State v. Jenkins

• Decision Date: 08 January 1952
• Docket Number: No. 5393,5393
• Citation: 1952 NMSC 4,56 N.M. 12,239 P.2d 711
• Parties: STATE v. JENKINS.
• Court: New Mexico Supreme Court

Page 711

239 P.2d 711

56 N.M. 12

STATE v. JENKINS.

No. 5393.

Supreme Court of New Mexico.

Jan. 8, 1952.

Adolf J. Krehbiel, Howard B. McClellan, Clayton, for appellant.

Joe L. Martinez, Atty. Gen., Hilario Rubio, Asst. Atty. Gen., for appellee.

SADLER, Justice.

The defendant, a young man twenty-six years of age, was convicted of armed robbery and sentenced to a term in the penitentiary. The jury having recommended clemency the trial judge honored the recommendation by imposing the very light sentence of from three to five years imprisonment. This appeal is prosecuted to review the judgment of the trial court. The defendant prays that he be granted a new trial.

The facts are few and simple. J. H. Rankin, a well known business man who has resided in Clayton for many years, returned to his home only three or four blocks from the Silver Moon Cafe in downtown Clayton at about 9:00 o'clock p. m. on Saturday night, April 22, 1950. When he went to his bedroom, shortly after entering the house, he was confronted by a masked robber with a .45 calibre revolver pointed at him and ordered to turn over his money. The victim obligingly complied and was relieved at the same time of a diamond stick pin valued at several thousand dollars as well as a .25 automatic pistol. Thereupon the robber made his departure, jerking a telephone off the wall before doing so, after warning his victim to lie down on the bed in the bedroom and not try to make any trouble.

As soon as Mr. Rankin felt safe in doing so he called out to the intruder an inquiry whether he might come into the living room. Getting no reply, he arose from the bed and finding the robber had fled proceeded up town where he reported the robbery to the police. He was unable to identify the robber to the police, although he did give them a rather accurate description of his size and described how he was dressed. The mask he wore appeared to have been made of rubber, the hat was pulled down over his head, he wore gloves and tan shoes and his clothes were of khaki material. The victim could not say whether he was a white or colored man but stated his speech indicated an effort to disguise his voice.

From early that afternoon until almost midforenoon of the following day a poker game was in progress in a room above Silver Moon Cafe, participated in at various times by several well known residents of the town. At different times as many as six or seven were participating in the game at one time. The defendant was one of the participants in the afternoon, entering it again after the supper hour between 7:00 and 7:30 o'clock in the evening. His luck was good in the early part of the game in the evening but by 8:30 o'clock he had lost all his winnings as well as his initial stake. He thereupon left the game, went downstairs, out on the street and during an absence of approximately 20 minutes, proceeded to the home of Rankin nearby where he committed the robbery detailed above.

Following the robbery, the defendant returned to the game and continued to play for about an hour when he left that game and visited the Jim McDonald house where another game was in progress. One Pete Parras was in charge there and the defendant impressed him as being drunk, though he finally sat down and played a few hands, swearing at Parras occasionally. The defendant suddenly asked Parras to visit the toilet with him. When inside, he took the diamond stick pin from his mouth and held it in the palm of his hand. Upon being asked where he got it, he stated he took it from 'Slats,' a nickname by which Mr. Rankin is generally known in the community. Parras then inquired what he proposed doing with it and he replied he would get something for it. To this, Parras replied, 'all you can get is fifteen cents and trouble.' Whereupon defendant put the pin back in his mouth and resumed his place at the card table for about ten to fifteen minutes, then departed.

In the meantime, but prior to defendant's confessions and subsequent arrest, suspicion having pointed toward another local resident as the one actually perpetrating the robbery, a criminal complaint charging him accordingly was filed with the local justice of the peace. This prosecution was later abandoned. So matters stood following the robbery, although the defendant had been detained as a suspect for a few hours and questioned shortly after it was reported. However, at the time evidence that defendant committed the robbery was not deemed sufficient and the District Attorney ordered his release.

