Opinion of the Court.

each district "by one of the justices of the Supreme Court," and that the organic law did not require that it should be exercised by any particular one of the justices; that while for the convenience of the public it was provided 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 that 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. 46 Pac. Rep. 363. We concur in these views, and are unable to perceive any want of jurisdiction on the part of the District Court in the proceedings had against petitioners, or any violation of the Constitution or laws of the United States in that regard.

And this disposes of the objection that the amendment of the record so as to show the arraignment and pleas of defendants was improvidently made. Jurisdiction existed, and the action of the District Court and its recognition by the Supreme Court were in accordance with the rule as to entries nunc pro tunc. In re Wight, 134 U. S. 136; United States v. Vigil, 10 Wall. 423.

It is insisted, however, that jurisdiction to render the judg ment was lacking because of the expiration of the special term or its termination by conflict with the regular terms of the District Court before the trial was concluded.

The sections of the compiled laws of New Mexico of 1884 bearing on this subject and the first section of the Territorial act of February 22, 1893 (Laws New Mex. 1893, p. 51, c. 34), are given in the margin.1

1§ 543. The terms of the district courts shall be held in the several counties of this Territory, beginning at the times hereinafter fixed and continuing until adjourned by order of the court. . . ."

"§ 551. Whenever any regular term of the district court for any county in this Territory shall for any cause fail to be held, the judge of the district in which such failure shall have taken place, or, in the absence of any such resident judge, then any district judge in this Territory, if he deem it advisable and necessary to hold a special term of said court for such county, may order a special term to be held at the court-house of said

Opinion of the Court.

These compiled laws were prepared by a commission authorized to make "a careful and accurate compilation of all of the laws, general, local and private, which shall be in force on the fifth day of May, 1884," and the commissioners were careful, as they say in the preface to their work, to avoid "making changes in any original law." The compilation of general laws embraced the revision of 1865 and the session laws thereafter. Section 553 was taken from section four of chapter eighteen of the revised laws of 1865, the chapter embodying the previous law of January 13, 1862. Section 552 was section three of chapter twenty-six of the laws of 1874, approved January 3, and section 552a was section three of chapter twenty-seven of the laws of 1874, approved January 6. Laws 1874, pp. 47, 49. The compilation of 1884 was published in accordance with the act authorizing it to be made.

June 14, 1858, Congress passed an act, carried forward as § 1874 of the Revised Statutes, providing "that the judges of the Supreme Court of each Territory of the United States are hereby authorized to hold court within their respective districts, in the counties wherein, by the laws of said Territories, courts

county at a certain time to be specified in said order, which shall be made in writing, and filed with the clerk of such district court, and a copy thereof posted up at the court-house door of the said county at least ten days previous to the time specified for holding said special term.

66

"§ 552. The respective district judges are hereby authorized at any time, to hold special terms of the district court in any county of their judicial districts, when a term thereof in said county may have failed: Provided, Said special term shall not conflict with a term of said district court in any other county in the same judicial district. Said terms to be called in the same manner now provided by law for the holding of special terms of the district courts in this Territory.

66

"§ 552a. When in the discretion of the judge of any district court, a furtherance of justice may require it, a special term of the district court may be held in any county of his district; which said special term may be called in the same manner now provided by law for the calling of special terms, and any business at the time pending in said court, or that may come before it in the usual course of business of the court, may be taken up, and acted upon, and disposed of in the same manner as at a regular term of said court.

86

"§ 553. Any special term of the district court that may be ordered under the provisions of this act, shall be held for the purpose of hearing and

Opinion of the Court.

have been or may be established, for the purpose of hearing and determining all matters and causes, except those in which the United States is a party: Provided, That the expenses thereof shall be paid by the Territory, or by the counties in which said courts may be held, and the United States shall in no case be chargeable therewith." 11 Stat. 366, c. 166. Accordingly terms of court in the several counties were duly provided for by the Territorial legislature, and these terms in the counties in the first judicial district were fixed by the first section of the Territorial act of February 22, 1893.

By other sections than those before given, it was provided that District Courts in the several counties in which they might be held should have power and jurisdiction of all criminal cases that should not otherwise be provided for by law; of all criminal cases that might originate in the several counties, which according to law belong to the District Courts, or that might be presented by indictment, information or appeal; and that the costs, charges and expense of holding and maintaining the District Courts and the costs in causes determined against the Territory should be paid by the Territory. Comp. Laws, 1884, $$ 531, 532, 540.

determining all causes that may be depending in said court, both civil and criminal, and may continue in session the same length of time that is allotted to the regular term of court for such county and no longer."

