United States v. Hall

5 N.M. 178

• Court: New Mexico Supreme Court
• Decided: January 21, 1889
• Docket: No. 365
• Status: Published

Opinions

Henderson, J.

derdyo^admmcongress, june It is contended on behalf of the appellant that the probate court clerks in this territory have power to administer oaths to witnesses in the class of cases mentioned in the indictment, and in support of this contention the act of congress of June 9, 1880, is cited. The act is as follows: “That the affidavit required to be made by the section twenty-two hundred and sixty-two and twenty-three hundred and one of the Revised Statutes of the United States may be made before the clerk of the county court, or of any court of record of the county and state or district and territory in which the lands are situated.” The argument is ' that the clerk of the probate court of Socorro county was either a county court clerk or a clerk of a court of record, and that, if either, he was competent under the act of congress to administer the oath. The statement in the indictment is that the person administermg the oath was a deputy of the probate clerk in Socorro county, in this territory. It was doubtless the intention of the pleader to charge that E. V. Chavez was clerk of the probate court of Socorro county. Waiving any discussion of this mere matter of form, we will look into the intention of congress in the passage of the act of June 9, 1880, and ascertain, if possible, the real purpose had in view. A clerk of a county court is authorized in express terms to administer the oath. The clerk in this case was the clerk of the probate court'. There is no county court in New Mexico, within the meaning of the statutes of the different states and territories of the United States, where courts of that kind exist and are known .by that name. These courts are not modeled after the system of, county courts at one time prevailing in England. In that country county courts are of very great antiquity. See Bouv. Law Diet. “County Courts;” 3 Bl. Comm. 83. In the United States, county courts are usually of limited jurisdiction, and confined to the fiscal and other local concerns of the county. Courts of probate are usually invested with a wholly different jurisdiction, such as the probate of wills, granting letters testamentary and of administration, the administration of the estates of deceased persons, guardianships, and subjects of a kindred nature. Probate courts in America more nearly resemble the ecclesiastical courts of England than the county courts of that country. We can not think it was the intention of congress, in using the phrase “county courts,” to have intended the probate courts of the county, when there is nothing in the act that points in any way to' that construction.

In a criminal case the pleader must bring the defendant clearly within the intention of the law, and within the words of the statute, if the offense be founded upon the statute alone. U. S. v. Cruikshank, et al., 92 U. S. 542. Is the probate court a court of record? We think not. Bouvier defines a “court of record” in the following terms: “A judicial, organized tribunal, having attributes, and exercising functions, independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of the common law.” Law Diet., tit. “Courts of Record." The essential characteristic of a court of record is that it proceeds “according to the course of the common law." Ex parte Thistleton, 52 Cal. 224; Thayer, v. Com., 12 Metc. 11. The probate courts do not proceed according to the course of the common law, but are of special, peculiar, and limited jurisdiction. Arellano v. Chacon, 1 N. M. 271; Moore v. Koubly, 1 Idaho, 61; Ferris v. Higley, 20 Wall. 381, 382; Adams v. Lewis, 5 Sawy. 230; Hart v. Gray, 3 Sum. 341; Mathewson v. Sprague, 1 Curt. 461. Being courts of limited jurisdiction, they have no powers except such as are necessary to the exercise of their special, peculiar, and limited jurisdiction. Peoria v. People, 20 Ill. 530. The case of Fowler et al. v. Merrill, 11 How. 375, cited by appellant, is not opposed to anything here cited. That was an exception to a deposition in a civil case, and the construction given the statute there, if the case be in any way in point, can not be regarded as authority in a criminal case, where a strict, rather than a liberal, construction must prevail. The interpretation given by the officers of the interior department at Washington in allowing proofs to be made before clerks of the probate courts can have no influence upon the courts in a criminal case, where the language used in a statute of the United States must be construed according to its real meaning, and according to well-known canons of interpretation applicable to the case before the court. Affirmed.

Long, C. J., dissents.