Thereafter, on June 30, 1950, officers at Guymon, Oklahoma, placed the defendant under arrest on a charge of cattle stealing. His identity was established from the license number on his car through a telephone call to State Patrolman Earl Morris, at Clayton. The latter proceeded to Guymon as soon as identity of the suspect was established. The defendant was questioned in the office of the County Attorney at Guymon where he made a written confession to the Oklahoma charge of stealing cattle.

When his statement had been typed by the stenographer in the office of the County Attorney, the latter asked defendant if there was anything else he wished to get off his mind. The defendant looked around until his eyes fell on officer Morris, motioned him over toward him and in a low tone of voice said to him that he wished to give a confession on the Rankin 'deal' and get everything off his conscience at one time. Morris explained they would have to have a witness. Accordingly, they went into the office of the highway department located in the county courthouse. There in the presence of officer Morris, officer Tommy Howard, Investigator for the Oklahoma Bureau of Criminal Investigation, and Christine Fankhouser, the County Attorney's secretary who took the statement and transcribed it, the defendant related the details of the Rankin robbery. In his recital he accepted full responsibility for the crime, stating that he alone was implicated.

In the meantime and based on information secured from the defendant in the written statement just mentioned, J. F. Wilkes of Clayton was arrested, charged with receiving stolen property. Furthermore, after giving his written statement at Guymon, Oklahoma, where the defendant was still held, he had indicated to the officers a desire to enlarge upon that statement, giving certain details of the robbery theretofore omitted which he said properly belonged in it. Accordingly, he was taken by officers Morris and Tommy Howard to the office of District Attorney John B. Wright in Raton. There, on July 7, 1950, in the presence of the District Attorney, officers Morris and Howard, and Florine Glen, stenographer in the office of the District Attorney, who took down and transcribed the same, the defendant made and signed the second written statement, filling in many of the details omitted from his former statement. After signing same, it was witnessed by Earl K. Morris and Tommy Howard, the officers mentioned hereinabove.

It should be added that prior to dictating the statement last mentioned, the mask worn by defendant in the holdup which had been recovered through information furnished by him, and also the gun used in the robbery which had come into the hands of the officers were exhibited to defendant in the office of the District Attorney and identified by the former as the gun and mask used in the robbery. Indeed, the defendant went into detail in explaining to the officers certain changes he had made in the mask for use on this occasion and asked if the gun could be returned to him for placing in his home, apparently for protection of his family, while he was away. The officers explained to him it would have to be retained until his trial for use as evidence.

Thereafter and on July 17, 1950, J. F. Wilkes, charged with receiving stolen property had his preliminary examination before a justice of the peace in Clayton. The defendant appeared voluntarily as a witness at this trial, was sworn and testified for the state. He claimed no privilege, admitted his part in the robbery, also disposition of the diamond pin to Wilkes, and other incidents connected with both the robbery and disposal of the property to Wilkes. Shorthand notes of the testimony were taken and later transcribed, and in so far as the testimony related to the robbery itself, as distinguished from the charge against Wilkes, it was introduced in evidence at defendant's trial.

Within a few days following the preliminary examination of Wilkes the defendant sent word to Rankin that he wished to see him. This message was brought to Rankin by officer Morris whom he asked to accompany him to defendant's home where he resided with his wife and child. Upon entering the house, the defendant led Rankin and Morris into a bedroom adjoining the living room. Morris remained with the other two but a few moments when he retired. The defendant then made the following statement to Rankin: 'Q. Read the question (done). A. He says Slats I am sorry I robbed you. I don't know why I did it unless I was broke and needed money. First, he says I hardly know how to say what I want to talk to you about. I says, I imagine I know. That is when he told me he said he was sorry he robbed me. I says that is too bad, cannot be helped. Your Dad and I used to be in business together; always good friends. When you get out of this mess behave yourself and try to go straight. That is what I told him.'

A mere reading of the foregoing recital of facts, all well within the jury's verdict of guilty as findings of fact, convincingly establishes the lack of merit in defendant's motion for a directed verdict in his favor interposed both when the state rested and when both sides had rested at the conclusion of the trial. The motion was based primarily on the contention that the uncontradicted evidence established the defense of alibi. However, even if the deadly admissions of guilt in his several confessions...