State v. Lujan
Decision Date | 21 March 1966 |
Docket Number | No. 7897,7897 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Ernest LUJAN, Defendant-Appellant. |
Court | New Mexico Supreme Court |
William W. Osborn, Roswell, for appellant.
Boston E. Witt, Atty. Gen., Gary O. O'Dowd, Asst. Atty. Gen., Santa Fe, for appellee.
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 forty years was rendered by the trial court, acting under the habitual criminal provisions, §§ 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 ( ) 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:
* * *'
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.
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 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:
* * *'
What was said there concerning able counsel is true in this case. When appellant failed to tender an instruction on the defense of entrapment, he waived any right to such an instruction. He cannot now ask for a new trial due to such failure.
Appellant next contends that since § 54-7-15, N.M.S.A., 1953 Comp., provides for enhanced punishment for repeated violations of the Narcotic Drug Act, the general enhanced-punishment provisions concerning habitual criminals, §§ 40A-29-5 through 7, supra, are not applicable to repeated narcotic violations.
This is a case of first impression in New Mexico and, because narcotic drugs acts and habitual criminal statutes vary greatly among the states, there is little precedence on which to rely.
Section 54-7-15 of the New Mexico Narcotic Drug Act provides:
'Any person violating the foregoing sections (54-7-13, 54-7-14) shall, upon conviction thereof, be punished as follows:
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