State v. Franklin

• Decision Date: 30 June 1967
• Docket Number: No. 8330,8330
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Thomas FRANKLIN, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 982

428 P.2d 982

78 N.M. 127

STATE of New Mexico, Plaintiff-Appellee, v. Thomas FRANKLIN, Defendant-Appellant.

No. 8330.

Supreme Court of New Mexico.

June 30, 1967.

Tom W. Neal, Hobbs, for appellant.

Boston E. Witt, Atty. Gen., Myles E. Flint, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION ON MOTION FOR REHEARING

PER CURIAM:

Rehearing is granted. The opinion originally filed herein is withdrawn and the following substituted in lieu thereof:

NOBLE, Justice.

Thomas Franklin has appealed from an order of the district court denying his Rule 93 motion for relief from a judgment and sentence to imprisonment. The single question presented is whether section 14, article II of the New Mexico State Constitution, permitting felonies to be charged by information, violates either the Fifth Amendment requirement of a grand jury indictment, or the due process clause of the Fourteenth Amendment to the Constitution of the United States.

Petitioner agrees that the precise question was settled as long ago as 1884 when the Supreme Court of the United States in Hurtado v. People of State of California, 110 U.S. 516, 4 S.Ct. 111, 28 L.Ed. 232, held the Fifth Amendment's requirement for a grand jury indictment was not applicable to the States. He also agrees that Hurtado has not been expressly overruled. Indeed, to the contrary, it has been consistently followed. See McNulty v. People of State of California, 149 U.S. 645, 13 S.Ct. 959, 37 L.Ed. 882; Hodgson v. State of Vermont, 168 U.S. 262, 18 S.Ct. 80, 42 L.Ed. 461; Bolln v. State of Nebraska, 176 U.S. 83, 20 S.Ct. 287, 44 L.Ed. 382; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; Davis v. Burke, 179 U.S. 399, 21 S.Ct. 210, 45 L.Ed. 249; Dowdell v. United States, 221 U.S. 325, 31 S.Ct. 590, 55 L.Ed. 753; Lem Woon v. State of Oregon, 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340.

Petitioner argues, however, that the prohibition against charging a felony except upon a grand jury indictment is a guarantee of the Bill of Rights which is a fundamental safeguard of liberty protected against state invasion by the due process clause of the Fourteenth Amendment. He arrives at this conclusion by applying the reasoning of Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, which holds the Fifth Amendment's privilege against self-incrimination is made applicable to the States by the due process clause. That reasoning, he argues, makes the requirement for grand jury indictment equally applicable to the States. We cannot subscribe to this view. We do not construe Malloy v. Hogan, supra, as changing the long-established rule that due process does not require the States to adopt the grand jury procedure. Nor do we find anything in Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, intimating that the United States Supreme Court considers changing Hurtado. The precise issue was before the Circuit Court of Appeals of the Tenth Circuit in Blakesley v. Crouse, 332 F.2d 849 (1964), cert. denied 379 U.S. 949, 85 S.Ct. 446, 13 L.Ed.2d 546, where the Fifth Amendment requirement was held not to be applicable to the States. See, also, Saunders v. Buckhoe, 346 F.2d 558 (6th Cir. 1965).

Similarly, a number of state courts have recently determined the question and, so far as we are advised, have unanimously rejected the position advanced by the petitioner. Among those decisions are State v. Lee (Mo.1966), 404 S.W.2d 740; State v. Fogliani (Nev.1966), 411 P.2d 122; State v. Kanistanaux (Wash.1966), 414 P.2d 784; State v. Westphal, 62 Wash.2d 301, 382 P.2d 269, cert. denied, Westphal v. Rhay, 375 U.S. 947, 84 S.Ct. 358, 11 L.Ed.2d 277.

Counsel has listed eight additional points requested by the petitioner which are not argued. Briefly, they assert that inadmissible statements were made by the petitioner to police officers; denial of counsel at critical stages; failure to try petitioner separately on each count; failure to hold a preliminary examination on the charge of forgery; failure to suppress evidence claimed to have been illegally seized; questioning petitioner separately from others during the investigation; improper selection of the jury; and improper sentencing as to accessory to burglary. The trial court made extensive findings of fact against the petitioner's contentions.

We think it appropriate to call attention to the fact that the Supreme Court of the United States in Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473, discussed the proper procedure for district courts under the provisions of 28 U.S.C.A., § 2255, from which our Rule 93 was patterned. That court pointed out that the federal statute requires a district court to 'grant a prompt hearing' when such a motion is filed, and to 'determine the issues and make findings of fact and conclusions of law with respect thereto' unless 'the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' The court there went on to emphasize that where factual allegations relating primarily to purported occurrences outside of the courtroom put in issue matters upon which the record could cast no real light, the court must hold a hearing at which the prisoner is permitted to offer evidence.

Machibroda also sets forth the circumstances under which the motion may be considered without the personal appearance of the prisoner.

We have carefully examined the allegations of the petition and are convinced that they are such as probably could be resolved by reference to the court record itself. However, the record originally submitted contained...