State v. Till, No. 9159

Docket NºNo. 9159
Citation484 P.2d 1265, 82 N.M. 555, 1971 NMSC 56
Case DateMay 10, 1971
CourtSupreme Court of New Mexico

Page 1265

484 P.2d 1265
82 N.M. 555
STATE of New Mexico, Plaintiff-Appellee,
v.
Tommie Clayton TILL, Defendant-Appellant.
No. 9159.
Supreme Court of New Mexico.
May 10, 1971.

[82 N.M. 556]

Page 1266

McAtee, Marchiondo & Michael, O. L. Puccini, Jr., Albuquerque, for defendant-appellant.

David L. Norvell, Atty. Gen., Jay F. Rosenthal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.

OPINION

TACKETT, Justice.

The District Court of Eddy County, New Mexico, denied a motion for post-conviction relief without a hearing. Defendant appeals.

The defendant contends that the trial court erred in denying his motion for post-conviction relief, based on (1) a 'shotgun' instruction, (2) inadequate counsel (no objection was raised in the original trial of this case, cited as State v. Till, 78 N.M. 255, 430 P.2d 752 (1967)), and (3) newly discovered evidence. All three contentions are without merit.

Numbers (1) and (2) are controlled by the holding in State v. Travis, 79 N.M. 307, 442 P.2d 797 (Ct.App.1968), and State v. Salazar, 81 N.M. 512, 469 P.2d 157 (Ct.App.1970). With respect to number (3), the requirements necessary to warrant a new trial on newly discovered evidence are set forth in State v. Ramirez, 79 N.M. 475, 444 P.2d 986 (1968):

'* * * (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. * * *'

See cases cited therein.

Under the above requirements, defendant failed to set forth sufficient facts in his petition, or by affidavit, to warrant consideration by the trial court, as the contended newly discovered evidence was not disclosed, nor is it revealed by the record in this court.

Based on such nondisclosure, the petition must fail.

The decision of the trial court is affirmed. It is so ordered.

COMPTON, C.J., and McMANUS, J., concur.

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2 practice notes
  • 1996 -NMSC- 78, Sims v. Sims, No. 21818
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 6, 1996
    ...of state and federal leased land. We stated that we did not "find error concerning the partition of leased lands." Id. at 555, 484 P.2d at 1265. In Sullivan, any proposal to partition leased lands was not deemed to be a rule of law, but merely a recommendation that could be made t......
  • Sullivan v. Sullivan, No. 9158
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 10, 1971
    ...by the trial court in its acceptance of the commissioners' report which categorized the lands involved by descriptive names rather than by [82 NM 555] Page 1265 metes and bounds in accordance with § 22--13--6, supra. However, the applicable metes and bounds descriptions were contained in th......
2 cases
  • 1996 -NMSC- 78, Sims v. Sims, No. 21818
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 6, 1996
    ...of state and federal leased land. We stated that we did not "find error concerning the partition of leased lands." Id. at 555, 484 P.2d at 1265. In Sullivan, any proposal to partition leased lands was not deemed to be a rule of law, but merely a recommendation that could be made t......
  • Sullivan v. Sullivan, No. 9158
    • United States
    • New Mexico Supreme Court of New Mexico
    • May 10, 1971
    ...by the trial court in its acceptance of the commissioners' report which categorized the lands involved by descriptive names rather than by [82 NM 555] Page 1265 metes and bounds in accordance with § 22--13--6, supra. However, the applicable metes and bounds descriptions were contained in th......

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