State v. Lucero
| Decision Date | 19 February 1971 |
| Docket Number | No. 480,480 |
| Citation | 482 P.2d 70,1971 NMCA 15,82 N.M. 367 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Richard LUCERO, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals his conviction of rape. He raises three points for reversal, namely, (1) jurisdiction of the State to try the crime, (2) failure to give a tendered instruction, and (3) failure of the trial court to honor an affidavit of disqualification.
We affirm.
JURISDICTION OF THE STATE TO TRY THE CRIME.
Defendant contends that the crime occurred on the Isleta Pueblo and since the State failed to prove that Indians were not involved the court was without jurisdiction to try the crime. Even assuming that defendant accurately states the rule that the State has the burden of proving the non-Indian status of the defendant, after it has been shown that a crime occurred in Indian Country, there is no basis for application of the assumed rule in this case.
The police officer testified that he knew the scene of the crime was in Bernalillo County but he did not know whther it was on the Isleta Pueblo. The evidence is that the rape occurred in Bernalillo County but there is no evidence that the rape occurred on lands of the Indian reservation. Absent some showing that the crime occurred on Indian land, there is no basis for considering the legal claim raised by defendant.
Further, it is a fundamental rule that the burden of demonstrating want of jurisdiction rests upon the party asserting such want, particularly where the challenge is applied to a court exercising general jurisdiction as is the case here. State v. Reyes, 78 N.M. 527, 433 P.2d 506 (Ct.App.1967). Defendant failed in his burden of demonstrating want of jurisdiction.
DEFENDANT'S REQUESTED INSTRUCTION.
Defendant's requested instruction was denied. It stated:
'You are further instructed that the Court takes judicial notice of the laws of nature and the scientific facts connected with the human anatomy and this Court takes judicial notice of the fact that a female, who has never previously had intercourse and whose maidenhood has never before been penetrated, will ordinarily hemorrhage and bleed to a considerable extent, after indulging her first act of sexual intercourse, and you, as jurors, are bound to accept this scientific fact as true in weighing the evidence in this case.'
Defendant cites neither medical nor legal authority to support the instruction. Novak v. Dow, 82 N.M. 30, 474 P.2d 712, (Ct.App.1970).
Further, a medical witness refused to substantiate defendant's theory proposed by the instruction. The court could not take judicial notice of a...
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State v. Cutnose
...no evidence as to lack of jurisdiction, defendant did not meet his burden in connection with the pretrial motions. State v. Lucero, 82 N.M. 367, 482 P.2d 70 (Ct.App.1971); compare Begay v. First National Bank of Farmington,84 N.M. 83, 499 P.2d 1005 At trial, defendant renewed his jurisdicti......
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Tornero v. United States
...lack of jurisdiction, ... bears the burden of presenting the facts that would establish that lack." Id. (citing State v. Lucero , 82 N.M. 367, 482 P.2d 70, 71 (App. 1971) )."[A] crime may be the result of a series of acts ... [and] [t]he direct consequences may be made to occur at various t......
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State v. Sanchez
...supra, to facts similar to those in this case in State v. Baca, 81 N.M. 686, 472 P.2d 651 (Ct.App.1970). See also, State v. Lucero, 82 N.M. 367, 482 P.2d 70 (Ct.App.1971). After amendment, § 21--5--9, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973) provides that the affidavit of disqualification shal......