Smith, C. J.
This case was brought up to this court from the district court of the county of Santa Ee by writ of error. It is now before us upon motion by the territory through its solicitor general, to quash the writ of error and affirm the judgment of the court below for the alleged reason that appeal is the only process by which criminal cases can be brought up from the district courts to this court for review.
„ ... “ourtsbVwdtof cases! st°ay”fnal execution. The organic act authorizes the review of the judgment by writ of error. This motion presents the question: Are the judgments of the district courts of the territory of New Mexico, in criminal cases, reviewable in the supreme court by writ of error or appeal? The organic act vests the supreme and district courts with common law and chancery jurisdiction. Sec. 1868, Rev. Stat. U. S.
And provides that “writs of error, bills of exceptions and appeals shall be allowed in all cases, from the final decisions of the district courts to the supreme courts of all the territories, respectively, under such regulations as may be prescribed by law.” Sec. 1869, Rev. Stat. U. S.
It is elementary that the mode employed at common law, for the review of common law cases, is by writ of error, and decisions in chancery by appeal. Hence, the territorial courts being vested with common law jurisdiction by the organic act, the decisions of the district courts are reviewed in the supreme court, in common law cases, by writ of error, and in chancery cases by appeal.
At common law the review of a judgment in a criminal case could be by writ of error and in no other way. Rice v. Rex, Cro. Jac. 404; Rex v. Seton, 7 T. R. 373; Rex v. West Riding, etc., 7 T. R. 467; Reg v. Carlisle, 2 B. & Ad. 971; State v. Shepard, 37 Wis. 395.
Permission from the crown was, however, in criminal cases, always necessary to maintain the writ in England. This permission was granted as of right in misdemeanor, while in treason or felony it was a matter of grace from the sovereign, who could withhold or allow at pleasure, though there was manifest error in the record.
The reason assigned for this was that the felon had forfeited all he had to the crown, and the crown could exercise its pleasure-whether or not to give it back. Rex v. Earberry, Fort, 37.
The method of procuring a review when this grace was extended was always by writ of error and in no other way.
In the United States, forfeitures not being one of the penalties visited upon the felon, the writ is awarded by the courts as of course wherever it would have been granted in England by fiat of the crown. Sec. 1362, 1 Bishop, New Crim. Proc.
Congress, in preserving to litigants the right of review by writ of error undoubtedly must have had in mind the writ of error as the same was employed by common law, because it conferred common law jurisdiction upon the court wherein it was to be made use of, and left it to our legislature to regulate the manner of taking and allowing the same.
This, our legislature has done by the enactment of section 2194, Compiled Laws, -which provides: “The clerk of the supreme court shall issue a writ of error to bring into tbe supreme court any cause finally adjudged or determined in any of the district courts, upon a praecipe therefor * * * at any time within • one year from the date of such judgment * * *” And section 2199: “Hereafter no writ of error shall be allowed by the supreme court of this territory, except within one year after the rendition of the judgment on which said writ of error is based; and that said supreme court shall make rules for the govern-' ment of the practice in writs of error in common law cases, which said rules shall not conflict with any of the laws in force in this territory.”
The terms “writs of error” and “appeals,” as they appear in the organic act, have a technical significance well known to the law. It is then provided that they “shall be allowed in all cases” and are guaranteed parties in all cases.
Something' having definiteness and substance is secured to the court and to the parties before it by this language; and it is put beyond the power of the territorial legislature to deny,, alter, or curtail. The jurisdiction is fixed by the organic act, the power to regulate the procedure is reposed in the legislature. It can not be contended that congress has, in one and the same form of expression, secured to the supreme court a certain jurisdiction and to parties certain rights, and given to the territorial legislature the power to make that jurisdiction nugatory and these rights unavailing.
This provision, with its imperative phraseology, intends nothing short of assuring to the appellant, not whatever the territorial legislature may be pleased to call an appeal,,but an appeal known to chancery, and assuring to the plaintiff in error the writ of error with all the benefits growing out of, and incident to, such writ.
What congress had given, it has not authorized the territorial legislature to take away by regulations. The allowance of the writ of error may be regulated by the legislature, as has been done; but these regulations must not derogate from the nature and substance of the thing given it to regulate. Whatever the territorial legislation on this subject is, or may have intended, it can not have taken from the supreme court jurisdiction to review cases cognizable at common law by writ of error.
The power given by the organic act to the legislature to regulate writs of error and appeals is not operative to enable the legislature to limit or to regulate what is fixed and assured by the same organic act.
The power to regulate does not confer power to abrogate. Our legislature has not, however, made any attempt to interfere with or deny the jurisdiction conferred upon the supreme court by the organic act, but on the contrary has regulated such jurisdiction by sections 2193 and 2194, Compiled. Laws. In providing for appeals from final judgments in criminal cases, it has merely given a concurrent remedy.
