BENITO LOVATO, Piff. in Err., v. STATE OF NEW MEXICO.

In the district court of the territory of New Mexico the accused, on May 9th, 1910, pleaded not guilty to an indictment for murder. On May 24, 1911, without withdrawing his plea, he demurred to the indictment on the ground that it charged no offense. The demurrer was overruled, and, both parties announcing themselves ready for trial, a jury was impaneled and sworn and the witnesses for both sides were called and sworn. The record then states: 'That thereupon it appearing to E. C. Abbott, Esq., district attorney, that defendant had not been arraigned and had not plead since the overruling of defendant's demurrer, upon motion the court dismissed the jury and directed that the defendant be arraigned and plead.' The accused was accordingly again at once arraigned and pleaded not guilty, and, both sides again announcing themselves ready for trial, the same jury previously impaneled was sworn and the trial proceeded. At the close of the evidence for the prosecution the defendant moved for a directed verdict on the ground, among others, that the record showed that he had been formerly placed in jeopardy for the same offense, since it appeared that in the same case a jury had been impaneled and sworn and thereafter had been dismissed from a consideration of the case. The motion was denied and a conviction of manslaughter followed. The same ground was relied upon in a motion in arrest of judgment which was denied, and from the judgment and sentence subsequently entered an appeal was prosecuted to the supreme court of the territory.

Pending the appeal New Mexico was admitted to the Union and the case was heard by the supreme court of the state. In that court, in addition to the contention as to former jeopardy, the accused urged that he had been denied due process of law and had been deprived of the right to a trial by jury because from the record it appeared that although a jury was impaneled before he was arraigned and pleaded not guilty, that jury was dismissed and it did not appear that any jury was impaneled after his arraignment and plea. The court held this contention to be without merit and concluded from a consideration of the commonlaw doctrine of former jeopardy, in the light of which it deemed the constitutional provision on the subject was to be construed, that the question concerning it was raised too late, since it was first presented to the trial court after the conclusion of the state's case. To the judgment of affirmance giving effect to these conclusions this writ of error was prosecuted. 17 N. M. 666, L.R.A. 1917A, 1226, 134 Pac. 222.

As the case was tried in a territorial court, the denial of asserted rights based upon the 5th and 6th Amendments presents questions within our jurisdiction.

Without expressing any opinion as to the correctness of the ruling of the court below concerning the failure to promptly raise the question of former jeopardy, although on this record it may be conceded it presents a Federal question, we pass from its consideration, since we think the contention that the accused was twice put in jeopardy is wholly without merit. Under the circumstances there was, in the best possible view for the accused, a mere irregularity of procedure which deprived him of no right. Indeed, when it is borne in mind that the situation upon which the court acted resulted from entertaining a demurrer to the indictment after a plea of not guilty had been entered and not withdrawn, it is apparent that the confusion was brought about by an overcautious purpose on the part of the court to protect the rights of the accused. Whether or not, under the circumstances, it was a necessary formality to dismiss the jury in order to enable the accused to be again arraigned and plead, the action taken was clearly within the bounds of sound judicial discretion. United States v. Perez, 9 Wheat. 579, 580, 6 L. ed. 165, 166; Dreyer v. Illinois, 187 U. S. 71, 85, 86, 47 L. ed. 79, 86, 23 Sup. Ct. Rep. 28, 15 Am. Crim. Rep. 253. See United States v. Riley, 5 Blatchf. 204, Fed. Cas. No. 16,164, in which the facts were in substance identical with those here presented.

As to the contention concerning the denial of due process and the right to jury trial, it is not disputed that in the first instance a jury was legally impaneled. The argument is, however, that constitutional rights of the accused were violated because, after the order of dismissal and the plea of not guilty, there was a failure to impanel a jury, although the same jury previously drawn was at once sworn and tried the case. But we think the absolute want of merit in the proposition is manifest from its mere statement, and is additionally demonstrated by what we have previously siad.

Affirmed.