State v. Ferguson

Decision Date13 February 1967
Docket NumberNo. 7958,7958
Citation1967 NMSC 32,77 N.M. 441,423 P.2d 872
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Hazel Billie FERGUSON, Defendant-Appellant.
CourtNew Mexico Supreme Court
Calvin R. Neumann, Clovis, for appellant
OPINION

CHAVEZ, Chief Justice.

Defendant-appellant Hazel Billie Ferguson, having been charged with contributing to the delinquency of minors by selling beer to one of them and permitting them to remain on her premises, contrary to § 40A--6--3, N.M.S.A., 1953 Comp., was found guilty by a jury trial. The trial court sentenced appellant to seven months in the State Penitentiary with the remainder of the one to five-year sentence being suspended. From this sentence appellant takes this appeal.

Appellant contends that the evidence presented by the State, on the issue of appellant being guilty of making a sale of beer to minors and permitting them to remain on her premises, is inadequate to support the verdict. Appellant cites no cases to support this position, but argues that there is no evidence showing that appellant received the money for the sale of the beer, and that the record shows the minors were on appellant's premises for only about thirty minutes, which refutes the charge that appellant permitted the youths to remain on her premises, tending to cause or encourage their delinquency. We think both arguments are without merit.

The record shows the State established by testimony of Larry Melton that he was 17-years old, entered appellant's place in Clovis, New Mexico, on March 12, 1965, bought two cans of beer and drank one of them. Jackie Nelson Lee, a minor and friend of Melton, testified that he was present at appellant's place when Larry bought the beer from a girl named Irma, and observed Melton and one Travis Eubanks drink the beer. He also testified that Irma took the money into an adjoining room, where appellant was in bed, and saw Irma either hand the money to appellant, or place it on the bed beside appellant, and then return without the money. Officer Briggs of the state police testified that he found four boys in the living room of appellant's place, and that there were empty cans and open cans of beer in front of them. Officer Gibson of the state police testified that Travis Eubanks was, on the night in question, 17-years old and that when Gibson entered appellant's place he observed two boys drinking beer.

Appellant called no witnesses and the evidence offered by the State was uncontradicted. At the close of all evidence, appellant moved for dismissal on the ground that reasonable men could not differ on the question of the evidence being insufficient to support the verdict. This motion was for a directed verdict, placing before the trial court the single question of whether or not there was any substantial evidence to support, or reasonably tending to support, the charge for which the directed verdict was requested. State v. Martin, 53 N.M. 413, 209 P.2d 525; Kilpatrick v. State, 58 N.M. 88, 265 P.2d 978. Viewing the record as a whole, we think there is substantial evidence to warrant allowing the case to go to the jury, and the trial court did not err in overruling appellant's motion. We stated in State v. Romero, 67 N.M. 82, 352 P.2d 781:

'In reviewing a conviction, this Court will view the testimony as a whole in the light most favorable to the state, resolving all conflicts therein and indulging in all permissible inferences in favor of the verdict of conviction. State v. Martinez, 1949, 53 N.M. 432, 210 P.2d 620, 626. Where, however, the evidence must be buttressed by surmise and conjecture, rather than logical inference in order to support a conviction, this Court, as final arbiter charged with the protection of civil liberties, cannot allow such conviction to stand. See State v. Bibbins, 1960, 66 N.M. 363, 348 P.2d 484.'

The jury could have logically inferred from the established facts that appellant did receive the money from the sale of the beer. Appellant has not suggested any inference that would be consistent with any reasonable theory of innocence, and we can find none. To warrant a conviction for a crime, whether upon direct or circumstantial evidence, the jury need only be satisfied beyond a reasonable doubt. State v. Johnson, 37 N.M. 280, 21 P.2d 813, 89 A.L.R. 1368.

With respect to appellant's second argument, the jury could have logically inferred from the established facts that appellant knew of the boys' presence and permitted them to remain. In the instant case we do not think the element of time was a necessary part of the State's case.

Appellant's final contention is that answers to two questions asked by the district attorney were prejudicial, and the withdrawal of the answers from the jury's consideration and the later instruction to disregard the answers did not cure the error. The first answer was in response to a question directed to one of the state police officers:

'Q. For what purpose did you go there?

'A. To investigate prostitution.'

The second answer was in response to what occurred between a state police officer and the girl Irma, after they left the main building to go to a smaller building in the rear:

'Q. After you * * * (returned) what if anything did you do?

'A. Irma Jean Jones was placed under arrest for prostitution.'

Counsel for appellant objected to each answer and the trial court admonished the jury that the questions and answers were withdrawn from their consideration, and they were charged not to consider them for any purpose in arriving at a verdict.

Appellant recognizes that the general rule of law and the prevailing rule of law in New Mexico is that, when improper evidence is introduced, objected to and withdrawn from the consideration of a jury with later instruction to disregard such testimony, the withdrawing and admonition cure any prejudicial effect the evidence might have had. State v. Stewart, 34 N.M. 65, 277 P. 22; State v. Tinsley, 34 N.M. 458, 283 P. 907; State v. Dendy 34 N.M. 533, 285 P. 486; State v. Garcia, 46 N.M. 302, 128 P.2d 459;...

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23 cases
  • State v. Allen
    • United States
    • New Mexico Supreme Court
    • 1 d3 Dezembro d3 1999
    ...the" very brief testimony in question. State v. McGuire, 110 N.M. 304, 313, 795 P.2d 996, 1005 (1990); accord State v. Ferguson, 77 N.M. 441, 444-45, 423 P.2d 872, 874-75 (1967). We also conclude that Defendant was not deprived of a fair trial because the inadvertent statements were not eli......
  • State v. Sanchez
    • United States
    • Court of Appeals of New Mexico
    • 24 d4 Junho d4 1982
    ...every reasonable hypothesis of innocence. See State v. Bell, 90 N.M. 134, 560 P.2d 925 (1977); State v. Slade, supra; State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967); State v. Lee, 83 N.M. 522, 494 P.2d 184 (Ct.App.1972). Applying the above test to the evidence presented below, we deter......
  • State v. McGuire
    • United States
    • New Mexico Supreme Court
    • 28 d4 Junho d4 1990
    ...is that sustaining of objections and admonishments to jury cure prejudicial impact of improper question); see also State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967) (admonishment to disregard evidence that defendant was subject of unrelated criminal investigation served to cure prejudice ......
  • State v. Green
    • United States
    • New Mexico Supreme Court
    • 21 d2 Setembro d2 1993
    ...no evidence that he started to traffic in cocaine. Citing State v. Grove, 82 N.M. 679, 486 P.2d 615 (Ct.App.1971); and State v. Ferguson, 77 N.M. 441, 423 P.2d 872 (1967), Defendant asserts that "[m]ere presence is not evidence of participation in criminal activity." Defendant contends that......
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