In United States v. Horace C. Gibson, 1 Idaho, 364, the court reached the conclusion that a common law action could not be re-examined on appeal, but must be brought up by writ of error, in the following opinion:
“The courts of this territory are created by the organic act, and their jurisdiction and powers must be ascertained by the provisions of said act and the laws of the territory passed in pursuance thereof. Both the district and supreme courts are by the express terms of the act clothed with chancery and common law jurisdiction ; and the legislature has no authority to abridge such jurisdiction, nor has the legislative assembly made any attempt so to do * * *. How shall this appellate jurisdiction be exercised? The organic act, in very plain and positive language, declares that writs of error, bills of exceptions and appeals shall be allowed in all eases from the final decisions of the district courts to the supreme court,- under such regulations as may be prescribed by law. Congress, therefore, has not delegated the power to the legislature to say in ■what cases writs of error and appeals may be allowed, but has emphatically declared in language that is plain, that they shall be allowed in all cases.
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Smith, C. J.
This case was brought up to this court from the district court of the county of Santa Ee by writ of error. It is now before us upon motion by the territory through its solicitor general, to quash the writ of error and affirm the judgment of the court below for the alleged reason that appeal is the only process by which criminal cases can be brought up from the district courts to this court for review.
„ ... “ourtsbVwdtof cases! st°ay”fnal execution. The organic act authorizes the review of the judgment by writ of error. This motion presents the question: Are the judgments of the district courts of the territory of New Mexico, in criminal cases, reviewable in the supreme court by writ of error or appeal? The organic act vests the supreme and district courts with common law and chancery jurisdiction. Sec. 1868, Rev. Stat. U. S.
And provides that “writs of error, bills of exceptions and appeals shall be allowed in all cases, from the final decisions of the district courts to the supreme courts of all the territories, respectively, under such regulations as may be prescribed by law.” Sec. 1869, Rev. Stat. U. S.
It is elementary that the mode employed at common law, for the review of common law cases, is by writ of error, and decisions in chancery by appeal. Hence, the territorial courts being vested with common law jurisdiction by the organic act, the decisions of the district courts are reviewed in the supreme court, in common law cases, by writ of error, and in chancery cases by appeal.
At common law the review of a judgment in a criminal case could be by writ of error and in no other way. Rice v. Rex, Cro. Jac. 404; Rex v. Seton, 7 T. R. 373; Rex v. West Riding, etc., 7 T. R. 467; Reg v. Carlisle, 2 B. & Ad. 971; State v. Shepard, 37 Wis. 395.
Permission from the crown was, however, in criminal cases, always necessary to maintain the writ in England. This permission was granted as of right in misdemeanor, while in treason or felony it was a matter of grace from the sovereign, who could withhold or allow at pleasure, though there was manifest error in the record.
The reason assigned for this was that the felon had forfeited all he had to the crown, and the crown could exercise its pleasure-whether or not to give it back. Rex v. Earberry, Fort, 37.
The method of procuring a review when this grace was extended was always by writ of error and in no other way.
In the United States, forfeitures not being one of the penalties visited upon the felon, the writ is awarded by the courts as of course wherever it would have been granted in England by fiat of the crown. Sec. 1362, 1 Bishop, New Crim. Proc.
Congress, in preserving to litigants the right of review by writ of error undoubtedly must have had in mind the writ of error as the same was employed by common law, because it conferred common law jurisdiction upon the court wherein it was to be made use of, and left it to our legislature to regulate the manner of taking and allowing the same.
This, our legislature has done by the enactment of section 2194, Compiled Laws, -which provides: “The clerk of the supreme court shall issue a writ of error to bring into tbe supreme court any cause finally adjudged or determined in any of the district courts, upon a praecipe therefor * * * at any time within • one year from the date of such judgment * * *” And section 2199: “Hereafter no writ of error shall be allowed by the supreme court of this territory, except within one year after the rendition of the judgment on which said writ of error is based; and that said supreme court shall make rules for the govern-' ment of the practice in writs of error in common law cases, which said rules shall not conflict with any of the laws in force in this territory.”
The terms “writs of error” and “appeals,” as they appear in the organic act, have a technical significance well known to the law. It is then provided that they “shall be allowed in all cases” and are guaranteed parties in all cases.
Something' having definiteness and substance is secured to the court and to the parties before it by this language; and it is put beyond the power of the territorial legislature to deny,, alter, or curtail. The jurisdiction is fixed by the organic act, the power to regulate the procedure is reposed in the legislature. It can not be contended that congress has, in one and the same form of expression, secured to the supreme court a certain jurisdiction and to parties certain rights, and given to the territorial legislature the power to make that jurisdiction nugatory and these rights unavailing.
