State v. Archuleta, 511

CourtCourt of Appeals of New Mexico
Citation82 N.M. 378,1970 NMCA 131,482 P.2d 242
Docket NumberNo. 511,511
PartiesSTATE of New Mexico, Appellee, v. Mike ARCHULETA, Appellant.
Decision Date31 December 1970
Anthony F. Avallone, Las Cruces, for appellant

WOOD, Judge.

Convicted of twelve charges of fraud, § 40A--16--6, N.M.S.A.1953 (Repl.Vol. 6), defendant appeals. The issues discussed are: (1) whether the crimes were committed in New Mexico; (2) compelled handwriting exemplars; (3) asserted denial of a preliminary hearing; (4) denial of a motion for bill of particulars; (5) admission of defendant's confession; (6) asserted loss of trial court jurisdiction; (7) denial of a motion to sever; (8) admission of exhibits; and (9) instructions, both given and refused.

Were the crimes committed in New Mexico?

Section 40A--16--6, supra, reads in part:

'Fraud consists of the intentional misappropriation or taking of anything of value which belongs to another by means of fraudulent conduct, practices or representations.'

Defendant was tried on an amended information. Count I of the amended information reads:

'On or about November 14, 1968, in Dona Ana County, New Mexico, Mike Archuleta, intentionally misappropriated and took $991.10 belonging to Farmers Insurance Group by means of fraudulent conduct, practices and representations, contrary to Section 40A--16--6, NMSA, 1953 Compilation.'

The other eleven counts are identical except for dates and the amounts involved.

Defendant concedes that fraud, as defined in § 40A--16--6, supra, took place. We quote from the brief in chief a general outline of the fraud:

'From the proof adduced, the defendant had possession of blank loss drafts of the Farmers Insurance Group. He had authority to sign those drafts and deliver them to either insureds with claims or body shops performing work. * * * The files of the Farmers Insurance Group maintained in Colorado Springs, Colorado, contained papers supporting claims submitted by the defendant. * * * However, the claims were false.'

It is defendant's contention that the fraud was not committed in New Mexico. It is undisputed that each draft issued by defendant in payment of the false claims was drawn on a bank in Colorado Springs, Colorado, and was paid by that bank when presented. Defendant contends the misappropriation or taking occurred when the checks were paid and this was in Colorado, not New Mexico.

Defendant relies on State v. Faggard, 25 N.M. 76, 177 P. 748 (1918). There it was charged that Faggard had an arrangement with a St. Joseph, Missouri company by which Faggard would purchase cattle in Eddy County, New Mexico, and mortgage them to the Missouri company in an amount sufficient to finance the purchase. This was to be done by a draft on the company. Attached to the draft was to be a bill of sale for the cattle and Faggard's promissory note and mortgage. It was charged that Faggard did draft on the company pursuant to the arrangement but attached a bogus bill of sale and executed a chattel mortgage on non-existent cattle. The charge against Faggard was obtaining money by false pretenses. The opinion states:

'* * * if the St. Joseph Cattle Loan Company parted with its money in Eddy county, then the venue was properly laid in that county; on the other hand, if the money was parted with in St. Joseph, Mo., then the venue was there. The law is that a crime must be prosecuted in the jurisdiction where it is committed, and a prosecution for criminal false pretenses must be had in the county, district, or state where the offense was consummated by the obtaining of the property, even though the inducing pretenses were made elsewhere, and the consummation by delivery of the property was effected through the instrumentality of an innocent agent, without the personal presence of the principal.' (Citation omitted)

Seeking to avoid State v. Faggard, supra, the State relies on § 40A--1--15, N.M.S.A. 1953 (Repl.Vol. 6). According to the State, § 40A--1--15, supra, '* * * shows a legislative intent to give jurisdiction over a crime to the court of a county 'in which a material element of the crime was committed." The language is taken out of context. The material portions of § 40A--1--15, supra, read:

'* * * In the event elements of the crime were committed in different counties, the trial may be had in any county in which a material element of the crime was committed. In the event death results from the crime, trial may be had in the county in which any material element of the crime was committed, or in any county in which the death occurred. In the event that death occurs in this state as a result of criminal action in another state, trial may be had in the county in which the death occurred. In the event that death occurs in another state as a result of criminal action in this state, trial may be had in the county in which any material element of the crime was committed in this state.'

