Nelson v. Cox
| Decision Date | 07 January 1960 |
| Docket Number | No. 6691,6691 |
| Citation | 66 N.M. 397,1960 NMSC 5,349 P.2d 118 |
| Parties | David Cooper NELSON, Petitioner, v. Harold Z. COX, Respondent. |
| Court | New Mexico Supreme Court |
Joseph B. Zucht, Richard C. Losh, Edwin Threet, Albuquerque, for petitioner.
Hilton A. Dickson, Jr., Atty. Gen., Thomas O. Olson, Boston E. Witt, Asst. Attys. Gen., for respondent.
Nelson is confined in the New Mexico state penitentiary awaiting execution, which has been set for Friday, January 8, 1960.
He was convicted of murder in the first degree on two different occasions, the first conviction having been reversed in State v. Nelson, 1958, 63 N.M. 428, 321 P.2d 202, and the second conviction being State v. Nelson, 1959, 65 N.M. 403, 338 P.2d 301, in which this court affirmed the conviction. Following the affirmance, Nelson petitioned the Supreme Court of the United States, where certiorari was denied. Thereafter, he applied to the district court of the first judicial district for a writ of habeas corpus, which, after a hearing, discharged the writ. Nelson thereupon filed in this court his petition for a writ of habeas corpus, setting forth therein, under five separate points, his contentions as to why the writ should be granted.
Following extensive argument and the submission of trial briefs by both Nelson and the respondent, the matter is now ripe for decision. The various points will be discussed in the order presented.
Petitioner first contends that he was deprived of a fair and impartial trial and deprived of life and liberty without due process of law by reason of the fact that the trial court, in response to a question by the jury during the course of their deliberations, read to the jury the constitutional provision and the laws concerning pardon and parole. This same precise point was before us in the Nelson case in 65 N.M. 403, 338 P.2d 301, supra, wherein it was contended that this action by the trial court was reversible error. We held adversely to Nelson in the appeal and, although his argument is to a certain extent more extensive in this proceeding than it was heretofore, we do not believe that the giving of the instruction violated the due process clause of either Art. II, Sec. 18, Constitution of New Mexico, or the Fourteenth Amendment of the Constitution of the United States. It occurs to us that the giving of the instruction did not affect the action of the court in a jurisdictional sense. The answer to the inquiry as to the instruction merely advised the jury fairly and accurately the status of the law, and in no wise attempted to influence their decision. To us, this is not an usurpation of the discretion vested in the executive branch of the government and does not violate the New Mexico constitution in this respect. The other arguments submitted by the petitioner as to this point are not persuasive, and we feel that the trial court was performing its proper duty in advising the jury of a true statement of the law as distinguished from allowing the jury to speculate upon the law if the instruction had been refused.
Admittedly, there is authority holding advice to the jury concerning pardon and parole laws to be error. However, there is just as respectable authority holding as we did. See note in 35 A.L.R.2d 769 cited in our opinion on the appeal. Nowhere have we seen it asserted that the rule adopted by us and numerous other states amounts to a denial of due process.
As to the petitioner's point II, he therein contends that Sec. 41-8-1, N.M.S.A., 1953 Comp., is unconstitutional in that it provides for the venue of the trial of criminal cases not only in the county where committed but, in addition, in the county where the death occurred, even though the fatal would occurred in another county or another state. We need not specifically rule upon the constitutionality of this statute other than to say that the instruction given and finding pursuant thereto were within the constitutional requirement. Art. II, Sec. 14, New Mexico Constitution.
The jury was specifically instructed that it must find, beyond a reasonable doubt, that the fatal blow and the death occurred in the county of the venue and this the jury, by its verdict, did. Therefore, any argument that the blow or the cause of death may have occurred elsewhere is of no consequence. This is particularly true in view of what is said in the Nelson case in 65 N.M. 403, 338 P.2d 301, supra, in which we found the venue to be proper in the county where the case was tried. It should also be added, however, that there is nothing in the record that the fatal blow or the death took place elsewhere. All of the state's case was based upon the theory that the death occurred where claimed and that the fatal blow, in view of the nature of the deceased's injuries, was struck in close proximity to the scene of the finding of the doby. It would be the sheerest surmise and speculation to determine from the evidence that the affair took place in some other locality.
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State v. Victorian, 9473
...miscarriage of justice and deprived him of due process of law.' The doctrine of cumulative error is recognized in New Mexico. Nelson v. Cox, 66 N.M. 397, 349 P.2d 118 (1960); State v. Polsky,supra. However, defendant must fail under this point for the same reasons defendant in the Polsky ca......
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State v. DeSantos, 10478
...482 P.2d 74 (Ct.App.1971).14 See, e.g., State v. Victorian, supra; State v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966); Nelson v. Cox, 66 N.M. 397, 349 P.2d 118 (1960). ...
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State v. Thayer
...errors above discussed denied him a fair trial. He relies upon State v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966); Nelson v. Cox, 66 N.M. 307, 349 P.2d 118 (1960); and State v. Gutierrez, Although these cases recognize the existence of the doctrine of cumulative error in New Mexico, none of ......
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State v. Gutierrez
...exists in New Mexico and may be raised as an issue on direct appeal. State v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966); Nelson v. Cox, 66 N.M. 397, 349 P.2d 118 (1960). Defendant contends the doctrine should be applied because the third party comment to a juror occurred just prior to the ju......