited by Mr. Justice Baker. These were cases where, pending an appeal to the Federal Supreme Court, Congress passed an act taking away from that court jurisdiction to hear that class of appeals. There was no reservation in favor of pending appeals and it was held by the Supreme Court, when the appeals came on for hearing, that it had no jurisdiction to entertain them and they were dismissed. Thus, in the first case (Ex parte McCardle, 7 Wall. 506) Congress, pending an appeal from the circuit court in a habeas corpus case, repealed the act giving the Supreme Court appellate''jurisdiction in that class of case, and it was held that the appeal must be dismissed. So also in Railroad v. Grant, 98 U. S., where an appeal was taken from a judgment for $2,250, and pending the appeal jurisdiction was taken from the Supreme Court in cases involving less than $2,500, the appeal was dismissed. As was said by Mr. Chief Justice Waite in that case: “The appeal or the writ remains in full force hut we dismiss the suit because our jurisdiction is gone.” But in the present case there is no attempt to take away jurisdiction from this court. The act of 1901 leaves undisturbed our power to deal Avith all criminal appeals; and as this appeal was confessedly sued out regularly, as, under Railroad v. Grant, it “remains in full force” and as the jurisdiction of this court to hear it has not been in the least diminished, I am of the opinion that this court has full power to entertain the appeal. It has been suggested that the holding of this court in the case of Territory v. Hall, 67 Pac. 732, is fatal to this appeal in that it is there said that the act of 1901 has no application to criminal cases. I am of opinion, however, that the intimation of the court to that effect in the Hall case was purely dicta and was not intended by the court as an adjudication of the question. But assuming that the Hall case so decided, there is no justification in the statute for the decision. The act of 1901 in express terms applies to “all cases,” which manifestly includes criminal cases. The motion to dismiss the appeal should be denied.
Coming now to the motion made by the Government to strike out the bill of exceptions, I am of opinion that this is well taken. The statute (sec.896) provides that the bill of exceptions shall be settled and signed “at least ten days before the term of the Supreme Court in which said cause shall be first docketed.” We must assume that the Legislature advisedly used the word “first.” It was evidently to cover cases where parties having sued out an appeal to one term of the court dismiss the same and secure a writ of error, within the year, returnable to a second term, and it equally applies to the present case where a second appeal is prosecuted. The purpose of this provision was to guard against unnecessary delay in settling bills of exceptions. The act of 1901 while regulating the time for taking appeals made no enlargement of the time for settling the bill of exceptions. In this case the cause was first docketed to the January, 1903, term. The bill of exceptions should thus have been settled ten days before that term. It was not settled until December 24, 1903, nearly a year later. The motion to strike out the bill of exceptions should therefore he sustained.
This leaves only the record proper. An examination of this reveals no error. The judgment of the court below should he affirmed.