State v. Fernandez

• Decision Date: 22 September 1952
• Docket Number: No. 5491,5491
• Citation: 56 N.M. 689,1952 NMSC 87,248 P.2d 679
• Parties: STATE v. FERNANDEZ.
• Court: New Mexico Supreme Court

Page 679

248 P.2d 679

56 N.M. 689

STATE v. FERNANDEZ.

No. 5491.

Supreme Court of New Mexico.

Sept. 22, 1952.

Edward J. Apodaca, Albuquerque, for appellant.

Joe L. Martinez, Atty. Gen., James B. Cooney, Asst. Atty. Gen., W. F. Kitts, Asst. Atty. Gen., for appellee.

COMPTON, Justice.

Appellant appeals from sentence imposed by the district court of Sandoval County following convicting before a jury of having murdered one Clemente Salazar. Error is predicated upon the refusal of the court (a) to grant a change of venue, (b) to grant a continuance, (c) to declare a mistrial, and (d) prejudicial comments of the trial court during the trial. We will discuss the question in that order.

From first to last the three Judges of the Second Judicial District participated in the case. Appellant was arraigned before Edwin L. Swope, Judge of Division 3, sitting as committing magistrate, entered a plea of not guilty and requested a preliminary hearing which was granted. At the conclusion of the hearing, probable cause was found and he was held for trial at the ensuing term of court.

Subsequently, appellant moved for a change of venue claiming that he could not receive a fair trial due to public excitement and local prejudice existing against him in Sandoval County. The motion was heard by R. F. Deacon Arledge, Judge of Division 2, after which it was denied without findings, and none were requested.

Our first consideration is whether denying the motion is a question open to review.

The applicable venue statutes read:

'Change of venue in civil and criminal cases--Grounds--Affidavits--Notice.--The venue in all cases, both civil and criminal shall be changed, upon motion, to some county free from exception whenever the judge is interested in the result of such case, or is related to, or has been counsel for either party or when the party moving for a change shall file in the case an affidavit of himself, his agent or attorney that he believes such party can not obtain a fair trial in the county wherein the cause is then pending, either because the adverse party has undue influence over the minds of the inhabitants of such county, or the inhabitants of such county are prejudiced against such party, or because by reason of public excitement or local prejudice in such county in regard to the case or the questions involved therein, an impartial jury can not be obtained in such county to try the same or for any other cause stated in such affidavit; Provided that any party in either civil or criminal cases at issue that desires a change of venue from the county in which said case is pending shall file his application for a change of venue on or before the first day of any regular or special term of court. Provided further, that if the application for change of venue is filed in vacation, five (5) days' notice of the time and place of presenting the motion must be given to the opposite party or his attorney.' Section 19-503, 1941 Compilation.

'Evidence in support of application--Findings--Decision.--Upon the filing of a motion for change of venue, the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion.' Section 19-504, 1941 Compilation. (Emphasis ours.)

It is obvious when a requisite motion is made, the venue must be changed or in the alternative, the court may require evidence in its support. It is equally clear that if a hearing is had thereon it is the duty of the court to determine the question by its findings. And it is well established that findings thus made will not be disturbed upon review unless it shall appear from the evidence that the trial court acted unfairly and committed palpable abuse of discretion. State v. Alaniz, 55 N.M. 312, 232 P.2d 982. But this does not mean that a party may not either expressly or by conduct waive specific findings. The language of L.1887, Ch. 64, Par. 1, no less mandatory in tone or character thant he venue statute, provides that in all cases tried to the court without a jury, the court 'shall find the facts' but the decisions are so numerous that the rule became axiomatic that a party could not take advantage of the court's failure in this regard unless he requests specific findings. We cite a few cases so holding: Radcliffe v. Chavez, 15 N.M. 258, 110 P. 699; Dailey v. Foster, 17 N.M. 654, 134 P. 206; Springer Ditch Co. v. Wright, 31 N.M. 457, 247 P. 270. Since these decisions, however, subsection 6 of the rule has been added, Section 19-101(52)(B)(6) 1941 Comp., which specifically provides that a party will waive specific findings of fact and conclusions of law if he fails to make a general request therefor in writing, or if he fails to tender specific findings and conclusions. Indeed, the addition of subsection 6 as a part of the rule was but a recognition by us of what has become established law by such decisions. Therefore, we come to the conclusion that appellant has not preserved for review here error in the trial court's failure to make specific findings which he was not moved to request.

The case came on for hearing before Waldo Rogers, Judge of Division 1. Previously, appellant invoked the provision of Chapter 66, Laws of 1937, appearing as Section 42-1215, 1941 Comp. (uniform act to secure the attendance of out-of-state witnesses), to summon one Pete Gabaldon then in California. At a hearing upon the motion appellant testified that the presence of Gabaldon was necessary to his defense but at no time did he disclose what the witness would testify to if he were present. In response to the question, 'are there any other reasons why you think Pete Gabaldon's testimony is necessary to present your defense,' appellant answered, 'just for the reason that I have known Pete for quite a while since we were kids, and I know he is about the only one who would know what was going on that night, and I think he would help me. If he testified to what he knew in court, it would be to my advantage to give me a fair trial.' Clearly this statement was pure speculation. Nevertheless, the motion was granted and transportation and expense money were furnished, Judge Rogers personally writing a letter to the witness requesting his attendance at the trial. On the morning of the trial a telegram was received by the court from...