State v. Armijo
| Decision Date | 24 March 1931 |
| Docket Number | 3627. |
| Citation | 2 P.2d 1075,35 N.M. 533,1931 -NMSC- 008 |
| Parties | STATE v. ARMIJO et al. |
| Court | New Mexico Supreme Court |
On Rehearing September 15, 1931.
Rehearing Waived Sept. 29, 1931.
Syllabus by the Court.
Verdict of guilty, if supported by substantial evidence, must be sustained.
Verdict supported by substantial evidence must be sustained.
Uncorroborated testimony of accomplice may be sufficient to sustain conviction.
Uncorroborated testimony of accomplice sufficient to sustain verdict.
Whether testimony was unworthy of belief in view of impeachment of witness was question for jury.
Whether witness so impeached as to render his testimony unworthy of belief is question for jury.
Where defendant was indicted for larceny and for conspiracy to commit larceny and cases consolidated for trial, conviction of conspiracy will not be disturbed notwithstanding acquittal of larceny, where evidence was sufficient to support conviction of both though verdicts were irreconcilable.
Where indictments for a larceny and for a conspiracy to commit the same larceny were consolidated for trial and the evidence was sufficient to support conviction of both, a conviction of latter will not be disturbed because of acquittal of former though impossible to reconcile the two verdicts under any reasonable view of the evidence.
Instructions given without objection, and therefore acquiesced in by defendant, become law of case.
Instructions acquiesced in are law of case.
Though verdict of acquittal of larceny seems irreconcilable with conviction of conspiracy to commit same larceny, verdict of guilty cannot be questioned on such ground where both verdicts were authorized by instructions acquiesced in.
Though verdict of acquittal of larceny seems irreconcilable under any reasonable view of the evidence with a conviction of conspiracy to commit same larceny, the latter verdict cannot be questioned on such ground where both verdicts are authorized by instructions acquiesced in.
Inherently improbable, uncorroborated testimony of accomplice, who at preliminary examination declared accused innocent held not substantial evidence necessary to support conviction of conspiracy.
The inherently improbable, uncorroborated, testimony of an accomplice, who at a preliminary examination, under oath, had declared the innocence of the accused, held not substantial evidence to support a conviction.
Conviction upon unsubstantial evidence violates fundamental right which should be protected, though right may not have been invoked by motion for directed verdict.
Conviction upon unsubstantial evidence violates a fundamental right which it is the duty of the Supreme Court to protect, though the right may not have been invoked below by motion for a directed verdict.
Appeal from District Court, Bernalillo County; Helmick, Judge.
Carrie Adair Armijo and another were convicted of conspiracy to commit larceny, and they appeal.
Reversed and cause remanded with directions.
George R. Craig and Marron & Wood, all of Albuquerque, for appellants.
M. A Otero, Jr., E. C. Warfel, and Quincy D. Adams, all of Santa Fé, for the State.
Carrie Adair Armijo, Luis Martinez, and Roy Gentry were jointly indicted for conspiracy to burglarize the Bernalillo county courthouse, and to steal therefrom a box containing $1,300 in money, both box and money the property of the state. They were also jointly indicted for larceny of said box and money. By agreement of the parties and by order of the court, the two causes were "consolidated for the purposes of trial." Gentry pleaded guilty and testified against the two others. The trial of Armijo and Martinez resulted in acquittal of larceny and conviction of conspiracy. From the judgment rendered on the latter verdict they have appealed.
