State v. Nelson

• Decision Date: 04 March 1959
• Docket Number: No. 6462,6462
• Citation: 338 P.2d 301,1959 NMSC 23,65 N.M. 403
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David Cooper NELSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 301

338 P.2d 301

65 N.M. 403

STATE of New Mexico, Plaintiff-Appellee, v. David Cooper NELSON, Defendant-Appellant.

No. 6462.

Supreme Court of New Mexico.

March 4, 1959.

Rehearing Denied May 14, 1959.

Joseph B. Zucht, Richard C. Losh, Albuquerque, for appellant.

Fred M. Standley, Atty. Gen., Fred M. Calkins, Jr., Asst. Atty. Gen., Hilton A. Dickson, Jr., Asst. Atty. Gen., for appellee.

COMPTON, Justice.

Appellant, David Cooper Nelson, was charged with having murdered Ralph Henderson Rainey, and following a trial therefor, the jury returned a verdict of guilty without specifying life imprisonment in lieu of death. Thereupon, appellant was sentenced to death. Motions to set aside the verdict and for a new trial being denied, he prosecutes this appeal.

The case is before us a second time with a like verdict. On the former appeal, State v. Nelson, 63 N.M. 428, 321 P.2d 202, we reversed because we entertained serious doubts as to the voluntariness of his confession admitted in evidence. On this appeal we review the undisputed evidence.

Rainey, then living in California, called Jack Rainey, his son, and stated that he intended to leave his home in California on January 8, 1956, heading for Arvada, Colorado, and expected to arrive in Arvada on January 10, 1956. On January 10, 1956, State Patrolman Edgar C. Bell found the body of a man in an arroyo some 14 feet deep and about 3 feet north of the roadbed of Highway 66 in Valencia County, New Mexico, at a point about 15 miles west of Correo. The head was badly 'smashed in' and just above the right temple there was a small round hole in the skill. There was blood all over the man's face and neck and the rocks in the immediate vicinity of his head were splattered with what was thought to be blood.

An inquest was held and the body was later identified by Jack Rainey and his brother as that of their father, Ralph Henderson Rainey. An autopsy was performed by Dr. Harold Beighley at 8:30 P.M. January 10, 1956. Two holes were found on the right side of the head and also a hole in the left side. A bullet and two small portions of metal were found inside the deceased's head. The doctor stated that the cause of death was gunshot wounds in the head and that the deceased had been dead for some 12 to 48 hours.

The witness Noel Adams testified that on January 8, 1956, he picked up the appellant at Needles, California, and drove him to Kingman, Arizona, and that appellant told him at the time that he was headed for Albuquerque, New Mexico. This witness stated that as he was driving east out of Kingman the next morning, January 9, 1956, he saw appellant standing alongside the highway.

Thereafter on the night of January 10, 1956, appellant appeared at the home of June Patrick in Kimberly, Nevada, and asked her husband for gasoline money, stating he was driving a friend's car. Appellant then left certain items of personal property at the Patrick home, which were later identified as belonging to the deceased.

The witness Grygierczyk testified that on January 13, 1956, he picked up the appellant on the highway between Knowls and Low, Utah. On January 16, 1956, Grygierczyk was contacted by John Helfrich, an agent of the Federal Bureau of Investigation, in connection with an abandoned automobile found in a gully some 100 to 300 yards from the side of the Knowls-Low road. Grygierczyk testified that the point at which this car was discovered was only a short distance from the spot where he had picked up the appellant some three days previously. The abandoned car was a 1955 Pontiac and was viewed in the location where it was discovered by Sheriff Fay Gillette of Tooele County, Utah, by the Agent John Helfrich and by the witness Grygierczyk. The car bore no license plates but it was identified as having belonged to Rainey. The license plates were found hidden nearby.

The right front seat of the car was badly stained, and there was a hole in the back of the seat. Numerous items found in the car were subsequently identified as belonging to the deceased. A kleenex box found in the car was sent to the Federal Bureau of Investigation Laboratory in Washington, D. C., for fingerprint checks. The analysis revealed that the box contained the fingerprints of appellant.

The witness, William O'Reilly, Chief of Detectives, Sheriff's Office, Las Vegas, Nevada, testified that on January 25, 1956, he recovered a 38-Caliber Colt Revolver from the home of Arthur Valde in Las Vegas, Nevada. Appellant had left the revolver with Valde two days previously. A firearms expert testified that the gun found in the Valde home could have been the one used to kill the deceased. Also found in the Valde home was a pair of black oxford shoes which appellant had left there, and which were subsequently identified by Rainey's widow as belonging to the deceased.

