State v. Henneman.

• Decision Date: 13 April 1936
• Docket Number: No. 4164.,4164.
• Citation: 40 N.M. 166,56 P.2d 1130
• Parties: STATEv.HENNEMAN.
• Court: New Mexico Supreme Court

40 N.M. 166

56 P.2d 1130

STATE

v.HENNEMAN.

No. 4164.

Supreme Court of New Mexico.

April 13, 1936.

Appeal from District Court, Union County; Livingston N. Taylor, Judge.

A. A. Henneman was convicted of conspiracy to burn a grain elevator, and he appeals.

Reversed and remanded, with directions.

Great weight should be given trial court's opinion on motion for new trial based on affidavit of recanting witness, and decision thereon will not be reversed without clear showing of abuse of discretion.

O. P. Easterwood, of Clayton, R. E. Underwood, of Amarillo, Tex., and Hugh B. Woodward, K. Gill Shaffer, and Frederic C. Blake, all of Albuquerque, for appellant.

Frank H. Patton, Atty. Gen., and Edward P. Chase, Asst. Atty. Gen., for the State.

HUDSPETH, Justice.

A. A. Henneman, Ruben Arellano, Ruben Mares, and Roy Overbay were charged with having, on the 15th day of June, 1933, in the county of Union in this state, unlawfully conspired to burn a grain elevator in Frederick, Okl. Mares and Overbay entered pleas of guilty. On a plea of not guilty, Henneman and Arellano were found guilty by a jury, and from the judgment and sentence of from five to seven years in the penitentiary, entered September 8, 1934 Henneman prosecutes this appeal. On the recommendation of the jury Arellano was given a suspended sentence.

Appellant established his business in Clayton, Union county, N. M., in the year 1922, and resided there until about the year 1928, when he moved to Amarillo, Tex., which became the headquarters for his seed and grain business.

Ruben Arellano entered appellant's employ in 1922, and continued in his employ as foreman of the Clayton elevator until the time of the trial.

The defendant Ruben Mares, a resident of Clayton, N. M., was an ex-convict. He was sent from Clayton to the New Mexico penitentiary, and he had also been an inmate of the Colorado penitentiary.

According to Mares' testimony, the defendant Arellano early in the month of June, 1933, offered to pay him $200 and take him to Frederick, Okl., if he (Mares) would burn an elevator which appellant Henneman had there and which was insured for $35,000. A few days later, defendant Arellano called at the home of Mares about 4 o'clock a. m. and they went in Arellano's car to Amarillo, Tex., where they talked to appellant. Mares testified: “He asked me if I had the nerve to burn it and keep quiet.”

After driving 15 miles beyond Amarillo, Arellano proposed that Mares go alone to Frederick. They returned to Amarillo where Mares boarded a train. After visiting Frederick, locating the elevator and looking the ground over, Mares returned to Clayton and demanded $800 additional. His testimony regarding a conversation held in Clayton some days later, and about a week before the elevator was burned, follows:

“Q. After Henneman came in, did you hear or take part in any conversation, or did you overhear any conversation between the defendants Henneman and Arellano? A. No. They just told me that they would pay me the $800.00 if nothing happened after the elevator was burned.

“Q. Who made those statements to you, Mr. Mares? A. Both of them.

“Q. Both of these defendants, Mr. Henneman and Mr. Arellano? A. Mr. Arellano and Mr. Henneman.

“Q. What did you do after you had that conversation with them? A. Then I invited Roy Overbay to go with me.

“Q. To go where with you? A. Frederick, Oklahoma, to burn the elevator.

“Q. Did you and Roy Overbay go to Oklahoma then? A. Yes. We both went. ***

“Q. What did you and Mr. Overbay do after you got to Frederick, Oklahoma? A. We took the necessities to start the fire, some old car tires and a quart of gasoline.

“Q. What did you do with all of that? A. We took it inside and we took them into a place where they call them the legs, where they told me to start the fire.

“Q. Tell this court and jury what you did there. A. We started a fire, and as soon as we start the fire we come back to Vernon.

“Q. When you came back to Vernon, did you see Cogdill again? A. Yes. We find Mr. Cogdill there, and we come back to Clayton, and about a week later after I come back from there Mr. Henneman paid me $200.00.

“Q. Where did he pay you the $200.00? A. In this granary here in Clayton.

“Q. At the time the money was paid to you, was Mr. Arellano present? A. Yes. He gave him to him and he paid me in his presence.

“Q. What do you mean ‘he gave him to him and paid me in his presence’? Give the names. A. Mr. Henneman gave the $200.00 to Arellano and Arellano passed to me $170.00.

