State v. Paschall
| Decision Date | 18 January 1965 |
| Docket Number | No. 7511,7511 |
| Citation | 398 P.2d 439,74 N.M. 750,1965 NMSC 8 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Bill E. PASCHALL, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Neal & Neal, Hobbs, William M. Siegenthaler, Artesia, for appellant.
Earl E. Hartley, Atty. Gen., George Richard Schmitt, James V. Noble, Asst. Attys. Gen., Santa Fe, for appellee.
Defendant has appealed from conviction of four felonies charged in separate criminal information which were consolidated for trial over his objection.
He was charged in cause 2689 with concealing an engine, pump and welder about March 8, 1960, the property of Fair Oil Company. In cause 2691, defendant was charged with larceny of pipe on December 7, 1959 from Sunset International Petroleum Corporation. Cause 2752 charged defendant with receiving stolen property of Johnnie Sparger in September of 1961. An information in three counts charged Paschall in cause 2838 with (1) receiving stolen property belonging to Sacra Brothers on February 7, 1962; (2) selling stolen property to C. W. Dunn of March 8, 1960; and (3) larceny of property from Fair Oil Company on March 8, 1960. Defendant was acquitted of a further count in cause 2838 in a former trial. The trial court consolidated for trial all of the charges contained in the four separate informations over the strenuous objection of the defendant. By subsequent motions and objections at every stage of the trial, defendant preserved his objection to the consolidation and sought severance of the charges and election by the state.
A determination of this appeal turns on whether several separate informations against a single defendant charging him with separate felonies alleged to have been committed at widely separated times and places and involving the property of different owners may be consolidated for trial over the objection of the accused. Consolidation, as here used, means trying the several differnt criminal informations, charging separate offenses, at one time and before one jury--a procedure which involves separate verdicts respecting each offense charged and tried.
It is permissible to charge separate offenses in a single information if they relate to the same transaction or event, or to connected transactions and, under some circumstances not pertinent here, they may be tried together before the same jury. State v. Brewer, 56 N.M. 226, 242 P.2d 996; State v. Allen, 59 N.M. 139, 280 P.2d 298. But, correlatively, two or more separate and distinct felonies occurring at different times and places, and relating to property belonging to different owners, may not be jointly tried over the defendant's objection. People v. Stingley, 414 Ill. 398, 111 N.E.2d 548; Hummel v. People, 98 Colo. 98, 52 P.2d 669; State v. Reichert, 226 Ind. 171, 78 N.E.2d 785; State v. Brown, 317 Mo. 361, 296 S.W. 125; Green v. State, 134 Fla. 216, 183 So. 728; Shuford v. State, 4 Okl.Cr. 513, 113 P. 211; People v. Jackman, 96 Mich. 269, 55 N.W. 809; see, also, 5 Wharton's Criminal Law and Procedure, Sec. 1935; and State v. Wilson, 25 N.M. 439, 184 P. 531.
We think the question whether separate charges contained in separate informations may properly be joined for trial is largely governed by the same considerations as are applied in passing on an application to sever or require an election between separate counts if these same offenses could have been and were charged in a single information or indictment. State v. Compton, 57 N.M. 227, 257 P.2d 915. It was said in State v. Brewer, supra, that the trial judge, in passing on such motions, is called upon to exercise a broad and sound judicial discretion of the highest order, the exercise of which depends in a large measure upon the special circumstances of each case. It is fundamental, however, that courts must not permit a defendant to be embarrassed in his defense by a multiplicity of charges to be tried before one jury. McElroy v. United States, 164 U.S. 76, 17 S.Ct. 31, 41 L.Ed. 355; Hummel v. People, supra. In discussing the question and the power and duty of the court to compel the prosecution to elect on which offense it would try the defendant, the author at 5 Wharton's Criminal Law and Procedure, Sec. 1936, said:
'Such joinder cannot be sustained when the parties are not the same and when the offenses are in no wise parts of the same transaction and must depend upon evidence of a different state of facts as to each or some of them.'
The mere fact that the four informations in this case charge a single defendant rather than more than one does not of itself change the rule. MeElroy v. United States, supra.
The defendant was charged in four informations with six separate crimes. An examination of these four informations upon which the defendant was tried before one jury...
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1998 -NMSC- 14, State v. Duffy
...the special circumstances of each case," the trial court possesses broad discretion in resolving such motions. State v. Paschall, 74 N.M. 750, 752, 398 P.2d 439, 440 (1965). We will reverse only if that discretion has been abused. See State v. Griffin, 1993-NMSC-071, 116 N.M. 689, 693, 866 ......
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...of the motion to sever. For purposes of trial, defendant moved that each of the twelve counts be severed. Relying on State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965), defendant claims the trial court erred in denying the motion to sever. State v. Paschall, supra, seems to indicate that w......
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...joined under Rule 5-203(A) and that the court abused its discretion in failing to sever under Rule 5-203(C). In State v. Paschall, 74 N.M. 750, 398 P.2d 439 (1965), a pre-rules of criminal procedure case, our supreme court noted that the question of whether charges are properly joined is la......
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...defendant to be embarrassed in his defense by a multiplicity of charges to be tried before one jury.'" (Quoting State v. Paschall, 74 N.M. 750, 752-53, 398 P.2d 439, 440 (1965).)). As this Court recently stated, "[t]he granting of a severance is discretionary, and one test for abuse of disc......