State v. Bailey, 6148

• Decision Date: 19 December 1956
• Docket Number: No. 6148,6148
• Citation: 62 N.M. 111,1956 NMSC 123,305 P.2d 725
• Parties: STATE fo New Mexico, Plaintiff-Appellee, v. Lamar BAILEY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 725

305 P.2d 725

62 N.M. 111

STATE fo New Mexico, Plaintiff-Appellee, v. Lamar BAILEY, Defendant-Appellant.

No. 6148.

Supreme Court of New Mexico.

Dec. 19, 1956.

Rehearing Denied Jan. 22, 1957.

McAtee, Toulouse & Marchiondo, Albuquerque, for appellant.

Richard H. Robinson, Atty. Gen., Harry E. Stowers, Jr., Howard M. Rosenthal, Asst. Attys. Gen., for appellee.

COMPTON, Chief Justice.

Appellant was convicted of the crime of assault with a deadly weapon, and, from the judgment and sentence, he appeals.

The first point urged involves a jurisdictional question, whether appellant's constitutional rights were violated in not first being accorded a preliminary examination prior to the filing of the information against him. We are not impressed with this claim of error. No jurisdictional question is presented. The information charging the assault upon Arthur J. Ward was filed by the district attorney on August 5, 1955. The following day, the accused, accompanied by his counsel, pleaded not guilty and at the same time requested a preliminary hearing. Subsequently, he moved that the information be abated for the reason that no preliminary hearing had been granted. Thereupon, the court sustained the plea until such time as the accused was given such hearing. Subsequently, a preliminary was had, after which the cause came on for trial on the information previously filed.

The court did not err in putting appellant to trial upon an information filed prior to the preliminary examination. While no person shall be held on information without having had a preliminary examination, unless such examination is waived, Article II, Sec. 14, New Mexico Constitution, appellant not only was accorded a hearing but he waived this right by his plea. State v. Gallegos, 46 N.M. 387, 129 P.2d 634; State v. Trujillo, 33 N.M. 370, 266 P. 922; State v. Vigil, 33 N.M. 365, 266 P. 920.

At the trial, the court admitted in evidence, over objection, the testimony of a witness taken at the preliminary examination. The lack of due diligence shown on the part of the State in securing the attendance of the witness at the trial is assigned as error. This question was one addressed to the sound discretion of the trial court and its ruling should not be disturbed in the absence of a showing of abuse, State v. Jackson, 30 N.M. 309, 233 P. 49; State v. Trujillo, supra; however, no showing whatever was made why the witness could not be produced. In this respect the record is as follows:

Mr. Woolston (Assistant District Attorney): 'May it please the Court, comes now the State of New Mexico and offers to show by correspondence, that Donald F. McAllister, a witness sought to be subpoenaed by the State is beyond the jurisdiction of the Court;...