*

*

act of the legislature under which this indictment was found nowhere uses the word "feloniously." But the act (section 2) says: "Any person who shall draw a deadly weapon on another except it be in the lawful defense of himself, his family, or his property, or under legal authority Section 3 provides that "any person who shall unlawfully assault or strike at another with a deadly weapon And section 4 provides that "any person who shall unlawfully draw, flourish, or discharge a rifle, gun, or pistol within the limits of any settlement in this territory, except the same be done by lawful authority, or in the lawful defense of himself, his family, or his property It will be seen here that the words "lawful" and "unlawfully" are used in the statute. "Feloniously" is a technical word, which at common law was essential to every indictment for a felony charging the offense to have been committed feloniously, and no other word or circumlocution could supply its place; and it is still necessary in this territory (as the crime as here charged may be a felony under our statute) in describing a common law felony, or where its use became necessary by statute. 1 Bouv. Law Dict., and authorities there cited. In Territory v. Miera, 1 N. M. 387, Chief Justice Benedict, speaking for the court, said: "By using the word 'unlawfully' in the statute, the legislature intended to discriminate between acts of violence which may be lawful and those which are not. To the evident intention disclosed the indictment in this case should have conformed. The omission was a substantial omission, and the court below decided properly in arresting the judgment." The word "feloniously," as used in the indictment, can not be used to supply the omission of the word "unlawfully," because the statute specially provides that assaults may be committed in defense of his person or property, etc. The laws of the territory

are ample and sufficient to apprehend and punish such offenses as herein charged, and this court can not sustain insufficient indictments for felonies by which persons may be deprived of life and liberty. Every man has a constitutional right to a fair and impartial trial under the laws of the land, and it is the duty of pleaders to pursue the law in their pleadings, and it is the duty of the courts to construe statutes defining offenses known as punishments for such crimes strictly; otherwise, there would be a want of accuracy and certainty, which would result in a failure of justice in the courts.

For the above reasons, the judgment of the lower court is reversed, and the cause remanded, with an order to the court below to enter judgment sustaining the motion in arrest of judgment; and it is so ordered.

SMITH, C. J., and FREEMAN and FALL, JJ., concur.

[Nos. 587, 592. September 5, 1894.]

IN RE TERRITORY OF NEW MEXICO v. H. S. CLANCY, CLERK OF THE SUPREME COURT OF TERRITORY OF NEW MEXICO, RESPONDENT; IN RE SAME v. A. L. KENDALL, et al.; BOARD OF COUNTY COMMISSIONERS OF SANTA FE COUNTY, REspondents.

CONTEMPT OF COURT, WHAT CONSTITUTES-DISREGARD OF ORDER OF COURT BY COUNTY COMMISSIONERS ON ADVICE OF THEIR ATTORNEY.— Where the board of county commissioners of Santa Fe county, knowing that the court had initiated a process restraining them from proceeding to declare forfeited and vacant the office of sheriff and ex officio collector of said county, disregarded its order, by thereupon declaring said office forfeited and vacant, they were guilty of contempt; and the fact that they acted upon the advice of their attorney, who advised them that they were not bound to take cognizance of the order unless it was duly directed to and served upon them, and that it could not operate to suspend their proceedings against the said sheriff, did not protect them.

ID. BY ATTORNEY, ADVISING DISOBEDIENCE OF AN Order of Court.— An attorney of the court, counseling his client to disregard its order upon the technicality that it was not formally promulgated by the clerk of the court, and duly directed, was guilty of contempt, and, as an officer of the court, deserving of the severest reprehension.

ID. REFUSAL OF CLERK TO OBEY ORDER OF COURT, FOR FAILURE OF JUSTICE, ISSUING ORDER, TO FILE HIS COMMISSION AND OATH OF OFFICE. Where the clerk of the supreme court refused to obey the order of an associate justice of the court, upon the ground that the justice had not filed his commission and oath of office with him, and that he was not officially advised that the justice had duly qualified, and further refused to obey the order, after being assured by the presiding justice of the court that there was no requirement that the commission and oath of office should be recorded in the clerk's office, and that he would be fully protected in complying with the order, he was guilty of contempt.

