State v. Collins
| Decision Date | 29 August 1969 |
| Docket Number | No. 8789,8789 |
| Citation | 1969 NMSC 104,80 N.M. 499,458 P.2d 225 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Glen C. COLLINS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Appellant and Sandia Memorial Gardens, a corporation, were convicted of having violated the provisions of the last sentence of § 67--29--6, N.M.S.A.1953, of the Endowed Care Cemetery Act of 1961. The corporation has not appealed. Section 67--29--6, supra, reads as follows:
'67--29--6. Instrument regarding care to be furnished by cemetery authority.--Whenever a cemetery authority owning, operating, controlling or managing a cemetery accepts care funds, either in connection with the sale of a lot, grave, crypt or niche, or in pursuance of a contract, or whenever, as a condition precedent to the purchase of a lot, grave, crypt or niche, such cemetery authority requires the establishment of a care fund or a deposit in an already existing care fund, then such cemetery authority shall execute and deliver to the person from whom received an instrument in writing which shall specifically state:
A. The nature and extent of the care to be furnished;
B. That such care shall be furnished only in so far as the net income derived from the amount deposited in trust will permit (the income from the amount so deposited, less necessary expenditures of administering the trust, shall be deemed the net income);
C. That the cemetery is operated as an endowed care cemetery, which means that an endowed care fund for its maintenance has been established in conformity with the laws of the state of New Mexico, and the definition of endowed care as appears in section 3 (67--29--3) hereof; and
D. That not less than the following amounts will be set aside and deposit in trust:
(1) For graves, 25% of the lot or land sales price, unless a lesser amount is approved by the state bank examiner.
(2) For a crypt, vault or niche, 10% of the sales price.
(3) For the special care of any lot, grave, crypt or niche, or the family mausoleum, memorial, marker or mounment, the full amount received.
Such setting aside and deposit shall be made by such cemetery authority not later than thirty (30) days after the close of the month in which was received the final payment on the purchase price of each lot, grave, crypt or niche, or the final payment for the general or special care of a lot, grave, crypt or niche or of a family mausoleum, memorial, maker or monument; and such amounts shall be held by the trustee of the care funds of such cemetery authority in trust in perpetuity for the specific purposes stated in said written instrument.'
Section 67--29--16, N.M.S.A.1953, reads as follows:
'67--29--16. Violations--Punishment.--Whoever violates any provision of the Endowed Care Cemetery Act of 1961 (67--29--1 to 67--29--17) shall be guilty of a misdemeanor and, upon conviction, shall be fined not less than fifty dollars ($50.00) nor more than five hundred dollars ($500), or imprisoned for not more than six (6) months, or both, at the discretion of the court.'
The evidence the State relies upon for the conviction is the showing of final payments of the purchase price of six different cemetery lots on various dates in 1964 and 1965, and evidence that no moneys from the sale of lots were deposited in the trust fund during the years of 1963, 1964, and 1965 from the sale of these lots during that entire period.
It is appellant's contention that in order to prove the crime here charged, the State must also show (1) the amount in the trust fund; (2) the total amount of paid out purchases of lots; and (3) that the trust money on deposit was less than 25% of the lot or land sales price at the expiration of the 30 day period after the sale, none of which was satisfactorily proved by the State. A motion for a directed verdict was made at the close of the State's case.
Appellee states in its brief that regardless of the condition of the trust account at any given moment, it is a crime for the defendant to fail to deposit the amounts required and in the time required by § 67--29--6(D), supra. This is true, but these requirements can be met by deposits in advance of the closing of the sale.
Since § 67--29--6(D), supra, states that not less than 25% of the lot or land...
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