State v. Nabors

• Decision Date: 26 August 1927
• Docket Number: No. 3250.,3250.
• Citation: 32 N.M. 453,259 P. 616
• Parties: STATEv.NABORS.
• Court: New Mexico Supreme Court

32 N.M. 453

259 P. 616

STATE

v.NABORS.

No. 3250.

Supreme Court of New Mexico.

Aug. 26, 1927.

Syllabus by the Court.

Code 1915, § 5573, gives trial judge no discretion as to change of venue when required showing therefor is made, and court's finding that defendant had filed affidavit for change of venue, supported by affidavits of two disinterested witnesses and counsel's stipulation for review of only whether change of venue was discretionary in trial judge, shows refusal of change of venue was error.

Code 1915, § 5573, relating to change of venue, gives district judge no discretion, and when proper showing is made, he has duty to grant change, so-called discretion of court coming into play only in determining existence of grounds of motion (that is, whether requirements of statute have been met), and in such case court may examine witnesses in support of grounds of motion to ascertain who they are, whether they have knowledge of conditions about which they made affidavit, and whether they are fair, impartial, and trustworthy.

Appeal from District Court, Bernalillo County; Helmick, Judge.

William Nabors appeals. Reversed and remanded, with direction.

Watson, J., dissenting.

Stipulation and court's finding that defendant and two others filed affidavits that fair trial could not be had held to require change of venue. Code 1915, § 5573.

Thos. J. Mabry, of Albuquerque, for appellant.

Robert C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

PARKER, C. J.

The only error assigned is the refusal of the court to grant appellant's motion for change of venue. The motion itself was purely formal, and was based upon the following affidavit containing the grounds of the motion and specific facts:

“Comes now William Nabors, who, being first duly sworn, upon his oath deposes and says: That he is the defendant in the above entitled and numbered cause; that he believes, and therefore makes oath and affirms, that he cannot obtain a fair trial in the county of Bernalillo wherein this cause is now pending, for the following reasons:

(a) Because the inhabitants of such county (meaning Bernalillo county) are prejudiced against this defendant.

(b) Because, by reason of public excitement and local prejudice in such county (meaning Bernalillo county) in regard to the case and the questions involved therein, an impartial jury cannot be obtained in such county (meaning Bernalillo county) to try the same.

(c) That, immediately after the arrest of this defendant charged with the offense under which he is to be tried herein, a great deal of notoriety and publicity was given in all of the newspapers of said county, in both English and Spanish, touching upon the alleged crime for which this defendant is charged, and the said publicity has continued to be given down to and at the present time.

(d) That on or about the 12th day of March, 1927, considerable notoriety was given in all of the daily newspapers published in Bernalillo county, N. M., and in the weekly Spanish language newspapers, to an alleged abortive effort of this defendant to secure his freedom through a prison breach and jail break, one of said newspapers at least employed a five-column headline to break the story to the public that this defendant, a dangerous character and held in jail without bond upon a most serious offense, was about to break prison and be and become at large upon the local community; whereas in truth and in fact no effort on the part of defendant or any confederate was ever made for any such break, the said publicity in this connection having been the pure and simple invention of special officers of the Santa Fé Railway Company, which corporation is making itself vitally interested in the prosecution of this case, and said report and stories are all entirely and wholly without any foundation whatsoever; nevertheless and notwithstanding the same has inflamed passion and aroused the prejudice of a great and large number of people of Bernalillo county, which has made it impossible for defendant to obtain and secure a fair and impartial jury in Bernalillo county to try his said cause.”

The supporting affidavit is as follows:

“Come now Al Mathieu and Edward Nunlist, who being first duly sworn, upon their oath, each for himself and not one for the other, depose and say: That he has read the above and foregoing motion and affidavit of defendant for change of venue in the above entitled and numbered cause, and that he believes the facts stated in said motion and also the foregoing facts stated and set out in the affidavit of defendant, and all of said facts therein stated to be true, and that he believes on account of and because of the facts stated in said affidavit of defendant, an impartial jury cannot be obtained in Bernalillo county, N. M., to try the defendant upon the within charge; and affiants say further under oath and each for himself and not one for the other that he is a disinterested person and has no interest in said cause of any kind or character, and that in fact he is not acquainted with and does not know either the said defendant or his family or any of them.”

The material part of the order denying the motion is as follows:

“And the defendant having produced two disinterested witnesses, Al Mathieu and Edward Nunlist, being the two supporting witnesses to the said motion for change of venue, and said witnesses having testified in support of and their testimony fully supporting said...