State v. Peoples

• Decision Date: 22 August 1961
• Docket Number: No. 6863,6863
• Citation: 1961 NMSC 121,69 N.M. 106,364 P.2d 359
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Mary Helen PEOPLES, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 359

364 P.2d 359

69 N.M. 106

STATE of New Mexico, Plaintiff-Appellee, v. Mary Helen PEOPLES, Defendant-Appellant.

No. 6863.

Supreme Court of New Mexico.

Aug. 22, 1961.

Timothy P. Woolston, Albuquerque, for appellant.

Earl E. Hartley, Atty. Gen., Norman S. Thayer, Jr., Asst. Atty. Gen., for appellee.

COMPTON, Chief Justice.

This is an appeal from an order invoking a suspended sentence. The record is fraught with error of a fundamental nature.

On October 31, 1958, the appellant, Mary Peoples, was sentenced to serve a term in the New Mexico Penitentiary of not less than one year nor more than five years. The sentence was then suspended by the court during her good behavior.

Thereafter, on August 2, 1960, an information was filed by the district attorney charging Mary Helen Peoples and others with the commission of a felony. On this charge, the parties were held for trial before the district court by the committing magistrate.

Subsequently, on August 5, 1960, the district attorney moved to invoke the suspended sentence because the appellant allegedly had violated the terms of the suspension. Thereupon, the trial court, upon the mere filing of the information and over appellant's denial of her identity with Mary Helen Peoples, named in the information filed August 2, 1960, and over her insistence that she be afforded a trial by jury on the question of identity, entered an order invoking the suspended sentence.

There is no room to doubt that due process was effectively denied the appellant. The mere criminal charge was not evidence and afforded no legal basis for the action taken by the court. She was entitled to be heard on the question whether she had violated the conditions upon which the sentence against her had been suspended. She was also entitled to a trial by jury on the question of identity. Ex parte Lucero, 23 N.M. 433, 168 P. 713, L.R.A.1918C, 549. Compare Local 890 of International Union of Mine, etc. v. New Jersey Zinc Co., 58 N.M. 416, 272 P.2d 322.

In Ex parte Lucero, supra, this court, passing upon an almost identical situation factually, said:

'* * * Here the sentence was suspended during good behavior, which necessarily involves the determination of a question of fact, in which determination the defendant is entitled to be heard. In such a determination the defendant is not entitled to a jury trial * * * except in cases he pleads want of identity of himself and the person originally sentenced * * *.' [23 N.M. 433, 168 P. 715.]

The state strongly contends that the appellant did not save for review the error of which she now...