Further, on January 23, 1956, appellant was arrested for reckless driving in North Las Vegas, Nevada, and the arresting officer testified that appellant had tried to bribe him, and failing in this, broke arrest and fled in a Buick car which he was driving. In attempting to escape, appellant wrecked the Buick and fled on foot into the desert. A brown leather bag which the witness Grygierczyk testified appellant had in his possession when he picked him up on January 13, 1956, and which Mrs. Rainey testified belonged to the deceased, was found in the wrecked Buick. Also a box of Rainey's clothing was found in the Buick.

Appellant was rearrested in Caliente, Nevada, the next day, and at that time he stated that he had had a loss of memory as to anything that had occurred prior to January 22, 1956, but that he did remember that on that day he was walking along the highway east of Santa Rosa, New Mexico, and that he found an abandoned Buick which he drove to Nevada.

Appellant's first contention is that the court erred in responding to the jury's inquiry for information relating to the possibility of parole or pardon on a verdict of life imprisonment.

After the court had instructed the jury and it had been out for deliberation for an hour and a half, it returned into court and submitted the following question:

'We, the jury request a ruling as to time on life imprisonment. Can the defendant ever be released from prison or his life term be commuted to a lesser term.'

In answer to this inquiry, the court quoted to the jury the constitutional provision relative to the governor's power to pardon and reprieve. The court also quoted the statutory provisions concerning the authority of the Parole Board. After the jury had again retired to continue its deliberations, the defense attorney objected to the court's action. Some thirty-five minutes later the jury returned with a verdict of guilty of murder in the first degree, without a recommendation of life imprisonment in lieu of death.

Appellant urges that the furnishing of such information to the jury, even upon request, was highly prejudicial to him and is reversible error.

Generally, the fixing of punishment for one convicted of crime is the function of the trial judge, and the jury is limited to a determination of the guilt or innocence of the accused. However, Section 40-24-10, NMSA, 1953 Comp., provides in part as follows:

'Every person convicted of murder in the first degree shall suffer death unless the jury trying said cause shall specify life imprisonment in the penitentiary in lieu of death; and in case the jury trying the cause shall specify life imprisonment, the judge shall sentence the person convicted to life imprisonment. * * *'

Under this statute the jury is charged with a two-fold duty; to determine the innocence or guilt of the accused, and then to fix the punishment. In the operation of such a procedure, the courts are divided as to the extent to which the jury is to be informed of the possibility that its sentence may in some manner be set aside, changed, or modified by the laws relating to pardons and paroles. See Annotation in 35 A.L.R.2d 769.

After the most serious consideration, it is the opinion of this court that response to such an inquiry by the jury is not error where, as here, the response is fair and does not indicate what the jury should or should not do.

We strongly doubt that imposed judicial silence in the face of such an inquiry is of much value in safeguarding an accused's interest. The fact that the jury, of its own volition, directed the inquiry to the court indicates that one or more of the jurors had some knowledge of the laws relative to pardon and parole. Such being the case, a refusal to answer would not dispell erroneous notions implanted by a juror with a 'little learning' on the subject, and in all probability would leave the jury in confusion and doubt.

Since the jury has the sole responsibility of fixing the penalty for murder in the first degree, it is our feeling that it can more properly perform this portion of its dual obligation if the trial court is permitted to answer such an inquiry fairly and accurately without attempting in any way to influence the decision as to punishment. State v. Carroll, 52 Wyo. 29, 69 P.2d 542; Liska v. State, 115 Ohio St. 283, 152 N.E. 667; People v. Chessman, 38 Cal.2d 166, 238 P.2d 1001; State v. Meyer, 163 Ohio St. 279, 126 N.E.2d 585; State v. Satcher, 124 La. 1015, 50 So. 835; Griffith v. State, 157 Neb. 448, 59 N.W.2d 701.

Appellant's next point is that the trial court was without jurisdiction inasmuch as Section 41-8-1, NMSA, 1953 Comp., is unconstitutional. The section provides:

'All trials of criminal offenses shall be had in the county in which they were committed: Provided, when an offense shall be committed on the boundary of two counties, or within five hundred yards of such boundary, or where the persons committing such offense shall be on one side, and the injury be done on the other side of the boundary, a trial may be had in either of such counties: Provided, further, that if any mortal wound...