This provision, with its imperative phraseology, intends nothing short of assuring to the appellant, not whatever the territorial legislature may be pleased to call an appeal,,but an appeal known to chancery, and assuring to the plaintiff in error the writ of error with all the benefits growing out of, and incident to, such writ.
What congress had given, it has not authorized the territorial legislature to take away by regulations. The allowance of the writ of error may be regulated by the legislature, as has been done; but these regulations must not derogate from the nature and substance of the thing given it to regulate. Whatever the territorial legislation on this subject is, or may have intended, it can not have taken from the supreme court jurisdiction to review cases cognizable at common law by writ of error.
The power given by the organic act to the legislature to regulate writs of error and appeals is not operative to enable the legislature to limit or to regulate what is fixed and assured by the same organic act.
The power to regulate does not confer power to abrogate. Our legislature has not, however, made any attempt to interfere with or deny the jurisdiction conferred upon the supreme court by the organic act, but on the contrary has regulated such jurisdiction by sections 2193 and 2194, Compiled. Laws. In providing for appeals from final judgments in criminal cases, it has merely given a concurrent remedy.
In United States v. Horace C. Gibson, 1 Idaho, 364, the court reached the conclusion that a common law action could not be re-examined on appeal, but must be brought up by writ of error, in the following opinion:
“The courts of this territory are created by the organic act, and their jurisdiction and powers must be ascertained by the provisions of said act and the laws of the territory passed in pursuance thereof. Both the district and supreme courts are by the express terms of the act clothed with chancery and common law jurisdiction ; and the legislature has no authority to abridge such jurisdiction, nor has the legislative assembly made any attempt so to do * * *. How shall this appellate jurisdiction be exercised? The organic act, in very plain and positive language, declares that writs of error, bills of exceptions and appeals shall be allowed in all eases from the final decisions of the district courts to the supreme court,- under such regulations as may be prescribed by law. Congress, therefore, has not delegated the power to the legislature to say in ■what cases writs of error and appeals may be allowed, but has emphatically declared in language that is plain, that they shall be allowed in all cases. The act, however, does not prescribe the mode in which the;* shall be' allowed, but expressly provides that they shall be allowed under such regulations as may be prescribed by law, thus giving to the legislature the power to prescribe the regulations as to the manner in which they may be taken and allowed.”
“The declaration of the act is that writs of error, bills of exception, and appeals shall be allowed. These words have a technical and well understood meaning. ‘Writs of error’ are known to common law proceedings, but an appeal is not; but writs of error and appeals are the modes pointed out by congress whereby common law, equity, and admiralty causes may be reviewed and re-examined in the supreme court; and when congress used these words in the organic act, it must be considered that they used them in accordance with the sense that had been given them by the supreme court of the United States. There is no doubt but that they were so used and intended to be understood, in the same section, in providing for the writs of error and appeals from this court to the supreme court of the United States.”
“If this be the sense in which these words were used, it follows that the true interpretation of that clause of the organic act is this — that writs of error and bills of exceptions shall, in suits at common law, be allowed and taken, and appeals in equity and admiralty cases shall be allowed from the district to the supreme court; and that the power is conferred upon the legislature to regulate the manner and prescribe the rules of practice in taking and allowing them.”
II. Remedy by writ of error is concurrent with remedy by appeal.
In criminal cases the common law, as recognized by the United States and the several states of the union, shall be the rule of practice and decision. Sec. 2484, Comp. Laws.
Under the common law, as we have already seen, the writ of error was the method by which a judgment in a criminal cause could be reviewed.
By providing that the common law, as recognized by the United States and the several states of the union, should be the rule of practice and decision in the territory, the legislature lias vested the supreme court with jurisdiction to review judgments in criminal cases by writ of error.
In Barrett v. State, 36 Me. 198, the court say: “Although the remedy by appeal in civil cases takes away the remedy by writ of error, by implication, as a general rule, yet in criminal cases the reason for the rule ceases, and there it does not apply * * *. His remedy for appeal would often be more onerous than that by writ of error to reverse an erroneous judgment, and, therefore, it is that his right to proceed by error is not taken away or impaired by giving him the right of appeal.” Citing Cook, Pet., 15 Pick. 239; Thayer v. Com., 12 Metc. 9; Co. Lit., 288; 3 Blacks. Com. 407.
In United States v. Plumer, 3 Clifford, 1, at page 58, Judge Clifford said:
“At common law the writ of error would lie in criminal as well as in civil cases, and that the rule was just as applicable to misdemeanors as the case at b.ar (murder), which was declared by act of congress to be a felony.”
