State v. Smith
| Decision Date | 05 July 1966 |
| Docket Number | No. 7968,7968 |
| Citation | 416 P.2d 146,76 N.M. 477,1966 NMSC 128 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Marlin G. SMITH, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant Marlin G. Smith appeals from a conviction of first degree murder in the shooting death of Roosevelt Pope.
He first urges that the trial court erred in proceeding to impanel a jury without having at least 36 prospective jurors, representing combined regular and emergency petit jury panels, physically present from which to select twelve jurors. He also urges error under § 41--10--2, N.M.S.A., 1953 Comp., in that no list was provided him of special jurors called after the original panel had been exhausted with only nine jurors yet accepted by both parties; he admits, however, that no demand was ever made for such list as required by the statute.
As to the first half of this argument, defendant does not deny that there were originally at least 36 prospective jurors on the panel as required by § 19--1--25, N.M.S.A., 1953 Comp. At time of trial 36 members of the panel were, after questioning, found qualified for jury duty. Of these, seven were excused for good cause, and selection of the jury began. Defendant objects to this procedure, contending, in effect, that if jurors are excused for good cause, the trial must be postponed until such jurors are replaced. However, neither the statute nor any authority cited by defendant so requires. The record gives no indication, nor does defendant contend, that any member of the jury finally selected was biased or prejudiced or that the defendant was not accorded a fair and impartial trial. Defendant had no vested right to have any particular juror sit on the trial of his cause unless already accepted and sworn; it is enough that it appear that his cause was tried by an impartial jury, State v. Martinez, 1948, 52 N.M. 343, 198 P.2d 256; State v. Leatherwood, 1920, 26 N.M. 506, 194 P. 600. Generally, it is not the practice to fill the places of jurors who have been excused after summoning and before impaneling, so long as there remain sufficient jurors from which to complete a jury, Clough v. State, 1878, 7 Neb. 320; Martin v. State, 1847, 16 Ohio 364; L.R.A.1916A 822, 823.
After the existing panel had been exhausted with only nine jurors selected, the court, pursuant to § 19--1--23, N.M.S.A., 1953 Comp., drew the names of 20 additional persons; sixteen appeared, were questioned and found to be qualified. Selection of the jury was then completed. Defendant contends error because no list or information concerning the additional names was ever furnished him. Section 41--10--2, N.M.S.A., 1953 Comp., provides:
'In all capital cases a list of the jury shall be delivered to the party demanding the same twenty-four (24) hours before the trial, and in all other cases as provided by law.'
Defendant admits that he made no demand for the list, and therefore his reliance on Territory v. Rivera, 1879, 1 N.M. 640, is to no avail. However, in any event, it was certainly never contemplated that the list of names of the special panel, drawn under § 19--1--23, supra, must be served twenty-four hours before the trial, because, if such were required, there would of necessity be a 24-hour delay in every case where the regular panel became exhausted. To sustain defendant's contention would be to thwart the intention of the statute, which was enacted to expedite the trial of cases.
Defendant next asserts that the trial court erred in refusing to grant his motion for a bill of particulars. The short form information read as follows:
'Joseph O. Walton, Assistant District Attorney in and for the County of Lea accuses Marlin G. Smith of the crime of murder contrary to Section 40A--2--1, Criminal Code of 1963, and charges that the defendant did murder Roosevelt Pope by shooting him with a gun and that this did happen on or about the 30th day of June, 1964, in Lea County, New Mexico.'
Of course, if the information fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution, the motion should have been granted, § 41--6--8(1), N.M.S.A., 1953 Comp. However, we cannot agree that the defendant did not have sufficient information to enable him to prepare his defense. He first claims that he was entitled to be advised under which of the subsections of § 40A--2--1(A), N.M.S.A., 1953 Comp., he was charged. However, the manner and means charged, 'by shooting him with a gun,' gave defendant ample information of the charge against him. State v. Roy, 1936, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1. There were sufficient particulars of the offense alleged to enable the defendant to prepare a defense, State v. Graves, 1963, 73 N.M. 79, 385 P.2d 635, and he is not entitled to more.
Defendant also maintained that the state should allege whether it intended to prove express or implied malice, so he could determine whether the charge was first or second degree murder. However, the motion plainly indicates that he knew he was being charged under § 40A--2--1(A), supra, and thus he must have known that the charge was first degree murder. We cannot see how he could have been prejudiced by a failure to allege the specific type of malice.
Finally, the defendant's motion sought to require the state to allege the approximate time of day of the offense. In this connection, reliance is placed upon State v. Mosley, 1965, 75 N.M. 348, 404 P.2d 304. However, in Mosley, the district attorney had furnished a bill of particulars showing the approximate time of the death of the decedent. We stated that the defendant was entitled to know 'the approximate time of day.' This language must be considered in connection with the facts of the Mosley case, and does not necessarily mean that a defendant in all cases is entitled to be advised by bill of particulars the approximate time of the alleged offense. Here, the defendant knew that he could only be required to account for the time between...
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