State v. Mosley

• Decision Date: 19 July 1965
• Docket Number: No. 7599,7599
• Citation: 404 P.2d 304,1965 NMSC 81,75 N.M. 348
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Marlin Lee MOSLEY, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 304

404 P.2d 304

75 N.M. 348

STATE of New Mexico, Plaintiff-Appellee, v. Marlin Lee MOSLEY, Defendant-Appellant.

No. 7599.

Supreme Court of New Mexico.

July 19, 1965.

Earl E. Hartley, Atty. Gen., Thomas A. Donnelly, George Richard Schmitt, Asst. Attys. Gen., Santa Fe, for appellee.

Claude S. Sena, Charles S. Solomon, Santa Fe, for appellant.

NOBLE, Justice.

Marlin Lee Mosley has appealed from the judgment following his conviction by a jury of second degree murder and from the sentence imposing an increased punishment because of two prior convictions.

Although ten separate points are relied upon for reversal, we shall discuss allied questions together. The precise basis of the defendant's attack upon the trial court's denial of his motion for a remand for a preliminary hearing is not clear. Mosley was first charged with the murder of James Jackson by a criminal complaint filed before a justice of the peace, but, before a preliminary hearing was held, an indictment was returned by a grand jury charging him with the same crime, and the case thereafter proceeded entirely upon the indictment. The defendant appears to argue that Art. II, Sec. 14 of the New Mexico Constitution prohibits his prosecution without a prior preliminary hearing, and that without it he was not properly informed of the charge against him. However, a reading of Art. II, Sec. 14, clearly reveals that no right to a preliminary examination exists when the presentment against an accused is by a grand jury indictment.

We note that the defendant requested and was furnished a bill of particulars advising that a conviction of first degree murder would be sought upon allegations that the crime was committed by shooting the victim with a 22-caliber revolver twice in the back and was perpetrated from a deliberate and premeditated design unlawfully and maliciously to effect the death of a human being. The district attorney stated in open court that there would be no attempt to prove the alleged murder by (a) poison, (b) lying in wait, (c) torture, or (d) that it was committed in perpetration or attempting to perpetrate a felony. Defendant urges the court's denial of a second motion for a bill of particulars asking the state to specify the acts of the defendant which would be relied upon to establish first degree murder as reversible error.

The object of a bill of particulars in criminal cases is to enable the defendant to properly prepare his defense, State v. Graves, 73 N.M. 79, 385 P.2d 635, and, to achieve that fundamental purpose, it must state as much as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged, State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1. However, the district attorney is not thereby required to plead evidence, nor is the bill of particulars required to be in as much detail as before adoption of the short form charging crimes. State v. Graves, supra. A defendant in a murder case is entitled to know the exact date and the approximate time of day, the exact place where the body was found, and a description and identification details of the means or weapon used. People v. Courtney, 40 Misc.2d 541, 243 N.Y.S.2d 457. Our careful examination of the record discloses that the defendant was furnished with those facts to which he was entitled.

We think the objection to the indictment on the ground that the convening of the grand jury by a taxpayer's petition was illegal because obtained by fraud is without merit. A grand jury may be convened either upon a taxpayer's petition or by an order of the district judge. Const. Art. II, Sec. 14. Even though a taxpayer's petition for a grand jury was filed, that was not the method actually utilized to convene the grand jury, because, prior to drawing the panel, the district court entered what can only be interpreted as an order convening the grand jury.

Complaint is made of the trial court's denial of a motion for a directed verdict of acquittal, because (1) it is insisted that the uncontradicted evidence showed that the defendant could not have killed James Jackson; (2) the state failed to disprove exculpatory matter contained in defendant's extra judicial statement; and (3) there is a variance between the charge and the proof.

It is well settled in this jurisdiction that the court should not direct a verdict of acquittal if there is substantial evidence to support a criminal charge. Kilpatrick v. State, 58 N.M. 88, 265 P.2d 978; State v. Martin, 53 N.M. 413, 209 P.2d 525; State v. Renner, 34 N.M. 154, 279 P. 66; State v. Ulibarri, 28 N.M. 107, 206 P. 510. Without detailing the voluminous evidence adduced at the trial, suffice it to say that, while there is conflicting evidence, there are facts and circumstances which substantially tend to support the charge against the defendant.

By his extra-judicial statement, the defendant said that he was struck on the head and knocked down immediately upon going outside the building, and that he took a revolver from his pocket and shot at a person who was on top of him. It is asserted that this claim of self-defense was not disproved by the state and that, therefore, his conviction must be reversed. We are clearly committed to the rule that if the state offers a statement of the accused containing exculpatory matter, it must overcome the defendant's claim of excuse or justification. State v. Casaus, 73 N.M. 152, 386 P.2d 246; State v. Garcia, 57 N.M. 665, 262 P.2d 233; State v. Langdon, 46 N.M. 277, 127 P.2d 875. An examination of this record, though, shows that the state did offer proof which, if believed by the jury, was sufficient to overcome the defendant's claim of self-defense. There is not only testimony that the...