582 P.2d 378 (N.M. 1978), 11941, State v. Lankford

Docket Nº:11941.
Citation:582 P.2d 378, 92 N.M. 1, 1978 -NMSC- 058
Opinion Judge:[9] Easley
Party Name:STATE of New Mexico, Petitioner, v. Floyd LANKFORD, Respondent.
Attorney:[6] Toney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for petitioner. [7] Reginald J. Storment, Appellate Defender, Douglas Barr, Asst. Appellate Defender, Santa Fe, for respondent.
Judge Panel:McMANUS, C. J., and PAYNE and FEDERICI, JJ., concur.
Case Date:July 25, 1978
Court:Supreme Court of New Mexico

Page 378

582 P.2d 378 (N.M. 1978)

92 N.M. 1, 1978 -NMSC- 058

STATE of New Mexico, Petitioner,

v.

Floyd LANKFORD, Respondent.

No. 11941.

Supreme Court of New Mexico.

July 25, 1978

Rehearing Denied Aug. 9, 1978.

[92 N.M. 1] Toney Anaya, Atty. Gen., Charlotte Hetherington Roosen, Asst. Atty. Gen., Santa Fe, for petitioner.

Reginald J. Storment, Appellate Defender, Douglas Barr, Asst. Appellate Defender, Santa Fe, for respondent.

OPINION

EASLEY, Justice.

Defendant was convicted by a jury of unlawful taking of a vehicle. The Court of Appeals reversed the conviction. We reverse the Court of Appeals and reinstate the judgment of conviction.

The dispositive issue is whether there is substantial evidence in the record to support the jury verdict as to the charge that the offense was committed between August 16 and 31, 1976.

The Facts

The criminal information charged the defendant with unlawful taking of a motor vehicle "on or about August 31, 1976." Defendant filed a "Demand for Particulars" and the District Attorney responded with a "Bill of Particulars" stating that the crime was committed sometime between August 16 and 31, 1976.

The automobile in question, a Volkswagen, had been left by the owner, Mrs. Yoeman, at Bowlin's Teepee, twenty miles west of Deming for a period of about six weeks. Darroll Homer testified that he went with the defendant to unlawfully take the automobile "approximately somewhere in August." On being cross-examined as to how he knew the incident occurred in August he stated "because I was there." Homer later stated that the incident "could have happened in August." The manager of Bowlin's testified that the car disappeared from the "very end of August up to the 10th of September." A sheriff's report which was introduced as an exhibit without objection showed that the owner had called the sheriff's office on September 8, 1976, and reported to a deputy sheriff that she had just talked with someone at the Teepee and was informed that the last time the car had been seen was on Saturday, September 4. There was other evidence which showed the taking may have been in September.

[92 N.M. 2]

Page 379

The trial court gave defendant's requested instruction that required the jury to find that the crime was committed between August 16 and 31, 1976. The jury brought back a guilty verdict.

Opinion of the Court of Appeals

...

To continue reading

FREE SIGN UP