State v. Long

• Decision Date: 20 December 1944
• Docket Number: No. 4864.,4864.
• Citation: 49 N.M. 57,157 P.2d 236
• Parties: STATEv.LONG et al.
• Court: New Mexico Supreme Court

49 N.M. 57

157 P.2d 236

STATE

v.LONG et al.

No. 4864.

Supreme Court of New Mexico.

Dec. 20, 1944.Rehearing Denied April 16, 1945.

Appeal from District Court, Roosevelt County; James B. McGhee, Judge.

Raymond Harlon Long and another were convicted of stealing one neat cattle, and they appeal.

Affirmed.

A defendant in criminal case may properly move for a directed verdict at close of whole case even though he has not so moved theretofore; hence he does not waive right to so move by failure to make such motion at end of state's case in chief.

[157 P.2d 236 , 49 N.M. 58]

James A. Hall, of Clovis, and Reed Holloman, of Santa Fe (on motion for rehearing), for appellants.

C. C. McCulloh, Atty. Gen., and Harry L. Bigbee, Asst. Atty. Gen., for appellee.

BICKLEY, Justice.

The appellants and one Ivan Bannister were charged with stealing one neat cattle, the property of one J. J. Steale. The evidence upon which the jury found the appellants guilty shows that these three men of middle age, closely associated in business and otherwise, were engaged in a joint venture. Bannister pleaded guilty.

The appellants complain first that the court erred in permitting a state's witness, Ern Hopkins, a city policeman, who arrested Compton, to testify as to a conversation with said Compton while he was under arrest without first determining that the statements made by Compton were voluntary. The precise objection was: ‘We object to the question unless it is shown that the defendant Compton was properly warned and that he was in custody.’ We have examined this testimony and in view of the fact that the defendant Compton must have known that he was under arrest, and further that the facts testified about were otherwise established, we are not at all satisfied that the court committed reversible error in permitting the witness to testify. See State v. Archuleta, 29 N.M. 25, 217 P. 619. However, in any event the error, if any, was cured. At the conclusion of the testimony of this witness, the last one to testify as a part of the state's Case in Chief, the court instructed the jury as follows:

‘Gentlemen of the Jury, the statements of the last witness who testified, the city policeman, detailing the conversation with the Defendant Compton after his arrest are withdrawn from your consideration and are to be disregarded in arriving at your decision.’

In 24 C.J.S. Criminal Law, § 1915 at page 971, it is said:

‘The general rule is that where evidence erroneously admitted during the progress of the trial is withdrawn or excluded from the jury, or stricken out by the court, the error is cured.’ Citing State v. Dendy, 34 N.M. 533, 285 P. 486.

The text continues:

‘It will be presumed ordinarily that the jury considered only evidence left in the case by the court.’ And see State v. Dendy, supra.

The text proceeds:

‘Prejudicial error. Nevertheless, striking out or withdrawing evidence does not in all cases cure the error. Where evidence is so strongly calculated to impress itself on the minds of the jury to the prejudice of accused that a subsequent withdrawal or exclusion will not remove the impression caused by its admission, the conviction must be reversed, at least where the maximum punishment, or more than the minimum, was imposed; but such instances have been declared exceptional and extreme.’

As discussing this question in its various phases, see the following New Mexico cases: State v. Stewart, 34 N.M. 65, 67, 277 P. 22; State v. Tinsley, 34 N.M. 458, 462, 283 P. 907; State v. Dendy, 34 N.M. 533, 535, 285 P. 486; State v. Garcia, 46 N.M. 302, 309, 128 P.2d 459.

An attentive study of the record does not disclose any considerations which cause us to conclude that the incident is controlled by the exception rather than by the general rule, or overcome the presumption that the jury considered only the evidence left in by the court. We therefore hold that appellants' first assignment of error is without merit.

The second assignment of error presented by appellants is as follows:

‘The Court erred in over-ruling the motion of defendants that the Jury be instructed to return a verdict of not guilty as to each of them, same being made immediately after the taking of testimony had been concluded.’

As stated heretofore, the defendant Bennister pleaded guilty. He was called as a witness to testify on behalf of the other two defendants and told a story of having gone with the other defendants to hunt antelope or coyote and that they went to the vicinity of a farm owned by Bannister's aunt; that he, Bannister, got permission of his aunt to kill one of her cows in case the antelope hunt proved unproductive; that he, Bannister, told the defendants Compton and Long of this benevolence on the part of his aunt and Compton and Long testified that they believed it and therefore all innocently enough rendered certain aids in clandestinely disposing of the carcass of the animal slain by Bannister and accepted part of the meat in extinguishment of certain financial obligations due from Bannister to them for loans made by them to Bannister in the past and long since overdue and unpaid. Without going greatly into detail, we may say that it was a good story if true, punctured, unfortunately for defendants, here and there with inconsistent and contradictory statements and improbabilities which caused the trial men to view it with incredulity.

After reading the record with care we are unable to say that the verdict is not supported by substantial evidence. Certainly we could not say that all reasonable men must conclude that this evidence is insufficient to produce conviction of defendant's guilt.

It is our conclusion that the trial court committed no error in overruling the defendants' motion for a directed verdict of not...