State v. Shawan

• Decision Date: 23 January 1967
• Docket Number: No. 8207,8207
• Citation: 1967 NMSC 13,423 P.2d 39,77 N.M. 354
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Joe SHAWAN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 39

423 P.2d 39

77 N.M. 354

STATE of New Mexico, Plaintiff-Appellee, v. Joe SHAWAN, Defendant-Appellant.

No. 8207.

Supreme Court of New Mexico.

Jan. 23, 1967.

William W. Bivins, Las Cruces, for appellant.

Boston E. Witt, Atty. Gen., Donald W. Miller, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

HENSLEY, Chief Judge, Court of Appeals.

An Information charging the defendant in Count I with assault with intent to kill, and in Count II with discharging a firearm within the limits of the city of Las Cruces, was filed in the District Court of Dona Ana County, New Mexico. Following a verdict of guilty on both counts the defendant now appeals.

The acts leading up to the arrest of the appellant took place on September 22, 1961. On September 25, 1961, complaints were filed before a Justice of the Peace charging the appellant with the offenses named in the preceding paragraph. On September 26, 1961, an Information was filed in the District Court of Dona Ana County charging the appellant with assault with intent to kill. The appellant entered a plea of guilty and was duly sentenced. Some four years after sentence the appellant's petition for a writ of habeas corpus reached the Circuit Court of Appeals, 10th Circuit, where it was ordered that the appellant be released, or in the alternative given a new trial. Shawan v. Cox, 10 Cir., 350 F.2d 909. On November 3, 1965, a new Information was filed in the District Court of Dona Ana County charging the appellant with the offenses named at the outset of this opinion.

The appellant contends that Count II of the Information filed on November 3, 1965, was barred by the Statute of Limitations. The offense charged in Count II, that is, unlawfully drawing or discharging a firearm in a settlement, is of the grade of a felony, and § 41--9--1, Third, N.M.S.A., 1953 Comp., was at the time of the commission of the alleged offense the applicable statute of limitations. Here the complaint was filed before the Justice of the Peace on September 25, 1961; the Information was first filed in the District Court on this Count on November 3, 1965. The defense was timely raised in the District Court at the conclusion of the state's case. The trial court erred in not dismissing this Count. On the other hand, Count I of the Information charged an assault with intent to kill. The evidence was undisputed that the defendant used a firearm and that the scene of the crime was the main street in Las Cruces. Thus the elements of Count II were embraced in Count I. The trial court imposed no sentence on Count II. The error was without prejudice to the appellant and in view of the nature of the charges the ruling did not produce an erroneous result. In such case we will not reverse. Southern California Petroleum Corporation v. Royal Indemnity Company, 70 N.M. 24, 369 P.2d 407.

The appellant next urges that the trial court erred in overruling his motion for a change of venue. The appellant filed his motion for a change of venue on January 27, 1966, the morning of the day of trial, alleging that the appellant could not obtain a fair trial in Dona Ana County because of public excitement and local prejudice. Attached to the motion was the affidavit of the appellant and an exhibit being a photostatic copy of a part of the front page of the Las Cruces Sun-News published January 26, 1966. The exhibit was in words as follows:

'TRIAL REVIVES CHASE MEMORIES

'Memories of a wild chase through Las Cruces and capture of two Texans in September 1961 will be revived here Thursday when one of the principals will stand trial again for assault with intent to kill.

'Claims Error

'Joe Shawon, who has been returned from the state penitentiary where he was serving a one to 25-year sentence, will take the stand again in his defense. He filed a claim that there was error in the proceeding in the original trial. The Federal Court ordered his release.

'The jury trial is scheduled for 9 a.m. in the county court house court room. The trial for Ynocente Bustillos, who is charged with involuntary manslaughter, has been passed over for a future date.

'Shawon and a companion, Ronald T. Novak, were captured near the intersection of South Main and Lohman after their car ran off the road. Novak was dropped by a shot from State Police Sgt. R. J. McCool. It was the only shot taken by Sergeant McCool in the escapade and only after Shawon had fired at him.

'Wild Chase

'Prior to the capture, it was a wild chase punctuated by shots from Shawon's gun at the pursuing McCool. It all started when he two men broke away from officers at a routine road block west of the Rio Grande bridge. They were driving a stolen car.

'With McCool in close pursuit, the men raced down Picacho and turned south on Main. Shawon, who has been in jail before and was on parole from a Texas prison, fired back at McCool several times with a .44-caliber pistol.

'McCool never fired during the chase for fear of hitting innocent bystanders. He pressed the pursuit, hoping the fleeing men would turn north at Main and head out into the country north of the city...