State v. Carlton

• Citation: 82 N.M. 537,1971 NMCA 19,484 P.2d 757
• Decision Date: 19 February 1971
• Docket Number: No. 533,533
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Dennis Paul CARLTON, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 757

484 P.2d 757

82 N.M. 537

STATE of New Mexico, Plaintiff-Appellee, v. Dennis Paul CARLTON, Defendant-Appellant.

No. 533.

Court of Appeals of New Mexico.

Feb. 19, 1971.

Rehearing Denied March 11, 1971.

Certiorari Denied April 7, 1971.

Fred T. Hensley, Portales, David W. Bonem, Clovis, for defendant-appellant.

James A. Maloney, Atty. Gen., Santa Fe, John A. Darden, Asst. Atty. Gen., for plaintiff-appellee.

OPINION

SPIESS, Chief Judge.

The defendant was convicted of violating § 40A--16--11, N.M.S.A.1953 (Rpl. Vol. 6), RECEIVING STOLEN PROPERTY. This statute reads:

'Receiving stolen property consists of buying, procuring, receiving or concealing anything of value, knowing the same to have been stolen or acquired by fraud or embezzlement.'

'Whoever commits receiving stolen property when the value of the property is over one hundred dollars ($100) but not more than twenty-five hundred dollars ($2,500) is guilty of a fourth degree felony.'

The value of the property involved in this prosecution was found to exceed $100.00, and defendant was sentenced in accordance with the applicable statute.

Review is sought by defendant under nine points.

It is first contended that the venue was not properly laid in Roosevelt County. The evidence discloses that property consisting of riding equipment of various kinds was stolen from the owner's tack room near Roswell, Chaves County. Some of this equipment, including a western saddle and a number of leather straps, was found in or upon defendant's property in Roosevelt County. The color of this saddle had been changed by darkening it; leather straps had been changed by reducing their size. An inference could properly be drawn that concealment of the stolen property occurred in Roosevelt County. The statute, § 40A--16--11, supra, states but one offence; it provides, however, four methods by which the offence may be committed, namely, buying, procuring, receiving, or concealing stolen property. Proof of any one of these methods, coupled with requisite knowledge, is sufficient to sustain a conviction. Venue was properly laid in Roosevelt County, where concealment occurred.

Defendant next contends that the trial court erred in admitting into evidence certain items identified as Exhibit 1 (an English riding saddle); Exhibit 2 (a number of leather straps); Exhibit 3 (a western saddle); and Exhibit 4 (a braking halter or hackamore). The admission of the items into evidence was objected to on the ground that there is no showing of continuity of possession between the Sheriff Davis and his successor, Sheriff Widener.

The testimony discloses that each of these items were found by Davis (then Sheriff of Rossevelt County) upon or in property of the defendant. Davis identified the items as being those so found by him. Davis further testified that he had turned the items over to his successor, Sheriff Widener. Widener testified that he had received the items from Davis and were in his possession to the time of trial.

It appears to us that the testimony adequately disclosed the custody of the property from the time it was found to the time of trial. Furthermore, it is generally held that, as long as an article can be identified, it is immaterial in how many, or in whose hands it has been. Witt Ice & Gas Co. v. Bedway, 72 Ariz. 152, 231 P.2d 952 (1951); Lestico v. Kuehner, 204 Minn. 125, 283 N.W. 122 (1938); State v. Sprout, 365 S.W.2d 572 (Mo.1963); State v. Allen, 183 Neb. 831, 164 N.W.2d 662 (1969); Friesen v. Schmelzel, 78 Wyo. 1, 318 P.2d 368 (1957); Keller v. Coca Cola Bottling Co., 214 Or. 654, 330 P.2d 346 (1958). In our opinion, the trial court correctly admitted the particular items of personal property into evidence over the objection.

Defendant further contends that his motion for a directed verdict should have been granted because the particular Exhibits 1 through 4 were improperly admitted into evidence. Holding as we do, that the exhibits were properly admitted, we likewise hold that the court did not err in denying the motion for a directed verdict.

Defendant moved to suppress certain evidence consisting of the English saddle (Exhibit 1) and a number of straps bearing a particular brand (Exhibit 2). A pretrial hearing was held upon the motion. The evidence there presented disclosed that a search warrant had been issued and delivered to the Sheriff for execution. The warrant listed a number of items to be seized, but did not include the English saddle, nor the straps.

The officers, the defendant, and one of the persons from whom property had been stolen were present during the search. Certain of the items described in the warrant were seized. Upon entering one of the premises described in the warrant, and while conducting a search therein, the officers saw the English saddle and straps. These items at the time were identified as stolen property.

