State v. Lindsey

• Decision Date: 05 December 1969
• Docket Number: No. 352,352
• Citation: 464 P.2d 903,1969 NMCA 121,81 N.M. 173
• Parties: v. Frank LINDSEY, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 903

464 P.2d 903

81 N.M. 173

v. Frank LINDSEY, Defendant-Appellant.

No. 352.

Court of Appeals of New Mexico.

Dec. 5, 1969.

Rehearing Denied Dec. 30, 1969.

Certiorari Denied Jan. 27, 1970.

E. Douglas Latimer, McAtee, Marchiondo & Michael, Albuquerque, for appellant

James A. Maloney, Atty. Gen., Santa Fe, Ray Shollenbarger, Mark B. Thompson, III, Asst. Attys. Gen., for appellee.

OPINION

OMAN, Judge.

Defendant appeals from his conviction of Receiving Stolen Property, contrary to § 40A-16-11, N.M.S.A. 1953 (Repl.Vol 6). The points relied upon for reversal are considered in their order of presentation in the brief in chief.

Defendant's first contention is that the trial court erred in denying his motion for change of venue. Very shortly after the commencement of the trial and before proceeding to select the jury, defendant orally moved for a mistrial '* * * due to the publicity given this case, particularly the publicity of yesterday, * * *'

The newspaper offered and received by the court in support of the motion contained an article entitled 'Judge Rejects Move to Again Postpone Trial.' The article relates to the denial of defendant's motion for postponement; the granting of a motion to limit the trial '* * * to a single incident involving a television set'; a statement by the Assistant District Attorney that '* * * he planned to use other alleged incidents to show Lindsey knew the television set was stolen'; the penalty for '* * * receiving and concealing stolen property worth more than $100 * * *'; a ruling by the court that '* * * the prosecution will not have to show how the television set was obtained'; and that no ruling was asked at that time by defendant's attorney '* * * on a motion to suppress statements Lindsey made to policeman Timothy Kline.'

We are unable to find in this article anything which was prejudicial to defendant or which could have aroused public excitement or feeling against him. It is neither suggested nor argued that any of the jurors who tried the case had read the article. Under these circumstances, defendant could not have been prejudiced. See Deats v. State, 80 N.M. 77, 451 P.2d 981 (1969). Compare State v. Thayer, 80 N.M. 579, 458 P.2d 831 (1969).

The other articles to which defendant may have had reference in his motion are not before us, and we cannot speculate as to the contents thereof or the effect they may have had upon the inhabitants of Bernalillo County from which the jury was selected.

Defendant contends he '* * * raised the issue in the only manner which was available to him under the time and circumstances of the case. * * *' and that the decisions in State v. Shawan, 77 N.M. 354, 423 P.2d 39 (1967); State v. Alaniz, 55 N.M. 312, 232 P.2d 982 (1951); State v. Montoya, 80 N.M. 64, 451 P.2d 557 (Ct.App.1968), and State v. Childers, 78 N.M. 355, 431 P.2d 497 (Ct.App.1967), required the trial court to grant the motion or hear evidence thereon.

We are not convinced the motion was presented in the only manner available under the circumstances, and the cases relied upon by defendant do not support his position. The Montoya, Childers and Alaniz cases, insofar as here material, were concerned with the effect of a timely filed motion which complied with the provisions of § 21-5-3, N.M.S.A.1953, or the amended version thereof, which appears as § 21-5-3, N.M.S.A.1953 (Supp.1969). As held in these cases, if a motion for change of venue in proper form and properly supported is timely filed, as required by § 21-5-3, supra, the trial judge must either grant the motion or conduct a hearing thereon as provided in § 21-5-4, N.M.S.A.1953. See also, Deats v. State, supra. However, here we have an oral motion which in no way met the statutory requirements as to timeliness, form or substance.

In State v. Shawan, supra, the motion was not filed until the morning of trial, but was in proper form and otherwise complied with the requirements of § 21-5-3, supra. The motion could not have been filed sooner due to the time of the publication, which allegedly resulted in defendant's inability to obtain a fair trial in the county. The publication relied on was incorporated into the motion and was a part of the record on appeal. The defendant in that case also offered to produce witnesses to establish that substantially the same story had been broadcast by radio in the area on the day before trial. Under these circumstances, our Supreme Court held the trial court erred in summarily denying the motion. Defendant next contends the trial court erred in refusing to quash the indictment. Defendant was indicted for receiving stolen property contrary to § 40A-16-11, supra, which, insofar as here material, defines the offense as follows:

'Receiving stolen property consists of buying, procuring, receiving or concealing anything of value, knowing the same to have been stolen or acquired by fraud or embezzlement.'

