State v. White
| Decision Date | 21 March 1956 |
| Docket Number | No. 5986,5986 |
| Citation | 1956 NMSC 38,61 N.M. 109,295 P.2d 1019 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Allen WHITE, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Harry L. Bigbee, Joseph M. Montoya, Matias A. Zamora, Santa Fe, for appellant.
Richard H. Robinson, Atty. Gen., Fred M. Standley, Asst. Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., for appellee.
The defendant appeals from a judgment and sentence of the District Court of Bernalillo County, pursuant to a verdict of a jury finding him guilty of murder in the second degree.
The factual details are of very little consequence insofar as this appeal is concerned, and let it suffice to say that the defendant was convicted of killing his wife by gunshot wound on the 26th of January, 1953, in Albuquerque; that he was thereafter tried and convicted in Bernalillo County of murder in the second degree, which cause was reversed by this Court, resulting in a mandate upon which the present cause was tried.
The defendant on his second appeal to this Court raises several objections to what occurred at the time of trial and in the proceedings before the Court, which can basically be considered under six points.
The first two of these relate to matters which were raised prior to the actual trial, one being a motion for a change of venue, and the second being a motion to quash the Information as supplemented by the Bill of Particulars.
To take these points in the order just mentioned, the defendant filed a motion seeking a change of venue, bolstered by his own affidavit, to which a response was filed by the State, having affidavits attached thereto. The Trial Judge heard testimony on the venue question and denied the motion, apparently feeling that the mere attaching to the motion of the defendant's affidavit that he did not feel a fair trial could be obtained did not take the matter from the discretion of the Court.
Basically, the testimony presented on the motion for change of venue had to do with the widespread newspaper publicity, and we believe, along with the Trial Judge, that the showing made did not constitute a sufficient showing of a well-grounded fear that the defendant could not obtain a fair trial in Bernalillo County. Certainly, there was no palpable abuse of discretion on the part of the Trial Court in denying the motion. See State v. Alaniz, 55 N.M. 312, 232 P.2d 982; State v. Fernandez, 56 N.M. 689, 248 P.2d 679; and State v. Chavez, 58 N.M. 802, 277 P.2d 302.
Further, with respect to this matter, it might be pointed out that the obtaining of a jury proved relatively easy for a murder case, and it certainly does not appear that the prospective jurors had any prejudice against the defendant and that, actually, basically, the only reason that many of them were subsequently excused for cause was their lack of understanding of the question as to why this defendant should be retried, having been convicted once.
On the morning of the trial, there was filed by the defendant a Motion for a Bill of Particulars to which the District Attorney filed a response and thereafter the defendant moved to quash the Information as supplemented by the Bill of Particulars, on the technical ground that the District Attorney in his Bill of Particulars stated that 'the means' of the death of the deceased was 'by reason of gunshot wound', whereas the defendant wished to know what the 'legal means' was.
It should be pointed out that the defendant did not seek an additional Bill of Particulars and did not, insofar as the record discloses, point out to the Court the ground of his technical objection. It must be borne in mind that this was the second trial of this case; the defendant had available a transcript of all of the evidence. There is some doubt as to whether the defendant was actually entitled to a Bill of Particulars, and certainly the granting of the defendant's contention in this instance would, in effect, take the pleading of criminal cases back to the days of the old type Information and Indictment, and would almost completely wipe out the advantages gained by the modern type of pleading.
With reference to this particular point raised by the defendant, it is believed that it is completely answered in State v. Roy, 40 N.M. 397, 60 P.2d 646, 657, 110 A.L.R. 1, wherein this Court stated
So much for the points raised by the defendant prior to trial; we feel that they are without merit.
The defendant claims error by reason of two different statements made by the District Attorney who prosecuted the case. The first occurred in the District Attorney's opening statement, and the other occurred in closing argument wherein the District Attorney commented on the defendant not taking the stand.
With reference to the question raised as to the comment in the opening statement, which was to the effect that the defendant entered into a 'purported' marriage with the deceased on the 6th of January, 1947, at which time he was legally married to another woman, objection was made to this by counsel for the defendant in which a mistrial was asked by reason of the injection of a false issue, or in the alternative, that the jury be instructed to disregard the statements. The Trial Judge instructed the Jury in accordance with this request, that the previous marital condition of the defendant was not an issue in the case and the motion for mistrial was denied.
It should also be mentioned that the District Attorney in his closing argument again used the phrase 'purported wife' but no objection was raised, and apparently the matter was not brought to the attention of the Trial Court and has only been raised now for the first time. A careful examination of the record in this case discloses that the trial court exercised extreme care in protecting the rights of this defendant, and we fail to be convinced that use of the above mentioned language by the District Attorney had any effect on the jury's verdict, particularly where the Trial Judge acted so promptly to rectify any possible damage that might have been done, in the instance which was called to the Trial Judge's attention. The defendant's motion was in the alternative, that is, either for a mistrial or the admonition to the jury. The Court adopted the latter alternative, as we believe it should have.
It would appear that the action of the Trial Court in this case is analogous to that which occurred in State v. Garcia, 57 N.M. 665, 262 P.2d 233,...
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