State ex rel. Hanagan v. Armijo

• Decision Date: 27 March 1963
• Docket Number: No. 7317,7317
• Citation: 380 P.2d 196,72 N.M. 50,1963 NMSC 57
• Parties: STATE et rel. Patrick F. HANAGAN, District Attorney in and for the Fifth Judicial District, Petitioner, v. Luis E. ARMIJO, District Judge in and for the Fourth Judicial District sitting in and for the Fifth Judicial District in and for Eddy County, Respondent.
• Court: New Mexico Supreme Court

Page 196

380 P.2d 196

72 N.M. 50

STATE et rel. Patrick F. HANAGAN, District Attorney in and for the Fifth Judicial District, Petitioner, v. Luis E. ARMIJO, District Judge in and for the Fourth

Judicial District sitting in and for the Fifth

Judicial District in and for Eddy

County, Respondent.

No. 7317.

Supreme Court of New Mexico.

March 27, 1963.

Patrick F. Hanagan, Dist. Atty., Roswell, C. N. Morris, Asst. Dist. Atty., Carlsbad, Jack Love, Asst. Dist. Atty., Lovington, for petitioner.

T. E. Lusk, John B. Walker, Carlsbad, for respondent.

CARMODY, Justice.

This is an original proceeding in prohibition. Relator claims that the respondent has no jurisdiction to allow a criminal defendant to perpetuate the testimony of the defendant's witnesses, and also that the respondent has no jurisdiction to reopen a preliminary hearing.

The facts of the case are briefly as follows: A preliminary hearing was commenced in a murder case before a district judge of the Fifth Judicial District sitting as a committing magistrate. The judge heard the state's evidence and one of the witnesses called by the defendant. However, the judge refused to allow the defendant to examine several other witnesses who were present, these actually being state's witnesses, but subpoenaed by the defendant. The judge ruled that the defendant was without a right at a preliminary hearing to examine these or, in effect, any defense witnesses. Thereafter, the defendant was bound over to the district court by oral order of the judge. Later, the state filed its information and the defendant was brought, for arraignment, before the respondent, who had been designated by the Chief Justice to try the case. At the commencement of the proceeding, the counsel for defendant declined to enter a plea, contending that a preliminary hearing as provided by law had been denied to the defendant, in that the committing magistrate had improperly limited the right to preserve testimony. A plea in abatement was made, asking the district judge to reopen the preliminary, and permit the taking of testimony of the defense witnesses who were present at this later time, although they were not the same witnesses whose testimony had been sought to be taken originally. The arraignment of the defendant was postponed, pending a determination of the question presented by these prohibition proceedings.

The relator relies upon two points, (1) that the trial court is without jurisdiction to permit the perpetuation of the testimony of defense witnesses, and (2) that the respondent court is without jurisdiction to reopen the preliminary hearing. We will answer the questions in reverse order.

In the first instance, there is no question but that a trial judge has no authority to reopen a preliminary hearing. Our statutes provides that a preliminary examination will be conducted by a committing magistrate (Secs. 41-3-1 to 41-3-14, N.M.S.A. 1953) and the arraignment and the trial will be had before the district court (Secs. 41-3-12, 41-3-15 and 41-6-52, N.M.S.A. 1953). When the defendant appears for arraignment, he has the right to file a plea in abatement, if he has been denied a preliminary hearing, State v. Rogers, 1926, 31 N.M. 485, 247 P. 828. At that time, the court will examine the evidence in support of his plea in abatement and determine whether the proceedings against the defendant may continue, or whether the case against him must be dismissed for failure to accord him the right of preliminary hearing as provided by statute (Secs. 41-3-1 to 41-3-14, N.M.S.A. 1953, and the Constitution, art. 2, Sec. 14). There is no provision under any of our statutes allowing for the reopening of a preliminary hearing.

The procedure requested by the counsel for the defendant and threatened to be allowed by the respondent herein is not proper. Counsel for the respondent would argue that, inasmuch as respondent had the right to sustain a plea in abatement, therefore he could do less, as in this instance, and allow a reopening of the preliminary hearing and the taking of additional testimony. This is not in accordance with the statute. He must either deny the plea in abatement, or sustain the same. If sustained, the proper action is for the case to go back and commence again with another preliminary hearing. We have been cited to no statutes or case law which would authorize the trial judge, other than sustaining the plea in abatement, to do something less and allow the reopening of the case and the taking of additional testimony.

An equally compelling reason why the district judge may not reopen the preliminary hearing is that, with the filing of the information, there is no case pending before the committing magistrate. Thus, although in some cases the committing magistrate may be the district judge, he is no longer acting as a magistrate when the defendant is brought before him for arraignment. The two proceedings, i. e., the preliminary hearing and the trial, are separate and distinct, and the judge, even though he may be the same individual, is acting in two entirely different capacities. It is as though there are two distinct courts and, once the jurisdiction of the district court attaches, the authority of the magistrate's court has ended, so that any nonperformance of the latter may not be completed by the former.

We fully recognize that what is suggested by counsel would perhaps save considerable time and money, and not necessitate a new preliminary hearing should the plea in abatement be granted; but in the absence of statute or any authority, we cannot...