The indictment charged defendant with receiving and concealing stolen property contrary to the provisions of § 40A-16-11, supra, and further charged that:

'On diverse dates between March 20, 1965, and the 19th day of March, 1968, * * * (the defendant) did buy, procure, receive, or conceal things of value knowing the same to have been stolen or acquired by fraud or embezzlement, * * *'

On May 31, 1968, defendant filed a Motion for Bill of Particulars by which he sought an order requiring the District Attorney to give each particular date between March 20, 1965, and March 19, 1968, on which defendant allegedly committed the charged offense, and a specification of '* * * the merchandise that the Defendant on each specific date did buy, procure, receive or conceal * * *'

On the same date defendant filed a Motion to Quash Indictment on the grounds:

'1. That the same does not charge an offense under the laws of the State of New Mexico.

'2. That the same is too general, vague and indefinite.

'3. That the same attempts to charge more than one offense although it does not charge an offense.'

The indictment is in substantially the form prescribed by statute, and, insofar as form is concerned, no greater degree of conformity is required. Section 41-6-5, N.M.S.A.1953 (Repl.Vol. 6).

The offense was charged in the name given it by the statute; it was stated in almost the identical language of the statutory definition thereof, and certainly in terms of substantially the same meaning; and express reference was made to the statute creating the offense. The statutes require only that the offense be charged in any one of these ways. Section 41-6-7, N.M.S.A.1953 (Repl.Vol. 6).

Pursuant to the orders and directions of the trial court, the State filed a Bill of Particulars setting forth that 'On or about * * *' six stated dates the defendant received certain specified articles of property. One of these dates was October 1, 1966, and the article of property allegedly received by defendant on or about that date was a 'portable General Electric 12 inch Black and White Television, Serial No. P 204547 Model No. T R 814 C E B.'

Defendant subsequently filed a motion to require the State to elect on which of these alleged six offenses it would prosecute defendant. On the morning of trial, as the very first order of business, the following occurred:

'MR. BEATY (defendant's attorney): Your Honor, the first motion we bring to your attention this morning is to order the State to elect on which offense it will prosecute, and Mr. Wilson (an Assistant District Attorney) had agreed with me that we would take up only one. That's the incident involving a television set. Is that right?

'MR. WILSON: That's correct. The defendant will be-he is charged with receiving and concealing a twelve-inch G.E. portable television belonging to Sam Boren, knowing same to have been stolen.

'THE COURT: That's the offense you're trying him on?

'MR. WILSON: That's correct.'

Nothing further was said concerning this particular matter. Defendant was then tried and convicted of receiving the television set knowing the same to have been stolen or acquired by fraud or embezzlement. By the indictment defendant was advised of the name and nature of the offense and cited to the section of the statutes under which he was charged. By the Bill of Particulars he was informed as to the time of the alleged commission of the offense and the particular property involved. The indictment and bill of particulars are to be read as a single instrument constituting the accusation, and are to be so considered in determining the adequacy of the indictment. Norton v. Reese, 76 N.M. 602, 417 P.2d 205 (1966); State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1 (1936); State v. Putman, 78 N.M. 552, 434 P.2d 77 (Ct.App.1967). See also, State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967); State v. Shroyer, 49 N.M. 196, 160 P.2d 444 (1945); §§ 41-6-7, 8, 11 and 15, N.M.S.A.1953 (Repl.Vol. 6). By agreement with the Assistant District Attorney, defendant was tried only on one of the offenses with which he had properly been charged.

Defendant next contends the trial court erred in denying his motions for dismissal and a directed verdict on the ground that there was no evidence upon which the jury could have found he had knowledge that the television set was stolen.

The evidence shows defendant had the television set in his possession; he acquired this possession within a few days of the theft thereof; the fair market value of the set was $120.00 and defendant sold it for $65.00; he was constantly selling a variety of new articles for about one-half their retail price; there was no evidence of his connection with any lawful business in which such articles were sold; he took orders for some of the articles which he subsequently sold; some of these articles had 'price stickers' on them, and these 'price stickers' resembled those used by stores engaged in the sale of such articles; and defendant told an undercover police officer that everything he sold was...