The appeal does not involve a situation where material elements of a crime were committed in different counties within New Mexico. Section 40A--1--15, supra, applies only in a limited sense to a situation where a material element of the crime occurs outside New Mexico--where death is involved. Section 40A--1--15, supra, does not cover the contention advanced by defendant. Compare State v. Harrington, 260 A.2d 692 (Vt.1969); People v. Zayas, 217 N.Y. 78, 111 N.E. 465 (1916).

Since § 40A--1--15, supra, is not applicable to defendant's contention, we do not avoid State v. Faggard, supra. Rather, we apply the Faggard statement that prosecution for the crime must be in the state where the offense was consummated. The consummation of defendant's fraud occurred at the place where defendant misappropriated or took money belonging to Farmers Insurance Group. Defendant's contention that the misappropriation or taking did not occur until the drafts were paid in Colorado directs attention to only one portion of the transaction; it ignores what defendant had done previously. Specifically, it ignores the fact that defendant issued the drafts.

Throughout the proceedings the instruments issued by defendant in payment of the false claims were referred to as both checks and drafts. At one of the hearings where defendant sought a bill of particulars, the State made it clear that it was relying on these instruments. A charge of misappropriation of money may be established by a showing that drafts or checks were misappropriated. Section 41--6--21, N.M.S.A.1953 (Repl.Vol. 6); State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962).

Two New Mexico cases support the view that defendant misappropriated the drafts or checks (the money) when he issued them in Dona Ana County, New Mexico.

The maker of a check died after the check was delivered to the payee but before it had been paid by the bank on which the check was drawn. There was nothing showing that either the bank or the payee had notice of the maker's death at the time the bank paid the check. The administrator of the maker's estate sued the payee for the amount of the check, claiming the bank's authority to pay the check was revoked upon the death of its maker. In Elgin v. Gross-Kelly & Co., 20 N.M. 450, 150 P. 922, L.R.A.1916A, 711 (1915), it was held that upon issuance of a check for value there was an assignment pro tanto of the funds of the drawer on deposit in the bank on which the check was drawn. The fact that the check was for value was material as to the issues between the parties. Elgin recognizes that under the statute then existing (the present statute is § 50A--3--409, N.M.S.A.1953 (Repl.Vol. 8, pt. 1)), there was no assignment so far as the depository bank was concerned. However, as between the maker and the payee, there was such an assignment.

Here, as between the State and a defendant who had authority to issue the drafts, defendant made a pro tanto assignment of funds of Farmers Insurance Group when he issued the drafts. That assignment was a misappropriation of funds on which he was authorized to draw. The second case is Territory v. Hale, 13 N.M. 181, 81 P. 583 (1905). The defendant was charged with embezzling funds of Mora County. The funds were on deposit in a bank in San Miguel County. The opinion approves the view that the '* * * embezzlement is accomplished by the drawing of a check upon a bank where such money is deposited.' (Citations omitted)

An issue in Territory v. Hale, supra, was where the embezzlement occurred. The opinion states:

'* * * every act of the defendant in connection with the crime charged was performed in Mora county * * *. He drew the checks there, and either sent them by mail or delivered them personally to the respective payees. All things which were afterwards done were the result of instrumentalities which he, in Mora county, had set in motion. * * *

Although the checks were paid in San Miguel County, the opinion states '* * * the crime was clearly committed in Mora County * * *.'

Although the funds of Farmers Insurance Group were on deposit in a bank in Colorado, under Territory v. Hale, supra, the misappropriation occurred when defendant issued the drafts.

Finally, under this issue, it is pointed out that § 40A--16--6, supra, requires a misappropriation or taking of a thing of value which belongs to another. The suggestion is that although the misappropriated drafts were a thing of value, they were not the property of Farmers Insurance Group. The reasoning is that the drafts indicated an obligation owning by Farmers Insurance Group, that such an obligation belongs to the creditor and not the debtor. Under this view, no property was misappropriated until the drafts were paid in Colorado.

One answer to this contention is that the drafts at the time of issuance, did not represent any indebtedness on the part of Farmers Insurance Group. The evidence shows...

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