State v. Turnbow

• Decision Date: 30 July 1960
• Docket Number: No. 6594,6594
• Citation: 89 A.L.R.2d 461,354 P.2d 533,1960 NMSC 81,67 N.M. 241
• Parties: , 89 A.L.R.2d 461 STATE of New Mexico, Plaintiff-Appellee, v. James TURNBOW, Calvin Carter and Rita M. Turnbow, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 533

354 P.2d 533

67 N.M. 241, 89 A.L.R.2d 461

STATE of New Mexico, Plaintiff-Appellee, v. James TURNBOW, Calvin Carter and Rita M. Turnbow Defendants-Appellants.

No. 6594.

Supreme Court of New Mexico.

July 30, 1960.

Paul R. Dillard, John F. Loehr, George A. Graham, Jr., Farmington, for appellants.

Hilton A. Dickson, Jr., Atty. Gen., Philip R. Ashby, Boston E. Witt, Asst. Attys. Gen., for appellee.

McGHEE, Chief Justice.

Harry Smouse, the proprietor of a roadside liquor store in San Juan County, was shot and killed during an attempt to rob his store on January 25, 1958, at about 11:30 p.m.

James F. Turnbow and his wife, Rita M. Turnbow, together with Calvin L. Carter, were jointly indicted for the crime and were convicted of murder in the first degree. The jury recommended leniency for Mrs. Turnbow and Calvin Carter and they were sentenced to life imprisonment. No recommendation of leniency having been made for James Turnbow, he was sentenced to die in the state gas chamber. James and Rita Turnbow have appealed their convictions.

Both of the appellants object to the refusal of the trial court to grant their motions for separate trials, a severance having been requested on the grounds, among others, that the defenses of husband and wife were mutually antagonistic; that if extra-judicial statements made by either of them amounting to confessions were proved and placed in evidence, this would be prejudicial as to the other; and that their testimony would be incompetent against each other upon a joint trial but that if severance were granted each of them might call the other as a witness in defense.

The granting of a separate trial to defendants who are jointly indicted is, in New Mexico, a matter resting in the discretion of the trial court. State v. Lord, 1938, 42 N.M. 638, 84 P.2d 80; State v. Ochoa, 1937, 41 N.W. 589, 72 P.2d 609; State v. Watts, 1930, 35 N.M. 94, 290 P. 738; State v. Smith, 1925, 30 N.M. 364, 234 P. 467; State v. McDaniels, 1921, 27 N.M. 59, 196 P. 177; and State v. Starr, 1917, 24 N.M. 180, 173 P. 674, error dismissed, 254 U.S. 611, 41 S.Ct. 61, 65 L.Ed. 437.

In the Ochoa case, quoting from People v. Fisher, 1928, 249 N.Y. 419, 164 N.E. 336, which in turn quotes from People v. Snyder, 1927, 246 N.Y. 491, 159 N.E. 408, the scope of the determination to be made on a motion for severance by the trial court and on appeal is stated, as follows [41 N.M. 589, 72 P.2d 620]:

'The question always presented by such a motion (for severance) is whether a jury can properly weigh the testimony upon the various issues which may arise. 'The decision of the trial court rendered before the trial is dictated by reasonable anticipation based on the facts then disclosed. The decision of this court rendered upon a review of the trial itself rests upon determination of whether the prophesy has been realized."

In the Ochoa case we did not include the sentence immediately preceding the matter quoted from the Fisher case, which is as follows [249 N.Y. 419, 164 N.E. 338]:

'The test is whether a separate trial will assist or impede the proper administration of justice and secure to the accused the right of a fair trial.'

We believe the inclusion of this sentence is necessary to fully describe the ultimate functions of the trial court and of this court in passing on the denial of a motion for severance, although, of course, such purpose of inquiry has always been implicit in our rule.

Our statute disqualifying spouses as witnesses against each other in criminal trials is, as follows:

'Husband and wife--Competency as witnesses.--Hereafter the husband or wife of any defendant in any trial on a prosecution for crime before any court or officer authorized to hear or try said prosecution, shall be a competent witness to testify in favor, but not against such defendant; Provided that such husband or wife shall be a competent witness to testify against any such defendant where the prosecution is for any unlawful assault or violence forcibly committed by the defendant on the person of such witness; and Provided further, that such wife shall be a competent witness to testify against her husband when such husband is being prosecuted for the crime of abandonment of, or wilful failure to support his wife or family.' Sec. 41-12-20, N.M.S.A.1953 Comp. (Laws 1889, ch. 10, Sec. 1; Laws 1935, ch. 35, Sec. 1.)

