State v. Sierra
Decision Date | 19 July 1977 |
Docket Number | No. 2872,2872 |
Citation | 90 N.M. 680,568 P.2d 206,1977 NMCA 75 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Mike SIERRA, Defendant-Appellant. |
Court | Court of Appeals of New Mexico |
Convicted of making or permitting a false public voucher contrary to § 40A-23-3, N.M.S.A.1953 defendant appeals asserting four points for reversal, namely: (1) unconstitutionality of the statute; (2) failure to grant a change of venue; (3) failure to give a requested instruction; and, (4) insufficiency of the evidence. Issues raised in the docketing statement and not argued on appeal are deemed abandoned. State v. Vogenthaler, 89 N.M. 150, 548 P.2d 112 (Ct.App.1976). We affirm.
Section 40A-23-3, supra, states:
Defendant contends that the statute is unconstitutionally "vague, ambiguous and indefinite." He asserts that by the use of the word "material" a man of common intelligence would find it impossible to determine what statements were materially false. We disagree.
As we stated in State v. Najera, 89 N.M. 522, 554 P.2d 983 (Ct.App.1976):
We are guided by two rules.
First, words in the statute are given their ordinary meaning unless a different intent is clearly established by the legislature. State v. Tapia, 89 N.M. 221, 549 P.2d 636 (Ct.App.1976). We find no different intent expressed.
What is the ordinary meaning of "material?" Webster's Third New International Dictionary (Unabridged Ed.1966) states:
The Random House Dictionary of the English Language (Unabridged Ed.1969) states:
". . . of substantial import; of much consequence; important: . . . pertinent or essential (usually fol. by to): . . . Law. likely to influence the determination of a case: material evidence. . . ."
The meaning of "material" is not vague, ambiguous or indefinite. It does not import anything less than a matter which is so substantial and important as to influence a party.
Second, we consider the statute as a whole. State v. Orzen, 83 N.M. 458, 493 P.2d 768 (Ct.App.1972). Given the ordinary meaning of "material" we find that the statute gives notice of the following prohibitions: (1) knowingly or intentionally or willfully; (2) making or causing to be made or permitting to be made; (3) a false statement which would affect a decision to expend public money; (4) by an invoice to support a public voucher; (5) intending that the invoice would be relied upon for the expenditure of public money.
Accordingly, the statute is not vague, ambiguous or indefinite. It gives fair warning of the prohibited acts and declares those acts to be a crime.
Defendant filed a motion for a change of venue based upon an article which appeared in the Albuquerque Journal and his own affidavit. The state offered no evidence. After a hearing the trial court stated that it would call forty jurors rather than the usual twenty-four and if it appeared they would run out of jurors, who had read the article and formed an opinion, then it would grant a change of venue. The trial court then stated it was ". . . going to hold in abeyance ruling on this until I have satisfied myself one way or another that he can get a fair trial or that he can't. . . ."
Subsequently and after voir dire of the jury the trial court made the following findings. Each finding is substantially supported by the record:
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