State v. Alaniz, 5350

• Citation: 232 P.2d 982,55 N.M. 312,1951 NMSC 49
• Decision Date: 26 June 1951
• Docket Number: No. 5350,5350
• Parties: STATE v. ALANIZ.
• Court: Supreme Court of New Mexico

Page 982

232 P.2d 982

55 N.M. 312

STATE v. ALANIZ.

No. 5350.

Supreme Court of New Mexico.

June 26, 1951.

J. D. Weir, W. B. Darden, Las Cruces, for appellant.

Joe L. Martinez, Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., for appellee.

LUJAN, Chief Justice.

Valeriano Alaniz and Luis Campos were tried and convicted in the district court of Lincoln county of the murder of Pete Nalda. Campos was sentenced to life imprisonment. Alaniz was sentenced to death and he appeals from the judgment and sentence entered upon the verdict so returned. The parties will be referred to as they appeared in the lower court.

The fatal tragedy occurred on the Lewis-Sanders ranch which is located about twenty miles east of Corona, New Mexico, between 11:30 P.M. and midnight on February 26, 1950. Mr. Gratien Ernaut as a witness for the state, gave substantially the following version of the affair. On the night in question between 11:00 and 11:30 o'clock, while he was asleep in his bedroom the defendant Luis Campos entered the room with a knife in his hand and ordered him to get up. Then Campos took him into the kitchen where his uncle, Pete Nalda, and the defendant, Valeriano Alaniz, were seated by the table. Without further delay the defendants took him and Pete Nalda to the latter's bedroom to search for a check book. At that time Campos held a knife in his hand and Alaniz held a pistol. They were compelled to walk ahead of them. While in Nalda's bedroom Campos secured a pistol from a dresser drawer and he, together with Alaniz, leveled their pistols at both of them and informed Nalda that they wanted some money. Then the defendants took both Ernaut and Nalda back to the kitchen where at the point of guns they compelled Nalda to make out checks in the sums of $15.00, $250.00, $370.00 and $460.00, respectively. Alaniz requested Nalda to make out the checks in the name of Pedro Garcia. Then Alaniz ordered Ernaut to endorse them. The defendants were in a mad and angry mood as well as in a hurry. When the checks were written and endorsed each defendant took two of them. Then the defendants told Nalda to put on his coat and hat, but he told them he wanted to put on his shoes. The defendants informed him that it was not necessary as they were not going to take him very far. That they were both taken outside the house at the point of guns held in the hands of the defendants. That while walking towards a pick-up truck which was parked close to the house Nalda looked back and the defendants told him, 'It doesn't pay for you to look back, we are not going to shoot you in the back.' That when they had reached a point close to the little truck or pick-up, defendants said, 'Now is the time to kill him.' At this time Campos took out a bottle from his coat pocket and handed his gun to Alaniz; then he offered Ernaut a drink. When Nalda saw this he started to run and Campos told Alaniz, 'Shoot him, shoot him.' Ernaut then heard two shots fired in Nalda's direction. He ran in the opposite direction and they shot at him. He heard the bullet whiz by him.

John Nalda, a nephew of the deceased, was also a witness for the state. He testified that he went to look for his uncle the next morning and found his dead body in a ditch about 700 yards from the house.

Dr. J. P. Turner, also a witness for the state, testified that he examined the body of Pete Nalda and found a gun shot wound which had penetrated the skull at the left back ear and had come out above the right ear; that he also found a gun shot wound in the back of deceased in the region of the right shoulder.

T. E. Kelly, a funeral director, also a witness for the state, testified that he examined the body of the deceased and found a bullet hole an inch and a half back of the left ear, passing through, and that it was taken out just over the right ear; that he found another bullet wound which entered the body in the back bewteen the shoulders.

The defendants left the scene of the crime in Alaniz's truck and traveled through different parts of the county in an effort to evade the officers. They finally concealed themselves in an abandoned house at Pastura where they were apprehended.

The first, second, third, fourth and fifth assignments of error argued under Point I are based upon the ground that the defendant, Valeriano Alaniz, was never given or afforded a preliminary hearing or examination upon the offense charged, as required by constitutional and statutory provisions, and that he did not waive such right.

Article 2, Section 14, New Mexico Constitution, provides: 'No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney-general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No persons shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.' (Emphasis ours.)

Section 42-301 of the 1941 Compilation provides: 'When the defendant is brought before the magistrate upon an arrest, either with or without a warrant, on a charge of having committed a public offense, the magistrate must immediately inform him of the charge against him, and of his right to the aid of counsel in every stage of the proceedings, and also his right to waive an examination before any other proceedings are had.' (Emphasis ours.)

The above provisions are for the benefit of the accused. It has not the nature of a personal privilege under which he may insist upon a preliminary examination before he can be put upon his trial or called upon to answer an information, but by their express terms he may waive this right. We think the record fails to sustain the defendant's contention. When the defendant was brought before the magistrate and arraigned, he entered a plea of guilty to the complaint, and, without the examination of witnesses, was bound over to the district court. In Latimer v. State, 55 Neb. 609, 76 N.W. 207, the court said: 'If the accused, on being arrested and brought before an examining magistrate, voluntarily pleads that he is guilty of the crime charged against him, he thereby waives his right to a preliminary examination.'

It is urged, however, that in entering the plea of guilty to the complaint the defendant acted without the advice of counsel. It is true that the defendant did not have counsel. The record shows, however, that when he was brought before the examining magistrate he was told that he was entitled to have counsel represent him, and that he was entitled to a continuance if he desired, and that it was not necessary for him to plead. After being so advised the defendant stated that he was ready to plead, and upon being arraigned to the complaint he pleaded guilty. In so doing he expressly waived a preliminary examination. It follows that there is nothing in the contention of defendant upon this point.

The tenth assignment of error argued under Point IV is based upon the admission in evidence, over defendant's objection, of the undated and unsworn exparte written statement of the State's witness, Gratien Ernaut. It is the contention of defendant, that the sole purpose of introducing such statement was to corroborate and bolster the oral testimony given by this witness. It is true that the State cannot corroborate its own witness by showing his prior consistent statements. State v. Bell, 206 Iowa 816, 221 N.W. 521; Walding v. State, 23 Ala.App. 185, 122 So. 296; Higdon v. State, 25 Ala.App. 209, 143 So. 213; Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594; Byrd v. State, 154 Miss. 742, 123 So. 867; State v. Johnson, 334 Mo. 10, 64 S.W.2d 655; Cupit v. State, 103 Tex.Cr.R. 13, 279 S.W. 455; Russell v....