PROCEEDINGS, under the rules of the supreme court, by the territory of New Mexico against H. S. Clancy, clerk of the supreme court, A. L. Kendall, Charles W. Dudrow, and Victor Ortega, county commissioners of Santa Fe county, to show cause why they should not be punished for contempt of court for disobeying an order from the Honorable NEEDHAM C. COLLIER, associate justice of the supreme court, directing the issuance of a writ of prohibition, prohibiting and restraining the commissioners from declaring forfeited and vacant the office of sheriff of said county. Each of the respondents was found guilty; also Charles A. Spiess, attorney for the commissioners, though it does not appear that there was any rule upon him to show cause why he should not be punished for contempt.

The facts are more fully stated in the opinions of the court.

H. L. WARREN, W. B. CHILDERS, and H. B. FERGUSSON for the prosecution.

NEILL B. FIELD for respondent, H. S. CLANCY.

T. B. CATRON and CHARLES A. SPIESS for other respondents.

OPINION IN THE PROCEEDINGS AGAINST A. L. KENDALL, C. W. DUDROW, AND VICTOR ORTEGA, COUNTY COMMISSIONERS.

PER CURIAM.-The respondents answer that they were in the afternoon of the thirteenth day of November, 1893, at their meeting, and that one H. L. Warren appeared before them, while they were holding their session, examining the accounts of W. P. Cunningham, sheriff and ex officio collector of the county of Santa Fe, and exhibited a paper, which he stated was an order from the Honorable NEEDHAM C. COLLIER, associate justice of the supreme court, ordering the issuance of a writ of prohibition out of the supreme court, prohibiting and restraining the said board from proceeding in any manner to declare forfeited and vacant the said office of sheriff and ex officio collector of said county, and stated that they did not read it, or hear it read. It is shown, however, that it was tendered to them for their inspection, and the offer was made to have it read to them, and that they refused either to receive or hear it. Respondents further state that they became cognizant in the forenoon of said thirteenth day of November, 1893, that H. L. Warren had presented the order of the said associate justice to the clerk of the supreme court, and that the said clerk had declined to issue the writ of prohibition therein directed, and that they thereupon submitted the situation to Charles A. Spiess for advice in the premises, and that the said attorney gave them the opinion that they were not bound to take cognizance of said order unless it was duly directed to and served upon them, and that it could not operate to suspend their proceedings upon the notice and citation by them to the said Cunningham; that they thereupon declared forfeited and vacant the said office of sheriff and ex officio collector for the county of Santa Fe, for the

cause alleged in the said citation, and that in so acting, and disregarding the suggestion of H. L. Warren that the said order was as obligatory upon them as though formulated into a writ with the seal of the supreme court, they intended no disrespect to this court, or any member thereof. This court is impressed that these commissioners, in ignoring their official legal

CONTEMPT of

court, what constitutes: disregard of order of court on advice of attorney.

adviser, the district attorney, and in seeking other counsel, disclosed an animus in the premises to avoid the possibility of an opinion adverse to their disposition to proceed in the execution of the purpose indicated in their notice to Cunningham, and that they must take the consequence of the ill advice they received, and upon which they acted. Cognizant that the supreme court of this territory had, through one of its members, declared doubtful their right to continue their proceedings against the said sheriff, they should have forborne to exercise further jurisdiction, no matter whether this action of the court was communicated formally, by writ duly served, or by notice of the existence of the order of the court for a writ against them. The material inquiry is whether they knew that the court had initiated the process to restrain them; and that they were so apprised, they confess. They can not protect themselves by the fact that before their action a professional opinion was given them that they had the right to act. "The fact that before publication a professional opinion was given that the publication would not be a contempt does not change the character of the defendant's defamatory article, or relieve the defendant of liability for its origin and dissemination." Myers v. State, 22 N. E. Rep. (Ohio) 43. We will, however, pay due regard to the extenuating fact that the commissioners proceeded under the advice of counsel of their own selection, and accordingly will limit the punishment for their contempt proportionately to their