Doyle W. BURTON, Plaintiff-Appellant, v. JENNINGS BROTHERS, d/b/a D. J. Cattle Company, and the Mountain States Mutual Casualty Company, Defendants-Appellees.
No. 1778.
Court of Appeals of New Mexico.
June 4, 1975.
Certiorari Denied July 2, 1975.
95 N.M. 537 | 537 P.2d 703
The assistant district attorney made a closing argument for the State. He said in part:
I wouldn‘t come up here, I can assure you, ladies and gentlemen, and take that stand and fabricate a story like that because that would be perjury. And so if you accept what I said, what he told me, it certainly contradicts what he told the Court when he was on the stand as to how he got that car.
The assistant district attorney argued his own credibility of the jury. This denied the defendant a fair trial.
Under the above circumstances, it is reversible error for a district attorney to be both witness and prosecutor. People v. Spencer, 512 P.2d 260 (Colo. 1973); State v. Hayes, 473 S.W.2d 688 (Mo. 1971), 53 A.L.R.3d 93 (1971); Frank v. State, 150 Neb. 745, 35 N.W.2d 816 (1949); Annot., Prosecuting Attorney as a Witness in Criminal Case, 54 A.L.R.3d 100, 132-36 (1973).
When a district attorney finds it necessary to testify on behalf of the prosecution, he should withdraw and leave the trial of the case to other counsel. State v. Hayes, supra; Annot., 54 A.L.R.3d, supra, at 118-25.
B. Denial of change of venue not subject to review.
Defendant filed a motion for change of venue. A hearing was held and the motion was denied because the court believed the defendant could obtain a fair trial in Quay County.
Under
The defendant made no request for findings and did not submit any requested findings. The absence of findings is waived and is not subject to review. State v. Mosier, 83 N.M. 213, 490 P.2d 471 (Ct. App. 1971); State v. Fernandez, 56 N.M. 689, 248 P.2d 679 (1952).
Reversed. Defendant is granted a new trial.
It is so ordered.
WOOD, C. J., and LOPEZ, J., concur.
Harry Relkin, Louis G. Stewart, Jr., Albuquerque, for plaintiff-appellant.
Dan B. Buzzard, Clovis, for defendants-appellees.
OPINION
WOOD, Chief Judge.
Whether the Judgment Disposed of All Rights of the Parties
Defendants assert the judgment entered in June, 1973 was a final judgment disposing of all rights of the parties. This contention is based on
Defendants contend the judgment entered in June, 1973 was a lump sum judgment and such a judgment may not be reopened under Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964). There was no lump sum judgment in this case and the reliance on Durham is misplaced.
In Durham, supra, the parties, by stipulation, agreed upon a lump sum settlement. The trial court, after a hearing, approved the settlement and entered a judgment based on the stipulation of the parties. Thereafter a satisfaction of judgment was filed. Two members of the New Mexico Supreme Court held that regardless of
Durham, supra, is not applicable. The lump sum judgment in Durham was for the amount of a settlement agreed upon by the parties and approved by the
Plaintiff‘s motion pursuant to
Whether the Satisfaction of Judgment Barred Plaintiff‘s Right to Reopen
Defendants paid the judgment of June, 1973. Plaintiff‘s “Satisfaction of Judgment” stated that the judgment had been satisfied. What had been satisfied—compensation through August 24, 1973, certain medical expenses and fees for plaintiff‘s attorney and expert witness. Defendants assert this satisfaction bars a motion to reopen under
As previously stated,
Plaintiff‘s motion alleges that he has continued to be disabled since cessation of compensation on August 24, 1973, that his disability has increased, and that he is unable to return to work. These claims are directed to a time period subsequent to the time period covered by the judgment. The judgment refers to specific time periods; plaintiff declared the judgment for those time periods to be satisfied. The satisfaction of judgment cannot be considered as waiving a right to proceed under
The issue raised by plaintiff‘s motion was “a change in the workman‘s condition subsequent to the original award.” Goolsby v. Pucci Distributing Company, 80 N.M. 59, 451 P.2d 308 (Ct. App. 1969). The fact that plaintiff declared the original award to have been satisfied did not bar that issue.
Defendants’ brief suggests that the release, executed by plaintiff subsequent to the judgment, bars plaintiff‘s motion under
The order of the trial court denying plaintiff‘s motion as a matter of law is reversed. The cause is remanded with instructions to grant plaintiff an evidentiary hearing on his motion. Questions concerning the release may be litigated at this evidentiary hearing.
It is so ordered.
LOPEZ, J., concurs.
SUTIN, J., dissenting.
SUTIN, Judge (dissenting).
I dissent.
When is a judgment in a workmen‘s compensation case a final judgment? It is final when it contains all of the elements of finality as do other civil judgments. Durham v. Gulf Interstate Engineering Company, 74 N.M. 277, 393 P.2d 15 (1964).
When a judgment is payable in installments for disability for a period of weeks, the judgment is final when the full statutory period has elapsed. Durham, supra. Churchill v. City of Albuquerque, 66 N.M. 325, 347 P.2d 752 (1959); Segura v. Jack Adams General Contractor, 64 N.M. 413,
In the instant case, the judgment awarded plaintiff a total of $2,432.92 in compensating costs and expenses. It was not payable in installments. It has all the elements of finality. The judgment was entered June 12, 1974. The plaintiff entered a satisfaction of judgment. This clearly enunciates that the judgment was final. No appeal was taken from the judgment. The trial court lacked jurisdiction to proceed further in the case. Sections
In addition to the satisfaction of judgment, plaintiff executed a release. The majority opinion says: “Questions concerning the release may be litigated at this evidentiary hearing.” If this issue is heard first, and the release is also sustained, no further evidentiary hearing on the motion will be required.