State v. JONES
| Decision Date | 03 May 1948 |
| Docket Number | No. 5068,5068 |
| Parties | STATE v. JONES. |
| Court | New Mexico Supreme Court |
William H. Darden and William P. Kearns, Jr., both of Raton, for appellant.
C. C. McCulloh, Atty. Gen., and Robert V. Wollard, Asst. Atty. Gen., for appellee.
Appellant was tried and convicted of murder in the first degree and his punishment was fixed at death by electrocution. He appeals from the verdict and judgment.
The material facts are substantially as follows: On March 5, 1947, between the hours of ten and eleven o'clock in the forenoon, appellant was picked up by Jess V. Larson on U. S. Highway No. 85 at the outskirts of the city of Pueblo, Colorado, who then proceeded as far as Walsenburg, Colorado, where they stopped for 25 or 30 minutes, then resuming their trip south. When they reached a point approximately one and a quarter mile on this side of the Colorado line and within the State of New Mexico, appellant drew his gun, pointed it at Larson, and ordered him to pull over on the side of the road and stop, where he robbed him of his money in the sum of $80.00. Appellant took charge of the car and drove it from that point.
When they reached the outskirts of the City of Raton, New Mexico, appellant commanded Larson to lie down on the floor board of the car, but instead he grabbed the steering wheel and in so doing he slipped and fell, whereupon appellant hit him over the head with his gun. The gun discharged but neither was hit. Although the blow did not render Larson unconscious, he remained down on the floor board. While he was in this position, the appellant drove through the City of Raton and on out on Highway No. 87 for about twenty or twenty-five miles and turned off on the Kiowa road, driving some five miles from the junction before stopping the car next to a cement culvert.
The appellant then compelled Larson to crawl headfirst into the culvert and himself crossed immediately to the other side, where, from a stooped position, he fired four or five shots into Larson's head and body as he lay therein in a prostrate and helpless condition. Thereupon, and without pausing to ascertain whether Larson was alive or dead, the appellant fled the scene of his crime and, travelling by a circuitous route, reached Springfield, in the State of Illinois, where he was apprehended on March 28, 1947. There, he signed two detailedconfessions covering his movements which culminated in the murder. After receiving detailed information from the police department at Springfield, Illinois, the sheriff's office in Raton located the deceased's body.
The first point relied upon by appellant for reversal is that the trial court erred in refusing to sustain his motion to quash the information because it did not conform to the provisions of Section 42-604(1) of the New Mexico Statutes, 1941 Compilation, which reads as follows:
The verification made by T. A. Griffith, the sheriff of Colfax County, is as follows:
The appellant was arraigned on April 7, 1947, and instead of entering a plea elected to stand mute, whereupon the trial judge directed that a plea of not guilty be entered for him. The motion to quash the information was not filed until April 16, 1947.
Paragraph (2) of Section 42-604, supra, reads:
'No objection to an information on the ground that it was not subscribed or verified, as above provided, shall be made after moving to quash or pleading to the merits.'
The appellant seeks to void the bar of this statute by the claim that his standing mute and having a not guilty plea entered in his behalf by the trial court is not a pleading to the merits within the contemplation of the statute just quoted. Section 42-652, 1941 Comp., provides:
'If the defendant refuse to answer the indictment or information by demurrer or plea, a plea of not guilty must be entered.'
If by standing mute a defendant could nullify our statutes on criminal procedure endless confusion and delays would result. We must hold that when the appellant stood mute and had a plea of not guilty entered for him, he waived any objection to the form of the verification. See State v. Kusel, 29 Wyo. 287, 213 P. 367; Jordan v. United States, 9 Cir., 299 F. 298; Trimble v. State, 61 Neb. 604, 85 N.W. 844.
Under point two appellant urges that the court erred in overruling his motion for a change of venue filed on April 16,1947. It was supported only by his affidavit. He relies strongly on the case of State ex rel. Tittman v. McGhee, 41 N.M. 103, 64 P.2d 825. The question in that case was whether a party who had disqualified the resident district judge in a case could also disqualify the judge of another district who had been designated by the Chief Justice. In discussing the question Justice Brice cited cases relating to change of venue and applied the reasoning of those cases to the question before the court in that case. He also referred to our statute, now Section 19-505, Comp.1941, relating to a second change of venue. He did not, however, discuss the effect of Section 2, Chapter 60, Session Laws of 1929, now appearing as Section 19-504, Comp.1941, which reads:
'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.'
This section was added as an amendment to the change of venue statute then existing. By its plain terms the trial court may hear witnesses on the hearing, as was done in this case, and may grant or deny the motion, subject, of course, to a review here in the event of an abuse of a sound discretion. Four witnesses were called and examined on the issues raised by the motion for change of venue. The trial court made findings of fact, the substance of which was that the inhabitiants of Colfax county were not prejudiced against the appellant, that no...
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