The trial court denied defendant's motion to suppress, and its action is here for review. It is argued that the trial court erred because the items which were seized were not described in the warrant. This contention, in our opinion, is without merit. The validity of the warrant and the right to conduct the search upon the premises is not questioned. When, in the course of a lawful search for property illegally possessed, the officers conducting the search discover other property illegally possessed the property so discovered may be seized. State v. McMann, 3 Ariz.App. 111, 412 P.2d 286 (1966); Johnson v. United States, 110 U.S.App.D.C. 351, 293 F.2d 539 (1961), cert. den. 375 U.S. 888, 84 S.Ct. 167, 11 L.Ed.2d 118 (1963); United States v. Eisner, 297 F.2d 595 (6th Cir. 1962), cert. den. 369 U.S. 859, 82 S.Ct. 947, 8 L.Ed.2d 17 (1962); Seymour v. United States, 369 F.2d 825 (10th Cir. 1966), cert. den. 386 U.S. 987, 87 S.Ct. 1297, 18 L.Ed.2d 239 (1967); Aron v. United States, 382 F.2d 965 (8th Cir. 1967); Romero v. Superior Court for Los Angeles County, 266 Cal.App.2d 714, 72 Cal.Rptr. 430 (1968); State v. Haggard, 89 Idaho 217, 404 P.2d 580 (1965); People v. Robinson, 40 Ill.2d 453, 240 N.E.2d 630 (1968); State v. Johnson, 16 Ohio Misc. 278, 240 N.E.2d 574 (1968); State v. Whitewater, 251 Or. 304, 445 P.2d 594 (1968); See Harris v. United States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968).

Defendant, in support of his attack upon the admissibility of the particular items of evidence, cites Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927). In Marron the court held that items not named in warrant could not be seized as an incident to the execution of warrant. Marron, however, did not involve the seizure of contraband in the view of the officers lawfully conducting a search. Defendant likewise cites State v. Paul, 80 N.M. 521, 458 P.2d 596 (Ct.App.1969). In Paul the seizure, likewise, was not contraband but items of pure evidence.

Defendant further contends that the trial court erred in denying the motion to suppress because he was denied his right to the assistance of counsel at the time the property was seized. This contention, in our opinion, is likewise without merit.

No authority has been cited by defendant, nor have we discovered any imposing an obligation on the part of officers searching pursuant to a warrant to have defendant or his counsel present during the search.

Defendant, by his next point, asserts that '* * * the trial court erred in allowing cross-examination of the defendant relative to the commission of past felonies and misdemeanors.' The following question was asked of defendant: 'Have you been, Mr. Carlton, have you ever been convicted of a felony or misdemeanor?' At this point objection was made to the question upon the ground, as stated by defendant's counsel, that the question was not asked in good faith for the reason that the prosecutor was aware that defendant had not been convicted of a felony or misdemeanor other than a homicide conviction which was then pending on appeal. See State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966); State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App.1969).

The trial court overruled the objection but said: 'I'll limit the District Attorney to asking the question if he has been convicted of a felony, if he wants that, or he can ask it. 'Have you been convicted of a felony or misdemeanor?' And do not ask what it was under.'

Section 20--2--3, N.M.S.A.1953, provides, in part, 'A witness may be questioned as to whether he has been convicted of any felony or misdemeanor, * * *'

It is held that the cross-examination may not go beyond the name of the particular offence. State v. Clark, 80 N.M. 91, 451 P.2d 995 (Ct.App.1969); State v. Coca, 80 N.M. 95, 451 P.2d 999 (Ct.App.1969).

The question was clearly proper under the language of § 20--2--3, supra.

Argument is made that the question was improper because the homicide conviction was pending on appeal. In responding to the question asked by the prosecutor defendant simply answered 'Yes, sir.'

We are unable to determine from the record whether the answer related to the homicide conviction which was on appeal, or some other felony of which defendant may have been convicted.

It is further argued that the trial court did not attempt to weigh the probative value of proof of a prior conviction of a felony as against the prejudicial effect of such proof. In substance, the defendant says that no judicial discretion was exercised in admitting the testimony, contrary to State v. Coca, supra. It appears from the record that the issue relating to the probative value of the testimony as against its illegitimate tendency to prejudice was brought to the trial court's attention and the court then exercised its discretion and permitted the testimony.

Defendant further contends that the value found by the jury of the western saddle and hackamore does not have evidentiary support. Testimony was offered as to the value of the western saddle and hackamore and also as to the English saddle and...