66

"§ 557. It shall be the duty of the attorney-general of this Territory, to attend all such special terms of the district court, having been duly notified thereof, or provide that some one learned in the law shall attend for him, and the said attorney-general or his deputy, shall be required to perform the same duties at such special term, as he is required by law to perform at the regular terms of the district court,

"An act to fix the time of holding the district courts." Approved February 22, 1893.

"SECTION 1. The terms of the district court hereafter to be held in the counties of Santa Fé, San Juan, Rio Arriba and Taos shall be held in said counties beginning at the times hereinafter fixed and continuing until adjourned by order of the court, to wit:

"In the county of San Juan, on the third Mondays in April and October. "In the county of Rio Arriba, on the first Mondays in May and November. "In the county of Taos, on the third Mondays in May and November. "In the county of Santa Fé, on the second Mondays in June and December."

VOL. CLXIV-40

Opinion of the Court.

By section 20 of chapter 61 of the acts of 1893 the respective counties of the Territory were required to provide for the expenses of the District Courts by levy of taxes as therein prescribed. Laws 1893, p. 108.

The Supreme Court of the Territory held that the requirement that the respective counties should provide for the expenses of their District Courts under this section, which we have not felt called upon to set forth in extenso, practically inhibited terms in counties in which there were no funds, and declared that it had been a frequent consequence of this system that courts could not be and were not held in some of the counties at the time fixed by the statute. The laws of New Mexico contained the usual provision for adjournment of terms to terms in course on the non-attendance of the judge (§ 537), and it was not contended here that in fact regular terms of the District Court were held in the county of San Juan in April, in the county of Rio Arriba in May, and in the county of Taos in May, while the special term was in session. From the various provisions of the acts referred to, it appears that no specific duration of either regular or special terms was prescribed by law, but that they were subject, when lawfully commenced, to be continued until adjourned by order of court, and that therefore they could not be necessarily determined by the advent of the particular days designated for the commencement of regular terms; and that special terms might be ordered when regular terms failed to be held, and also whenever in the discretion of the judge of any District Court a furtherance of justice required it.

Under section 552, which was section 3 of chapter 26 of the laws of 1874, when special terms were held because the regular term had failed, it was provided that any such special term should not conflict with the regular term in any other county in the same judicial district, that is, that it should not be so called as to produce a conflict or be held in actual conflict; while by section 3 of chapter 27 of the laws of 1874, being section 552a, no specific limitations were imposed in respect of a special term called thereunder. There was nothing in any of these provisions which controlled the discretion

Syllabus.

of the trial judge in continuing any special term he may have been holding until a pending case was concluded, and nothing which operated to invalidate the proceedings of such special term because prolonged beyond the day fixed for a regular term. Jurisdiction did not depend on the stroke of the clock. Election cases, 65 Penn. St. 20; Briceland v. Commonwealth, 74 Penn. St. 463; Mechanics' Bank v. Withers, 6 Wheat. 106; Maish v. Arizona, 164 U. S. 599.

This trial was commenced on April 23, 1895, which was, as the record declared, the thirty-second day of the special term, which had commenced March 18, and was concluded on May 29, 1895, the sixty-third day of said special term, by the return of a verdict of guilty. The motions for new trial and in arrest were denied, and the sentence pronounced on June 15, 1895, one of the days of the regular term of the District Court, the postponement to that day having been granted on the request of defendants. Under these circumstances the proceedings in any view cannot be held void for want of jurisdiction. McDowell v. United States, 159 U. S. 596.

Order affirmed.

STARR v. UNITED STATES.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF ARKANSAS.

No. 389. Submitted October 23, 1896. Decided January 4, 1897.

The objection that the warrant of arrest of the plaintiff in error purports to be issued by a "Commissioner U. S. Court, Western District of Arkansas" instead of a "commissioner of the Circuit Court," as required by statute, is without merit.

The ruling in Hickory v. United States, 160 U. S. 408, and the similar ruling in Alberty v. United States, 162 U. S. 499, that it is misleading for a court to charge a jury that, from the fact of absconding they may infer the fact of guilt, and that flight is a silent admission by the defendant that he is unable to face the case against him, are reaffirmed, and such an instruction in this case is held to be fatally defective.