State v. Ramirez

Decision Date09 September 1968
Docket NumberNo. 8442,8442
Citation444 P.2d 986,1968 NMSC 148,79 N.M. 475
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Henry RAMIREZ, Defendant-Appellant.
CourtNew Mexico Supreme Court
OPINION

NOBLE, Justice.

Henry Ramirez has appealed from a life sentence following his conviction of first-degree murder.

He was charged with the felony-murder of L. C. Wiley--that is, the information charged Ramirez with Wiley's murder by committing a battery upon him during the commission of the felony of robbery. Ramirez asserts that the court erred in refusing to instruct on one of his theories of the case--that is, that he was not at the place where the crime was committed, and erred in particular in refusing a tendered instruction charging the jury that the evidence must establish the presence of the defendant at the place and time of the commission of the offense beyond a reasonable doubt.

A defendant is entitled to have instructions given upon his theory of the case and, at his request, an instruction defining the law applicable to his defense if there is evidence reasonably tending to establish it. To avail himself of this right, the defendant must tender a correct instruction. State v. Sanders, 54 N.M. 369, 225 P.2d 150; State v. Jones, 52 N.M. 235, 195 P.2d 1020; State v. Hughes, 43 N.M. 109, 86 P.2d 278; State v. Rogers, 31 N.M. 485, 247 P. 828; State v. Martinez, 30 N.M. 178, 230 P. 379.

The tendered instruction, which was refused, reads:

'12. The evidence must prove beyond a reasonable doubt that the defendant was actually present at the time the crime is alleged to have been committed, before the jury can convict him. If the evidence adduced at the trial does not beyond a reasonable doubt satisfy each individual member of the jury that the defendant was actually present at the time the crime is alleged to have been committed, then the defendant cannot be convicted.'

It will be noted that the request was not of an alibi instruction--that is, that there was evidence that at the time of the crime the defendant was at such a distant and different place that he could not have participated in its commission, Black's Law Dictionary, p. 95 (4th Ed.); State v. Parsons, 206 Iowa 390, 220 N.W. 328, nor does the defendant now argue that the tendered instruction was strictly that of alibi.

A state's witness testified that while working in a store next door, she heard suspicious noises in the jewelry store and, upon investigation, saw Mr. Wiley lying on the floor, apparently injured. She also saw broken glass and a broken show case. She immediately caused the police to be called; saw the defendant in an adjoining alley; watched him go into a barber shop; and told police officers where to find him. There was testimony that the police were called at two-fifteen p.m. Defendant calls our attention to his own testimony as supporting his requested instruction. He said he arrived at a bar, adjacent to the alley where the state's witness saw him, at about twelve-thirty; that he had a few drinks and went down the alley to the barber shop.

The instructions are to be considered as a whole and it is not error to refuse a requested instruction, even though it states a correct principle applicable to the case, if it has been covered by other instructions given. State v. White, 77 N.M. 488, 424 P.2d 402; State v. Selgado, 76 N.M. 187, 413 P.2d 469; State v. Peke, 70 N.M. 108, 371 P.2d 226; State v. Skipworth, 64 N.M. 175, 326 P.2d 669. The record discloses that the court, in connection with the instruction on aiding and abetting, instructed the jury:

'16. * * * if you find to your satisfaction and beyond a reasonable doubt that Henry Ramirez, together with another person, committed the offense charged, that is that they entered Wiley's Watch Shop and either of them inflicted injuries upon L. C. Wiley during the commission of or attempt to commit a felony * * *.' (Emphasis added.)

There was, therefore, the direct charge that the jury must find beyond a reasonable doubt that Ramirez was in the store when the offense occurred and that either he or his companion inflicted upon Wiley the injuries of which he later died. We think the jury was adequately instructed on that issue. Absent the tender of a requested instruction, there is no duty upon the trial court to instruct specifically upon the subject of alibi. 5 Wharton's Criminal Law & Procedure, § 2098; United States v. Stirone, 311 F.2d 277 (3d Cir. 1962); People v. Gomez, 215 Cal.App.2d 314, 30 Cal.Rptr. 139; State v. Keck, 389 S.W.2d 816 (Mo.1965); Contra, Ferguson v. State, 218 Ga. 173, 126 S.E.2d 798.

Following the imposition of sentence, and within ten days, defendant filed a motion for a new trial upon the ground of newly discovered evidence. Such a motion calls for the exercise of the sound discretion of the trial court and is properly denied unless the newly discovered evidence is such that (1) it will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such that it could not have been discovered before trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative; and (6) it must not be merely impeaching or contradictory. State v. Gomez, 75 N.M. 545, 408 P.2d 48; State v. Fuentes, 67 N.M. 31, 351 P.2d 209; State v. Stewart, 34 N.M. 65, 277 P. 22; State v. Luttrell, 28 N.M. 393, 212 P. 739.

The basis of the motion was an affidavit of Rose Quintaro, an employee of the sheriff, that before reaching the watch shop and in its immediate vicinity, she passed two men walking rapidly. She heard a groan from the watch shop and upon entering the store found Mr. Wiley lying behind the counter; he said, 'Two men hit me'; she telephoned the police from the adjoining store without giving her name. Ramirez was not one of the men she saw near the store. She testified at length at the hearing on the motion. She testified that after calling the police, she immediately went out of the store and that police and several people were at the shop. Her testimony was that she saw these men a block away from the watch shop; the police were in the shop with the suspect when she finished telephoning. The trial judge's remarks shown in the record indicate that her testimony was confused and her statements so inconclusive that he thought little or no weight would be given to her testimony by a jury. From our examination of the testimony by the witness, it does not appear that the newly discovered evidence would probably change the result if a new trial were granted. Based upon the...

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