# Borrego v. Cunningham

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United States Supreme Court
164 U.S. 612
Borrego v. Cunningham
Appellants were indicted at the June, A. D. 1894, term of the district court for the county of Santa F e, N. M., in the First judicial district of that territory, for the murder of one Francisco Chaves. On the 4th of March A. D. 1895, Hon. N. B. Laughlin, associate justice of the supreme court of the territory of New Mexico, assigned to the First judicial district thereof,-the regular December term of the court not having been held,-convened 'a special term of the district court for the county of Santa F e in and for the First judicial district in and for the territory of New Mexico,' to be begun on March 18, 1895, 'for the term of four consecutive weeks, and for such further time as in the discretion of the judge of said court may be deemed proper and necessary for the disposition of any business now pending in said court, or that may come before it in the usual course of business of said court, and as provided by law.'
The indictment coming on for trial, April 23, 1895, the following order was entered:
'Now comes the said plaintiff, by her attorney, J. H. Crist, Esquire, and the said defendants come in their own proper person, attended by their counsel, Catron & Spiess, and the judge of the court, Honorable N. B. Laughlin, considering himself disqualified from presiding at the trial of this cause, owing to the fact of his having been connected with the prosecution herein previous to his appointment as judge, resigns the bench to the Honorable H. B. Hamilton, associate justice of the supreme court of the territory of New Mexico, and judge of the Fifth judicial district court thereof. Thereupon the said district attorney, on behalf of said territory, and T. B. Catron, Esquire, on behalf of said defendants, agree that no objections shall be hereafter raised in case the Honorable N. B. Laughlin remains within this judicial district during the trial of this cause; and thereupon, a jury not having been obtained for the trial of this cause, the jurors already called are placed in the custody of the sheriff of the county of Santa F e until to-morrow morning, at ten o'clock.'
The trial of the case, commencing on that day, continued until May 29, 1895, when the jury found the defendants guilty as charged in the indictment; and, motions in arrest of judgment and for new trial having been submitted and denied, judgment was entered on the verdict, and defendants sentenced to be executed. To review this judgment and sentence, defendants sued out a writ of error from the supreme court of the territory, and the judgment was affirmed, September 1, 1896. 46 Pac. 349. The order of affirmance was set aside September 4th, and a rehearing granted, and thereupon the territory suggested diminution of the record, and prayed for a certiorari, which was issued. On the 9th of September, Judge Laughlin convened a special term of the district court in and for the county of Santa F e, to be begun September 21st, for the term of two consecutive weeks, or such further time as might be deemed necessary, 'for the purpose of hearing and determining all causes that may be pending in said court, both civil and criminal; and any business pending in said court, or that may come before it in the usual course of business of said court, will be taken up and acted upon and disposed of in the same manner as at a regular term of said court, and as provided by law.'
On September 22, 1896, in the said special term, Judge Hamilton presiding, the motion of the territory of New Mexico for an order directing the clerk 'to make a proper and sufficient entry in the records of the proceedings of this court had on the 23d day of April, 1895, of the arraignment in said court at said time of the said defendants above named, upon the indictment in said cause, and of their respective pleas of not guilty thereto,' came on to be heard; and it appearing to the court, from evidence adduced, the recollection of the presiding judge, and certain notes and memoranda deposited with the clerk in pursuance of law, that the record 'is not a full and correct record of the proceedings had in said court upon said date in said cause,' in that the record failed to show the arraignment of the defendants and their respective pleas of not guilty, it was ordered 'that the said proceedings be entered now upon the records of this court in this cause as of the 23rd day of April, 1895, according to the facts thereof'; and the arraignment and pleas were set forth in said order. This order, together with the order convening the special term at which it was entered, having been returned to the supreme court of the territory, that court, on September 24, 1896, the cause coming on to be heard on the rehearing, 'and upon the amended record,' again affirmed the judgment and sentence of the district court, and fixed a day of execution. 46 Pac. 361. Thereupon the defendants (plaintiffs in error), on the same day, filed a petition in the supreme court of the territory of New Mexico for a writ of habeas corpus, alleging, among other things, that they were unlawfully restrained of their liberty, pursuant to the judgment of the district court of the First judicial district of New Mexico sitting within the county of Santa F e, inasmuch as the district court was without jurisdiction to render the judgment, the verdict and judgment thereon being coram non judice, because the special term of the district court at which they were rendered overreached and conflicted with the regular terms of the court; the record did not show that defendants had been arraigned, and the amendment was improperly made; the judge of the Fifth judicial district court had no power or authority to preside over the First judicial district court; and that his acts, while so presiding, were absolutely null and void. The writ of habeas corpus was issued, and on consideration of the sheriff's return to the writ, and petitioners' answer thereto, it was ordered that the writ be discharged, and the petitioners remanded to custody, to be dealt with in pursuance of the judgment, conviction, and sentence. From this order, petitioners prayed an appeal, which was denied for reasons then stated. 46 Pac. 211. Subsequently an appeal was allowed by one of the justices of this court.
Thomas B. Catron, Samuel F. Phillips, and Frederic D. McKenney, for appellants.
H. L. Warren and Holmes Conrad, for appellee.
Mr. Chief Justice FULLER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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