United States v. Aurandt

Citations

• 15 N.M. 292
• 107 P. 1064

Syllabus

<p>SYLLABUS (BY THE COURT.)</p> <p>1. Arraignment and a plea are elements- necessary to-a valid trial of one charged- with crime.</p> <p>2. Such arraignment and plea must precede the empaneling and swearing of the jury as until plea there is no-issue for the jury to try.</p> <p>3. If, after the trial is commenced, it be discovered that there has been no arraignment or plea, it is the duty of the trial court to begin the trial anew.</p> <p>4. This last includes not only the retaking of any testimony but the re-empaneling and the re-swearing of the jury.</p> <p>5. In a prosecution under U. iS. Rev. St. Sec. 5467, an indictment is fatally defective which fails to show that the letter embezzled came into the possession of the defendant officially, that is to say, as an employe of the postal service. Shaw v. United States, 165 Fed. 174, followed.</p> <p>6. While it is permissible under certain circumstances . to allege elements of description as unknown to the grand jury, recourse to this method of pleading is justifiable only on grounds of a reasonable necessity.</p> <p>7. The allegation in the present case that the embezzled letter contained “an article of value” a more definite description of which “being to grand jurors unknown” considered in the light of the record; and doubted, but not decided, whether the allegation was sufficient under the rule last mentioned.</p> <p>8. The defendant is placed in jeopardy when after issue joined upon a valid indictment before a competent court the jury is empaneled and- sworn to try his cause.</p> <p>9. In so far as a different rule is countenanced by the statute of this Territory (C. L. Sec. 2423) providing that “a nolle prosequi cannot be entered after, any testimony has been introduced for the defendant,” such statute is unconstitutional and void.</p> <p>10. Relatively to a given charge there is, however, no former jeopardy where the- testimony necessary to sustain-the latter charge would not be admissible to sustain the forme