Statement of the Case. GONZALES v. CUNNINGHAM. APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF NEW MEXICO. No. 643. Submitted December 7, 1896. Decided December 21, 1896. An appeal lies to this court from a final order of the Supreme Court of the Territory of New Mexico, ordering a writ of habeas corpus to be discharged. The cases deciding that there is a want of jurisdiction over a similar judgment rendered in the District of Columbia are reviewed, and it is held that the legislation in respect of the review of the final orders of the territorial Supreme Courts on habeas corpus so far differs from that in respect of the judgments of the courts of the District of Columbia, that a different rule applies. Section 1852 of the Compiled Laws of New Mexico of 1884 which provides that "when any justice of the Supreme Court shall be absent from his district, or shall be in any manner incapacitated from acting or performing any of his duties of judge or chancellor, in his district, or from holding court therein, any other justice of the Supreme Court may perform all such duties, hear and determine all petitions, motious, demurrers, grant all rules and interlocutory orders and decrees, as also all extraordinary writs in said district," was within the legislative power of the assembly which enacted it, and is not inconsistent with the provision in the act of July 10, 1890, c. 665, 26 Stat. 226, for the assignment of judges to particular districts, and their residence therein; and while, for the convenience of the public, it was provided in the organic act, that a justice should be assigned to each district and reside therein, there was no express or implied prohibition upon any judge against exercising the power in any district other than the one to which he had been assigned, and there was nothing in the language of the provision requiring such a construction as would confine the exercise of the power to the particular justice assigned to a district when he might be otherwise incapacitated. In that territory a trial judge may continue any special term he is holding until a pending case is concluded, even if the proceedings of the special term are thereby prolonged beyond the day fixed for the regular term. APPELLANTS were indicted at the June, A.D. 1894, term of the District Court for the county of Santa Fé, New Mexico, in the first judicial district of that Territory, for the murder of one Francisco Chaves. On the fourth of March, A.D. Statement of the Case. 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 Fé 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 Fé 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 Statement of the Case. 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. Rep. 349. The order of affirmance was set aside September 4, and a rehearing granted, and thereupon the Territory suggested diminution of the record and prayed for a certiorari, which was issued. On the ninth of September, Judge Laughlin convened a special term of the District Court in and for the county of Santa Fé, to be begun September 21, 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 23d 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 Opinion of the Court. 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. Rep. 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 Fé, 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 the 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. In re Gonzales, 46 Pac. Rep. 211. Subsequently an appeal was allowed by one of the justices of this court. Mr. Solicitor General, Mr. John P. Victory, Solicitor General of New Mexico, and Mr. H. L. Warren for the motion to dismiss or affirm. Mr. Thomas B. Catron, Mr. Samuel Field Phillips and Mr. Frederick D. McKenney opposing. MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court. This is a motion to dismiss the appeal on the ground that Opinion of the Court. appeals will not lie to this court from final orders of the Supreme Courts of the Territories on habeas corpus; and a motion in the alternative to affirm the final order sought to be reviewed because so manifestly correct that the appeal must be regarded as taken for delay only. In Cross v. Burke, 146 U. S. 82, it was held that we had no jurisdiction over the judgments of the Supreme Court of the District of Columbia in this class of cases. The statutes in relation to habeas corpus were there reviewed, and it is not necessary to go over them again in detail. By section 763 of the Revised Statutes it was provided that an appeal to the Circuit Court might be taken from decisions on habeas corpus: (1) In the case of any person alleged to be restrained of his liberty in violation of the Constitution or of any law or treaty of the United States; (2) in the case of the subjects or citizens of foreign States, when in custody, as therein set forth. By section 764 an appeal from the Circuit Court to this court might be taken in "the cases described in the last clause of the preceding section." Section 705 of the Revised Statutes read: "The final judg ment or decree of the Supreme Court of the District of Columbia, in any case where the matter in dispute, exclusive of costs, exceeds the value of one thousand dollars, may be reexamined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same manner and under the same regulations as are provided in cases of writs of error on judgments, or appeals from decrees rendered in a Circuit Court." Section 846 of the Revised Statutes of the District of Columbia was as follows: "Any final judgment, order or decree of the Supreme Court of the District may be reëxamined and reversed or affirmed in the Supreme Court of the United States, upon writ of error or appeal, in the same cases and in like manner as provided by law in reference to the final judg ments, orders and decrees of the Circuit Courts of the United States." On February, 25, 1879, an act was passed which provided: "The final judgment or decree of the Supreme Court of the |