State v. Renner.

• Decision Date: 11 June 1929
• Docket Number: No. 3411.,3411.
• Citation: 34 N.M. 154,279 P. 66
• Parties: STATEv.RENNER.
• Court: New Mexico Supreme Court

34 N.M. 154

279 P. 66

STATE

v.RENNER.

No. 3411.

Supreme Court of New Mexico.

June 11, 1929.

Syllabus by the Court.

It is not error to admit in evidence signatures made by a party while under arrest, if said signatures were made voluntarily.

The granting or denying of a motion for continuance upon the ground of insufficient time to prepare for trial 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.

A signature voluntarily made by the defendant in the presence of the jury, and while testifying in his own behalf, is admissible in evidence.

A motion for a directed verdict of not guilty will be denied, when there is substantial evidence of guilt which the jury might well believe.

A defendant going to trial without arraignment and plea, and without calling the lack of same to the attention of the trial court, waives such right, and cannot raise such question for the first time in the appellate court.

Appeal from District Court, Torrance County; Owen, Judge.

Elmer Renner was convicted of stealing cattle, and he appeals. Affirmed.

Granting or denying continuance on ground of insufficient time to prepare for trial is within trial court's discretion, and will not constitute error, unless discretion has been abused.

J. Lewis Clark, of Estancia, for appellant.

M. A. Otero, Jr., Atty. Gen., for the State.

CATRON, J.

Elmer Renner, charged with stealing 40 head of neat cattle, was convicted in the district court of Torrance county, and appeals.

The criminal information, so far as material, charges that Elmer Renner, of the county of Torrance, state of New Mexico, on the 1st day of July, 1928, in said county and state, unlawfully and feloniously did steal 40 head of neat cattle, the property of Shults Bros., a copartnership composed of G. C. Shults and H. G. Shults.

The material facts testified to by the prosecution are: That about July 2, 1928, the Shults Bros., a copartnership composed of G. C. Shults and H. G. Shults, also known as Ted Shults, who ran cattle on their range, about 20 miles east of Estancia, N. M., and adjoining the ranch or pasture of defendant, discovered one of their pasture fences cut, and, upon investigation, missed about 40 head of their cattle. The tracks, where the cattle passed through the cut fence, indicated that the cattle had been driven by two persons on horseback. After several days' search, about 40 head of cattle, bearing the brand of the Shults Bros., were found in the possession of one Nicolas Maes near Ancho, Lincoln county, N. M. Maes produced a bill of sale for said cattle which purported to have been signed by “Ted Shults,” one of the brothers who owned said cattle, and identified the defendant as the person who on July 7, 1928, sold and delivered him the cattle, and who executed and gave him the bill of sale therefor, under the name of “Ted Shults.” J. M. Frame, a notary public at Ancho, identified the defendant as the person for whom he had prepared the bill of sale to Nicolas Maes, and who appeared before him on July 7, 1928, and executed and acknowledged the same under the name of “Ted Shults.” Several other witnesses also identified the defendant as the man seen with Nicolas Maes in Ancho on July 7, 1928, and also described a Chevrolet roadster which he was at the time driving, and which was by other witnesses shown to be defendant's car. That Ted Shults did not execute the bill of sale and the signature thereto was not his.

To meet and overcome this proof, defendant testified that he was not in Ancho on July 7, 1928, that he knew nothing whatever about the whole affair, and that he had not been near Ancho between July 1st and July 8th, 1928. In order to prove that he could not have been in Ancho July 7, 1928, he offered the testimony of many witnesses, including every person whom the record showed could possibly have any knowledge of his whereabouts during the period from July 1 to July 8, 1928, excepting one witness, Charles Lambert, who could not be procured, but the testimony which Charles Lambert would have given, if present, was set forth in a motion for continuance, and the prosecution, to avoid a continuance, admitted that Charles Lambert, if present, would testify to the facts stated in the affidavit, and the facts were read as evidence to the jury. The testimony of the defendant and his witnesses, if true, made it impossible for him to have been in Ancho, N. M., on July 7, 1928. We thus have an irreconcilable conflict between the testimony of the prosecution and defense.

[1] 1. Defendant has presented six grounds for reversal. The first point argued by appellant in his brief is that the trial court erred in admitting in evidence, over the objection of the defendant, the specimen of defendant's handwriting, which the defendant made in compliance with demand upon him by the district attorney and sheriff while defendant was in the custody of the latter. This ground of error is predicated upon the following facts:

During the testimony of Felipe Alderette, sheriff of Torrance county, the prosecuting attorney endeavored to identify two signatures by the defendant, one his signature of his own name, “G. E. Renner,” the other his signature of the name of “Ted Shults,” said signatures having been made by defendant while he was under arrest and in the custody of the sheriff of Torrance county, and also endeavored to lay the foundation for the introduction of the signatures in evidence. The witness had been asked: “Q. Did you see him write the names of any persons upon those occasions? A. Yes, sir.”

To the foregoing defendant's attorney objected as follows: “We object to this line of questioning, Your Honor; they are attempting to have the defendant furnish more evidence, and we take the position that admissions of any kind that are not voluntary are improper. He has been asked to do things and say things, and he has said them and done them and we contend it is inadmissible in a case of this kind unless warned in advance that these things you say and do will be used against you if you are brought to trial. We want to object before the jury gets the benefit of what they are trying to put in.”

There seems to have been no direct ruling on this objection, but, on account of a subsequent objection, it becomes material.

After the signatures had been fully identified, the district attorney offered the same in evidence, and defendant's attorney objected as follows: “We object on the same grounds that we made at the beginning of the testimony as being involuntarily made by the defendant while in the custody of the officer, at the officer's request or at the request of the District Attorney in the presence of the sheriff when the defendant was under duress and didn't write voluntarily because he thought he had to do it.”

This objecton was overruled, and the signatures were admitted in evidence, defendant excepting to the ruling.

By reading the two objections together, it will be seen that the objection made was that, the defendant being under arrest and in duress, the signatures were not admissible, unless voluntarily made. It is sufficient to state that the district attorney very carefully laid the foundation for the introduction of the two signatures by testimony to the effect that the defendant was cautioned that any statement he might make about the case could and would be used against him in court, if he were brought to trial; that there was no promise, coercion, or threat used by any one to cause the defendant to sign the two names; that the defendant did not object or protest to signing them, but did so voluntarily. Indeed, the defendant while on the stand testified in his own defense, admitting that he was not...