State v. Lujan

• Citation: 412 P.2d 405,76 N.M. 111,1966 NMSC 51
• Decision Date: 21 March 1966
• Docket Number: No. 7897,7897
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest LUJAN, Defendant-Appellant.
• Court: Supreme Court of New Mexico

Page 405

412 P.2d 405 76 N.M. 111 STATE of New Mexico, Plaintiff-Appellee,
v.
Ernest LUJAN, Defendant-Appellant. No. 7897. Supreme Court of New Mexico. March 21, 1966.

[76 NM 112] William W. Osborn, Roswell, for appellant.

Boston E. Witt, Atty. Gen., Gary O. O'Dowd, Asst. Atty. Gen., Santa Fe, for appellee.

CHAVEZ, Justice.

On January 8, 1965, appellant was found guilty of two counts of violation of § 54-7-14, N.M.S.A., 1953 Comp., which prohibits the sale, giving, or delivery of a narcotic drug without compliance with the Narcotic Drug Act.

When brought before the trial court for sentencing, appellant's attorney moved to have the information charging appellant with being an habitual criminal dismissed. The motion was denied.

Appellant then admitted being the same person who was convicted of taking a motor vehicle without the consent of the owner in 1956, and of unlawfully possessing narcotics in violation of § 54-7-13, N.M.S.A., 1953 Comp., in 1960.

Appellant was sentenced to two concurrent terms in the penitentiary, of not less than five years nor more than twenty years for the two narcotic counts of which appellant was found guilty on January 8, 1965; also another term in the penitentiary, to run concurrently with the other two terms, of not less than ten years nor more than

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forty years was rendered by the trial court, acting under the habitual criminal provisions,[76 NM 113] §§ 40A-29-5 and 40A-29-7, N.M.S.A., 1953 Comp.

Appellant's first contention is based on the allegation that appellant's testimony showed evidence of entrapment, and that the trial court should have instructed the jury on the defense, whether or not it was requested to do so. We do not reach the State's alternative answer to this contention, in which it alleges that the evidence did not warrant such an instruction.

The record fails to show tender of an instruction on entrapment, and it appears from the wording of appellant's contention that there was no such tender. Appellant cites Gerrard v. Harvey & Newman Drilling Company, 59 N.M. 262, 282 P.2d 1105, as constructing Rule 51(a) and 51(g) of the Rules of Civil Procedure (Rule 51(a) is made applicable to criminal cases by its own language) to require the trial court to give the jury the fundamental law applicable to the facts of the case before it. Not only is that case one concerning workmen's compensation but, as the State indicates, a single-judge opinion on the point for which appellant cites it. As this court said in Smith v. Spence & Son Drilling Company, 61 N.M. 431, 301 P.2d 723:

'* * * Actually, since two of the justices in the Gerrard case dissented and two specially concurred, the opinion of Mr. Justice Kiker becomes a majority opinion upon the single point upon which he and the specially concurring justices agree, namely, the award of a new trial for error in giving Instruction No. 5, as mentioned in the specially concurring opinion. * * *'

Examined further, Gerrard v. Harvey & Newman Drilling Company, supra, does not help appellant. The example given to support the statement which appellant cites reads:

'* * * To illustrate: if, in a homicide case, the facts presented were such that the defendant might be convicted of murder in the first degree, or the second degree or for voluntary manslaughter, as the jury might determine, then under (a) of rule 51 it is the duty of the court, whether requested so to do or not, to instruct the jury as to each of said degrees. Failure to do so would offend against subsection (a). To the contrary, however, if threats by either deceased or the defendant should be shown by the evidence, the burden would not rest on the court to discuss threats unless requested by defendant in writing before the retirement of the jury. * * *'

The entrapment defense suggested by the appellant has an effect similar to that which threats might have in a homicide case. The quoted portion of the opinion clearly places the burden of requesting instructions concerning such matters on the defendant.

[76 NM 114] Recent criminal cases decided by this court have clearly adopted the view that the defendant must tender this type of instruction before he can be heard to complain of the court's failure to give it.

In State v. Johnson, 64 N.M. 83, 324 P.2d 781, the court was asked to hold that, although no request for an instruction on impotency in a rape case was made, the trial court should have done so on its own motion. The court said:

'This Court has held that it is not error for the trial court to fail to instruct upon a specific defense if the defendant did not request and tender a proper instruction on that point. * * * A proper instruction must have been submitted to the trial court in order to preserve for review an error of the trial court in an instruction. * * *'

This court further diminished what was said in Gerrard v. Harvey & Newman Drilling Company, supra, in State v. Montoya, 72 N.M. 178, 381 P.2d 963. Rejecting a contention that fundamental error existed, when the court failed to instruct on voluntary manslaughter in a homicide trial, we there said:

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