Luis Martinez was in charge of the distribution of automobile license plates in Bernalillo county and of the collection of the moneys paid therefor. Mrs. Armijo was his assistant. The business was carried on in the office of the county treasurer in the courthouse. The moneys stolen were the proceeds of such collections and the box was the receptacle for such moneys. the convicting evidence was the testimony of Gentry. He was the son of the courthouse janitor. He assisted his father in his work and carried the keys to the treasurer's office. He testified that on several occasions he had let appellants in to the treasurer's office when it was closed; that at 1 o'clock in the afternoon preceding the robbery he met Martinez in a corridor of the courthouse; that Martinez inquired if he wanted to make $100 and, on the witness' reply that he did, said that he wanted to get into the treasurer's office, that he was going to make a clean-up, that he was going to take the strong box out; that a little after 9 that evening the witness let appellants into the treasurer's office; that he found them waiting for him in the corridor; that they then told him they were going to carry the box out at 3:30; that they were going to push the safety latch on the door so that they could go in and out as they pleased; that they wanted the witness to take the deputy sheriff (who would be in an office across the hall from the treasurer's office) to lunch at midnight, and to watch on the outside at 3:30 in the morning, and to let them know if anybody came up, and that the witness was to call them by telephone at 11:30 at the treasurer's office; that he called them at 11:30 and received the same instructions as before; that at 3:30 in the morning he was watching on the outside of the courthouse, and saw the box carried out by appellant Martinez and another man, Mrs. Armijo being with them but not helping to carry the box; that the three went to the rear of the courthouse; that he heard a car start up out there and then went to bed; that about 1 o'clock the next day he met Martinez in the corridor and asked him about the $100; that Martinez told him not to worry about "that hundred," and that if he mentioned anything about it he would kill him; that about 12 o'clock that night he saw a car containing Martinez and Mrs. Armijo; that he stopped them and asked them about the hundred dollars; that they told him not to worry about the hundred dollars, to let it go for a couple of months until everything should be quiet, and if he mentioned anything they would kill him; that at this time he saw the strong box in the rear of the car; and that appellants told him they were going to Santa Fé.
Appellants argue the insufficiency of the evidence from two viewpoints. They contend: First, that the evidence is insufficient to support conviction for either crime with which appellants were charged. Second, that even if it is sufficient to support a conviction of either or both charges, it is insufficient to support a conviction of conspiracy in view of the acquittal of larceny.
Appellants do not question that the testimony above recited, if believed, is conclusive of guilt of both offenses. Their point is that it is not worthy of belief. Gentry was an accessory. His story in the light of circumstances existing is not very convincing. He made two so-called confessions. Then at the preliminary hearing he repudiated both and declared that appellants were innocent. Cross-examination at the trial and the various versions he gave cast great doubt upon his veracity and upon the truth of his testimony. But these matters do not legally affect its substantial character. It was for the jury to weigh it and decide the question. The uncorroborated testimony of an accomplice will sustain a conviction though the witness was discredited by having a criminal record. State v. Kidd, 34 N.M. 84, 278 P. 214. Whether a witness has been so impeached as to render his testimony unworthy of belief is a question for the jury. Las Cruces Motor Co. v. Conover, 35 N.M. --, 288 P. 1065. We are unable, therefore, to sustain appellants in their first contention.
The second contention is more troublesome. Their proposition is that if Gentry told the truth appellants were guilty of larceny; that the jury found them not guilty of this offense, and hence found that Gentry did not tell the truth; and that if Gentry did not tell the truth, there is no substantial evidence that appellants were guilty of conspiracy. As a criticism of the combined results of the two verdicts, the argument has considerable force. Is it such an argument as a court of review may properly entertain?
It is contended that the two verdicts are utterly inconsistent; that the acquittal of larceny nullifies the conviction of conspiracy so that judgment upon the latter should have been arrested, or at least that the two verdicts nullify each other so that mistrial should be held to have resulted.
There is no inherent inconsistency in the verdicts resulting from the nature of the offenses. It is quite possible for appellants to have conspired to commit, without having committed, the larceny. So such cases as State v. Headrick, 179 Mo. 300, 78 S.W. 630 and State v. Akers, 278 Mo. 368, 213 S.W. 424, if in accord with sound principle, are not here in point. Nor are former jeopardy cases such as In re Resler, 115 Neb. 335, 212 N.W. 765, and Davis v. People, 22 Colo. 1, 43 P. 122, in point.
The claimed inconsistency is based upon the testimony in the particular case; it being contended that reasonable minds could not so view such testimony as to reach the two conclusions which the jury arrived at. Assuming that to be logically true, the question remains whether, in reviewing the conspiracy verdict for sufficiency of the evidence, we are at all concerned, or may properly concern ourselves, with the acquittal of larceny.
There is conflict of authority upon the question, and this...
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