State v. Plummer.

• Decision Date: 23 October 1940
• Docket Number: No. 4566.,4566.
• Citation: 44 N.M. 614,107 P.2d 319
• Parties: STATEv.PLUMMER.
• Court: New Mexico Supreme Court

44 N.M. 614

107 P.2d 319

STATE

v.PLUMMER.

No. 4566.

Supreme Court of New Mexico.

Oct. 23, 1940.

Appeal from District Court, Torrance County; Numa C. Frenger, Judge.

Forest R. Plummer was convicted of manslaughter, and he appeals.

Affirmed.

In murder prosecution, where defendant, in support of plea of self-defense, testified that he acted in fear or terror of bodily harm, trial court properly submitted issue of voluntary manslaughter.

J. Lewis Clark, of Estancia, for appellant.

Filo M. Sedillo, Atty. Gen., and Fred J. Federici, Asst. Atty. Gen., for appellee.

ZINN, Justice.

The defendant (appellant here) was charged with the murder of Tomas Sanchez. He waived preliminary hearing and was bound over to the district court. He was thereafter arraigned upon an information filed charging him with the crime of murder and plead not guilty.

On the day after his arraignment the defendant filed a motion for continuance on the ground that he had insufficient time to prepare his defense and was unable to ascertain the residences of the State's witnesses. The motion was heard by the court and overruled, to which action of the court the defendant excepted.

He went to trial on the charge before a jury which returned a verdict of guilty of manslaughter. He was sentenced by the court to not less than three, nor more than four years in the penitentiary. After the verdict and before sentence, the defendant filed a motion in arrest of judgment and verdict, which motion was overruled. The defendant duly objected and excepted to such ruling. This appeal followed.

Two questions are raised on appeal. The first is predicated on the court's action in denying the motion for continuance. The second on the action of the court in overruling the defendant's motion in arrest of judgment.

As to the first point raised, we note from the record that the crime was committed on September 23, 1939. On the same day he was arrested. He was charged with murder before a Justice of the Peace on September 25, 1939, in which court he waived preliminary hearing. On October 9, 1939, the information against the defendant was filed. On this information there are endorsed the names of the State's witnesses. Trial of the cause was commenced on October 18, 1939, being nine days after the filing of the information and twenty-three days after the preliminary hearing.

[1] In his motion for continuance, the defendant first claims that he had insufficient time to prepare his defense to the charge because the respective residences of the State's witnesses were to him unknown, and that he was unable with due diligence to ascertain the residence of said witnesses.

The defendant had ample opportunity, long before the trial, to ascertain the residence of the State's witnesses. His first opportunity was at the preliminary hearing before the Justice of the Peace. In the absence of the waiver by the defendant of his preliminary hearing the State probably would have called its principal witnesses to testify. At that time the defendant or his counsel, by cross-examination, or otherwise, could have ascertained the residence of at least the witnesses at such hearing, and probably the place of residence of all other witnesses. The second opportunity was through the district attorney or the county sheriff. These officials undoubtedly knew the residence of these witnesses. There is no showing that the defendant or his counsel at any time tried to obtain this information from these officials. The motion for continuance was filed on October 10th and heard by the court on October 13th. On that date the defendant could have requested that the court order these officials to disclose the residence of these witnesses, if they knew their whereabouts. None of these things were done.

[2] As to the merit of defendant's general allegation in his motion for continuance to the effect that he had “insufficient time to otherwise prepare his defense to this charge”, and upon which general allegation he asked that the case be continued to the next term of court, we are unimpressed. No showing is made by the defendant that twenty-three days was an insufficient time to prepare a defense. No showing is made of injury or prejudice to the defendant. Under the circumstances presented to us in this case we cannot say that the trial court did abuse its discretion in overruling or denying defendant's motion for continuance.

[3] We have repeatedly held that the granting or denying of a motion for continuance is within the discretion of the trial court, and unless such discretion has been abused to the injury of the defendant, the denial of such motion will not constitute error. Territory v. Emilio, 14 N.M. 147, 89 P. 239; Territory v. Price, 14 N.M. 262, 91 P. 733; Territory v. Lobato, 17 N. M. 666, 134 P. 222, L.R.A.1917A, 1226; State v. Pruett, 22 N.M. 223, 160 P. 362, L.R.A.1918A, 656; State v. Starr, 24 N.M. 180, 173 P. 674; State v. Garcia, 26 N.M. 70, 188 P. 1104; State v. Kelly, 27 N.M. 412, 202 P. 524, 21 A.L.R. 156; State v. Renner, 34 N.M. 154, 279 P. 66; State v. Romero, 34 N.M. 494, 285 P. 497; and State v. Burrus, 38 N.M. 462, 35 P.2d 285.

As to the second claim of error, the record shows that the trial court instructed the jury on murder in the first degree, murder in the second degree and voluntary manslaughter. The defendant's theory of the homicide being self-defense, the court properly instructed the jury on the law of self-defense.

The record shows that on cross-examination, the defendant testified as follows:

“Q. I believe you testified a while ago you were scared and you thought they were going to do something to you? A. I did. I had no right to think anything else.”

The jury had the right to believe or disbelieve any part of the evidence. The jury did not see fit to accept the theory of the State either as to murder in the first degree or murder in the second degree. Likewise, the jury apparently did not see fit to accept the defendant's theory of self-defense. It apparently preferred to believe that the defendant...