“Q. Why didn't he give you the $200.00? A. Because he claimed that I owe him $25.00 for expenses that he made himself.

“Q. Did you owe him $25.00? A. He claimed that I owe him for expenses that he made.

“Q. Expenses that he made where? A. For the ticket that he bought me from Amarillo to Vernon and some other small amount that he give me for expenses.

“Q. That is in connection with your first trip to Frederick? A. Yes, sir.”

Some time after the burning of the elevator, Mares and Overbay talked of the crime while drinking in the presence of a bootlegger named Dacy. Later, in the month of August, 1933, Overbay and Dacy, who assumed the name of Cisco, went to Amarillo and endeavored to extort money from appellant. Overbay testified that appellant called Arellano at Clayton by telephone while he was in his office for the purpose of ascertaining what Overbay knew about the fire. Appellant positively denied calling Arellano on that day or on any other day, although his bookkeeper in the Clayton elevator testified that he had twice called for Arellano within the week ending June 15, 1933.

Mares was demanding money of Arellano and delivered a letter to him which he claimed was received from his advisor, the purport of which was that Mares should make demand on appellant through Arellano, and if appellant failed to meet the demand that the insurance company would pay liberally for the information. Finally, Arellano sent Mares $15 by Mares' brother, according to the state's witnesses. While Arellano admitted delivering the $15 to Mares' brother, he claimed it was a loan to the brother.

Mares also tesified that he met by appointment appellant and Arellano near a school building in Clayton a short time before he was arrested, and before the $15 was sent to him by Arellano, at which time he notified them that he would go back on his word unless they gave him money. Later, appellant sent his employee Acres to Boise City, Okl., to get a statement from the defendant Mares. Two days later Mares made a different statement in the presence of Oklahoma officers. Appellant testified with reference to this point as follows:

“Q. You also had in your employ, did you not, a man named Virgil Acres? A. Yes, sir.

“Q. He was in your employ right after the Frederick elevator fire? A. Yes, sir.

“Q. He was one of these men up there at Boise City that got the statement from Rube Mares? A. Yes, sir.

“Q. He was in your employ at that time? A. Yes, sir.

“Q. Now then, do you know of any reason in the world why it was that this boy Roy Overbay and this man that termed himself Cisco should happen to come down to Amarillo to see you? A. There is quite a lot of blackmailing going on these days and people looking for easy money without working for it, and my idea in getting Mr. Acres was just to see if these fellows ever worked for an honest living.”

This judgment must be reversed on another ground hereinafter noted, but it is thought advisable to consider the question whether or not there is substantial evidence of appellant's participation in the conspiracy.

It is true, as stated by appellant's able counsel, that there is no testimony directly connecting appellant with the crime, except that of the defendant Mares, a confessed perjurer, who had been an inmate of two penitentiaries before he engaged in this conspiracy. It is also shown by the motion for a new trial that, after being taken to prison for this crime, he made another affidavit exonerating appellant. Such a record is reviewed with alert consciousness that at least one link in the chain of evidence is decidedly weak.

However, the evidence that some one hired Mares to burn the elevator is convincing. It is also well established that Arellano, who conversed with Mares in his mother tongue, was employed as a go-between. The close and long-continued relation between appellant and Arellano is admitted. It is also admitted that appellant spent the day and evening of June 15, 1933, in Clayton. The failure of appellant to turn over Overbay and Dacy to the officers of the law or to report their efforts to extort money from him may be given some weight, especially in view of his testimony to the effect that he threatened to call the police if they further annoyed him. The telephone calls of Arellano between the time of Mares' and Arellano's visit to Amarillo and June 15th would have been given little consideration if appellant had not denied making them. His testimony as to the obtaining of a statement from Mares has been quoted. Appellant's conduct in this instance hardly comports with that of one having no motive except curiosity as to whether “these fellows ever worked for an honest living.”

[1] The jury heard and saw the witnesses, including Mares, whose thorough cross-examination laid bare his want of character. His two accounts of this crime, each differing on material points from the testimony given at the trial, were also before the jury. Notwithstanding the low rating which must be given Mares' testimony, the facts and circumstances admit of a reasonable inference that appellant participated in the conspiracy charged.

[2][3][4] The recanting affidavit of Mares was made one of the grounds of appellant's motion for a new trial. The trial court denied the motion, and this is assigned as error. Appellant cites Pettine v. Territory of New Mexico (C.C.A.) 201 F. 489; Powell v. Commonwealth, 133 Va. 741, 112 S.E. 657, 33 A.L.R. 541. Following this...