In Sanders v. State, 85 Ind. 318, at page 257, the court say:
“It is held in well considered cases that although there is a statute governing proceedings 'in criminal cases, the writ is not abolished unless the statute specially or by implication abrogates it. This is so held, with respect to writs eoram nobis, by Marshall, C. J., in Strode v. Stafford, 1 Brock., U. S. C. 162. In speaking of the claim that the writ, coram nobis can not exist under the statute, Cowen, J., said in Smith v. Kingsley, 19 Wend. 620: ‘There is no statute expressly and in terms repealing its power, nor any which does by necessary implication. Mere silence or omission to regulate proceedings upon such a writ will not operate as a repeal. The power, therefore, remains as at common law, except as to the mhre form coram nobis resident, because the fiction of the record, remaining before the King himself, is gone. We, therefore, have lost the name of.the writ, but nothing more.’ ”
In many of the states the common law writ of érror is recognized as forming part of the law. Holford v. Alexander, 12 Ala. 280; Adler v. State, 25 Ark. 517; McKinney v. Western, etc., 4 Iowa, 420; Hawkins v. Bowie, 9 Gill. & J. 428; Fellows v. Griffin, 9 Sm. & M. 362; Calloway v. Nifong, 1 Mo. 223; Reid’s Adm’r v. Strides, Adm’r, 7 Grat. 76; Dows v. Harner, 6 Ohio, 518; Wood’s Exec. v. Caldwell, 34 Penn. St. 92.
III. Our statute amply provides for a review of the judgment by writ of error.
Kearney’s code, promulgated by General Kearney in 1846, and which was by the legislature of 1850 adopted, contains the only provision for appeals from final judgments in criminal cases. These provisions were incorporated into the compiled laws of 1884, as sections 2468, 2469, 2470, 2471, 2472 and 2473.
By section 2469 appeals are allowed from final-judgments rendered upon any indictment, to the supreme court, if applied for during the term at which the judgment was rendered. Appeals only lie from such final judgments if allowed during the term at which the judgment was rendered. After the term has expired no appeal can betaken.
In 1880 the legislature passed a comprehensive act, regulating the mode of taking appeals and suing out writ of error. This act is compiled in sections 2193 and 2194 of the Compiled Laws of 1884, and is in conformity with the organic act which gives the legislature power to regulate the writ of error and appeal, By that act it was provided that all causes either in law or equity, finally adjudged or determined in the district court, may be removed into the supreme court of the territory for review either by appeal or writ of error. Sec. 2193, Comp. Laws 1884. The next section, 2194, regulates the practice on appeal and writ of error, and provides that the writ of error may be sued out within one year from the date of the judgment brought into the supreme court. How could the language of section 2193 be made plainer for the purpose of providing for the review of judgments in criminal cases by writ of error? At.t, causes, either in law or inequity, maybe removed into the supreme court for review, either by appeal or writ of error. Criminal cases or causes at law as distinguished from causes in equity and as all causes at law may be removed into the supreme court by writ of error, it follows that criminal cases can be so reviewed.
The legislature of 1884 recognized the fact that judgments in criminal cases could be reviewed either by appeal or writ of error, under the laws as they then existed in the territory, and enacted what is compiled as section 2201 of the Compiled Laws of 1884, viz.: —
“Appellants or plaintiffs in error in criminal cases, removed into the supreme court of the territory for review, shall not be required to print the record, nor any part thereof,” etc. See Kidder v. Bennet, 2 N. M. 37.
In Missouri, 2 Wagner’s Stats., section 13, there is a provision “that the state in any criminal prosecution shall be allowed an appeal only in the cases and under the circumstances mentioned in the next succeeding sections.” Notwithstanding this provision, it was held in State v. Cunningham, 51 Mo. 479, that “when a motion to quash an indictment is sustained in the lower court, the state can bring the case to this court by writ of error or appeal.”
The solicitor general in his brief, at page 8, seems to argue that section 2193 of the Compiled Laws does not apply to criminal cases, because no provision for supersedeas or stay of execution is therein contained. This contention is wholly without merit. At common law, a writ of .error is not a supersedeas so as to discharge from custody, but in capital cases it operates to stay execution. Sec. 783, Wharton’s Crim. Prac. & Pro.
A writ of error is a supersedeas by implication. If the record of the judgment is removed by writ of error, it is necessarily a supersedeas for the record being removed it is impossible for the justices of the court in which it was to award execution. 9 Brac. Abr. Supersedeas, p. 284.
In the Bishop of Ossory’s case, 3 Crooke, 534, it was held that “a writ of error is a supersedeas, although the record itself is not removed to the court where errors are brought, but a transcript only.”
The right of appeal in a capital case is necessarily coincident with that of a stay of execution, until that appeal can be heard. State v. Pagels, 92 Mo. 300.
In Kitchen v. Randolph, 93 U. S. 86, the court say: ',“At common law, a writ of error was supersedeas by implication.”
Under the statutes and the authorities it is plain that the judgment in this cause may be reviewed by writ of error.
The motion to quash the writ of error is therefore overruled.
Collier and Bantz, JJ., concur.