Territory of New Mexico v. Herrera

Citations

• 11 N.M. 129

Syllabus

<p>SYLLABUS.</p> <p>1. In a criminal case, where, under one caption, the record recites, “Come again the parties in the above entitled cause and come also the jury . . . hear the remainder of the evidence . '. . and after due deliberation return into court their verdict which is . . . And comes now the defendant in his own proper person . . . and gives notice of motion for new trial,” it conclusively and affirmatively appears from the record that defendant was present in court when the verdict was rendered by the jury.</p> <p>2. In such a case, where, by a stipulated record, settled and certified as stipulated and not purporting to be a full and complete transcript of record, it is not made affirmatively to appear either that defendant was present in court at the time an order was made setting said case for trial, or that a legal order of continuance of said case was entered, this court will not presume that from a full and complete transcript of the record it would not affirmatively appear either that defendant was present at the time such order setting the case for trial was made or that a proper order of continuance was entered; the true doctrine, on the contrary, being that in courts of general jurisdiction all the details of the trial are presumed to be regular and sufficient to sustain the judgment until the contrary is shown.</p> <p>3. In a capital case, it is deemed essential at the common law that defendant be asked by the court before judgment is passed whether he has anything to say why the sentence of the court should not be pronounced upon him, and where it does not affirmatively appear from the certified transcript of a record which purports to set forth the judgment and sentence of the court, that such inquiry was made of the defendant at such time, the judgment will be reversed: But a reversal on the ground of the failure of the trial court to make this inquiry only affects the sentence and judgment, and leaves the verdict and all precedent proceedin