State v. Henry
| Decision Date | 21 March 1966 |
| Docket Number | No. 7787,7787 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Billy Ray HENRY, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Chester A. Hunker, Clovis, for appellant.
Boston E. Witt, Atty. Gen., Gary O. O'Dowd, Myles E. Flint, Asst. Attys. Gen., Santa Fe, for appellee.
On the night of September 23, 1964, at approximtely 10:30, a grocery store in Clovis, New Mexico, was robbed by three men, two of whom were armed. Appellant and four other men were arrested a short time thereafter. At least three of the men pleaded guilty to the charge of armed robbery and were sentenced to the penitentiary. Appellant pleaded not guilty and was tried before a jury. The jury found him guilty of armed robbery and judgment and sentence were entered accordingly. He appeals from said judgment.
At appellant's trial, three men who entered pleas of guilty, Donnie Smith, Theodore Nance and Marvin Smith, testified concerning the crime and appellant's participation in it. While examining two of them, Donnie Smith and Theodore Nance, the district attorney asked the court to declare them adverse witnesses and allow the prosecutor to show that portions of their testimony at the trial contradicted earlier written statements made by the witnesses. The request was granted.
During his examination of Marvin Smith, the district attorney asked the witness to read his prior written statement. After the witness had read a substantial portion of the statement, appellant objected to it. The objection was sustained and the trial judge instructed the jury to disregard the statement.
Appellant contends that the trial court erred in allowing the State to impeach its own witnesses and use the witnesses' earlier written statements to question them about the crime. He also contends that the trial court erred in ruling that the State could cross-examine its witnesses. Lastly, appellant contends that the evidence does not support the verdict.
Appellant does not argue his last point and, therefore, we assume that he has abanonded it. Kilpatrick v. State, 58 N.M. 88, 265 P.2d 978. The trial court's ruling that the State could cross-examine its witnesses, if error, was not prejudicial because no cross-examination, adide from the adverse questioning discussed below, took place.
We agree with appellant that the general rule is that a party cannot impeach its own witness. Home Fire and Marine Insurance Company v. Pan American Petroleum Corporation, 72 N.M. 163, 381 P.2d 675. Appellant also directs our attention to §§ 20--2--1 and 20--2--2, N.M.S.A., 1953 Comp., concerning impeachment of witnesses. We do not believe that the general rule or those sections are applicable in this case, because of the specific and appropriate language of § 20--2--4, N.M.S.A., 1953 Comp., which reads in part:
'* * * but in case the witness, in the opinion of the judge, proves adverse, such party may prove that the witness made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he did make such statement.'
The statute provides that, if a judge finds the witness adverse, the party calling the witness can prove a prior inconsistent statement, if the circumstances surrounding the making of the statement are mentioned to the witness and he is asked whether he made such a statement.
Appellant points to the fact that the prosecutor could not have been surprised by the testimony of the witnesses, because they had testified similarly at an earlier juvenile hearing. In State v. Hite, 24 N.M. 23, 172 [76 N.M. 104] P. 419, this court held that the statute, which is now § 20--2--4, 'does not require that the element of surprise should be present.'
Appellant cites State v. Hite, supra, in holding that the mere fact that a witness does not testify as expected does not make him hostile. We agree; but that same opinion holds that the determination of a witness' hostility is a matter of discretion of the trial judge, and this court will not disturb his decision unless abuse of discretion is shown. In State v. Hite the court considered a situation in which the state's witness responded to most of the prosecutor's questions by saying 'I don't remember.' The trial court stated that if the witness had given any information favorable to himself or the co-defendants, his prior contradictory statements could be shown. Since the witness had not said anything adverse to the state, the trial court's ruling of adversity was an abuse of discretion.
In State v. Lopez, 46 N.M. 463, 131 P.2d 273, this court found...
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Bouldin v. Cox
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State v. Henry
...jury and judgment and sentence were entered accordingly. On appeal, this court affirmed the judgment of the district court. State v. Henry, 76 N.M. 101, 412 P.2d 398. Thereafter, and while confined in the New Mexico State Penitentiary, defendant filed a motion under Rule 93 (§ 21--1--1(93),......