Another of our statutes provides:

'Consent necessary.--In any proceeding, trial or examination in any court in the state of New Mexico, in any prosecution for incest, bigamy, polygamy, unlawful cohabitation, or adultery, the lawful husband or wife of the accused person, shall be a competent witness, and may be called, but shall not be required to testify in such proceeding, trial or examination, without the consent of such husband or wife so called as a witness.' Sec. 41-12-21, N.M.S.A.1953 Comp. (Laws 1909, ch. 98, Sec. 1).

As to the right of a defendant to testify in his own behalf, our rule provides:

'In the trial of all indictments, informations, complaints and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors in the courts of this state, the person so charged shall, at his own request but not otherwise, be a competent witness. His failure to testify shall create no presumption against him, but may be the subject of comment or argument. In trials in the district court such comment or argument shall be within the discretionary control of the court, and shall entitle the accused to an instruction that the jury shall indulge no presumption against the accused because of his failure to testify.' Trial Court Rule 45-504 (Sec. 41-12-19, N.M.S.A.1953 Comp.).

On the state's case in chief, two statements of Rita Turnbow were admitted in evidence as state's exhibits 34 and 35. These statements contained matter incriminating James Turnbow. Later, in the defendants' case, James Turnbow testified that he did not recall anything which had occurred after 7:00 p.m. on the night in question because he had suffered a 'black-out' of his memory. He accredited his 'black-out' to the fact that he had sustained a severe electrical shock in 1954 while he was working on a drilling rig in the oil field near Andrews, Texas. He further testified that as a result of this injury he had suffered acute headaches which he alleviated first with aspirin and headache powders and later with barbituates known as 'beanies' and 'yellow jackets.' In addition to the headaches he suffered dizzy spells and blackouts lasting various lengths of time. Turnbow's direct testimony was not criminatory as to his wife, but on cross-examination the state was allowed to impeach him by interrogating him about a statement made by him to police officers. In this interrogation, every question and answer in the statement was read to the witness and he was asked if he had made such statement. Again, on rebuttal, each statement was repeated and a police officer testified such question had been asked and such answer given. This statement contained matter which was criminatory as to Mrs. Turnbow.

When Mrs. Turnbow took the stand in her defense, she testified at length about the events of the day and evening in question. She acknowledged the statements she had given to officials and introduced in evidence as state's exhibits 34 and 35, and the effect of her testimony was to elaborate on answers contained in those statements and to present the defense of coercion by her husband. She was allowed to detail numberous instances during her marriage when her husband had committed acts of violence against her and committed or threatened to commit violence against others.

Objections to the foregoing evidence were made on behalf of both the husband and wife, which were overruled by the court on the basis, apparently, that the parties would be afforded sufficient protection against prejudicial error if the jury were specially instructed from time to time and also given general instructions not to consider the evidence of one spouse against the other.

On this appeal, it is the contention of the state that the instructions to the jury did serve to cure any possible error committed in allowing the spouses to give testimony against each other.

It is not contended that the case comes under any of the statutory exceptions allowing testimony by one spouse against the other, and such contention would obviously not be permissible in this case. Nor is there any legislative or other public policy which would bring the testimony under the rule announced in Wyatt v. United States, 1960, 80 S.Ct. 901, 4 L.Ed.2d 931.

It cannot be questioned that if a severance had been granted to these parties, each of them would have been able to exclude the testimony of his spouse against him, but could have called such spouse as a witness for his defense. United States v. Meyers, 1908, 14 N.M. 522, 99 P. 336; Hawkins v. United States, 1958, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125.

By compelling the husband and wife to be tried jointly, each of them was denied this right; and, instead, they were forced to rely on the effect of instructions to overcome the prejudicial effect of the criminatory testimony of their spouse, or else be denied the right to testify in their own behalf.

We are of the opinion the lower court's refusal to grant James and Rita Turnbow separate trials was an abuse of discretion, as that course was obviously the only way in which Sec. 41-12-20, N.M.S.A.1953 Comp., and Trial Court Rule 45-504 (Sec. 41-12-19, N.M.S.A.1953 Comp.) could be given effect.

The state has called our attention to two Kentucky cases: Allen v. Commonwealth, 1909, 134 Ky. 110, 119 S.W. 795, 20 Ann.Cas. 884; and Martin v. Commonwealth, 1937, 269 Ky. 688, 108 S.W.2d 665. These cases stand for the proposition that a husband and wife who are jointly tried may testify the themselves, but when they are tried separately, one cannot be a witness for the other....