STATE of New Mexico, Plaintiff-Appellee, v. Carl BARNETT, Defendant-Appellant.
No. 973.
Court of Appeals of New Mexico.
June 27, 1973.
512 P.2d 977
As his final contention on appeal, defendant asserts that even if the two assignments of error were not sufficient, in and of themselves, to constitute grounds for reversal that the cumulative effect of both errors warrants a reversal. We need not reach this argument since we have concluded that both the admission of the testimony and the giving of the first and second degree murder instructions were proper. We find no reversible error in this case.
Affirmed.
It is so ordered.
HENDLEY and SUTIN, JJ., concur.
Leonard G. Espinosa, Donald B. Moses, Nordhaus, Moses & Dunn, Albuquerque, for defendant-appellant.
David L. Norvell, Atty. Gen., Winston Roberts-Hohl, Ronald Van Amberg, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
This is the second time this case has been before this court for consideration. The first opinion, State v. Barnett, 84 N.M. 452, 504 P.2d 1088 (Ct.App.1972), was reversed by the Supreme Court in State v. Barnett, No. 9610, decided May 25, 1973, 512 P.2d 61,
Defendant was convicted of rape (
We affirm.
At approximately midnight on the night of June 30-July 1, 1971, the prosecutrix was returning to her apartment. She had just pulled into a parking space when another car pulled up behind her. A man, not the defendant, got out of the second car and approached the prosecutrix’ car. As she was getting out of her car the man displayed a knife and told her to get back into her car. The man got into the driver‘s seat of her car and proceeded to drive away. He forced the prosecutrix to the floor of the passenger‘s side of the car. The car in which the man had arrived followed the prosecutrix’ car. They proceeded to a deserted area southwest of Albuquerque. Upon arriving at what the man apparently considered a suitable location he left the prosecutrix in her car while he went to confer with his companions. Upon his return the prosecutrix was told to get into the backseat of her car and undress. She was then told to leave the car and lie on a blanket spread next to her car. The exact details of what followed need not concern us. Suffice it to say that each of the four men who had originally been in
Defendant‘s first argument is that although the sodomy statute,
This argument might have some force if defendant had been charged with sodomy as a principal. He was, however, charged as an accessory. At trial evidence was introduced that acts of both oral and anal sodomy were committed by defendant‘s companions. This is sufficient proof to come within the terms of the bill of particulars.
Defendant‘s second point is that the trial court erred by failing to require the state to specify precisely which of several acts of sodomy defendant was accused of having been accessory to. Defendant‘s argument is that by failing to force the state to specify which act defendant was an accessory to the court deprived him of the opportunity to be “. . . informed of the charges against him, hindered the preparation of his defense and subjected him to possible double jeopardy.”
The first two claims are mere allegations: they are not supported by any type of showing that defendant did not know what the charges were against which he had to defend or that he was in any way prevented from preparing his defense. The indictment and bill of particulars which are a part of the record identify the date, approximate time and nature of the crimes alleged. The prosecutrix is identified, as are the defendant‘s associates, with whom he was alleged to have committed the crimes. Further, shortly after his arrest the defendant gave a statement to the police in which he substantially admitted participation in the crimes of which he was later convicted. On these facts we cannot say that defendant was deprived of his right to be informed of the charges against him or that the preparation of his defense was hampered.
Defendant‘s final claim under this point is that because of the trial court‘s refusal to require that the state specify which act of sodomy the defendant was accessory to that he could be subjected to double jeopardy. The basis of this argument is that if he were indicted or informed against as accessory to a particular act of sodomy based on the same incident he could not point to his present conviction as precluding his trial on any particular act of sodomy. It is significant that defendant‘s argument is based on a hypothetical situation. He has not been indicted or informed against for another crime growing out of the same set of facts. Should defendant‘s hypothetical situation become
Defendant next argues that his conviction as an accessory to sodomy was not supported by substantial evidence. This argument is based on defendant‘s theory that the state must prove that he in some way aided or abetted a particular act of sodomy. We reject this theory. It is not necessary that the state prove that defendant aided and abetted a particular act of sodomy. Our view is well stated by the court in United States v. Milby, 400 F.2d 702 (6th Cir. 1968): “. . . Presence at the scene and active participation in the criminal conduct being undertaken, in such a way as to encourage the commission of the charged offenses, is enough to constitute aiding and abetting; by such conduct, one assists others in the criminal enterprise. . . .” There is ample evidence in this record to support defendant‘s conviction as an accessory to sodomy.
Defendant‘s next point is that his confession was improperly admitted into evidence because it was obtained subsequent to an illegal arrest. Defendant‘s basis for arguing that the arrest was illegal is that the arresting officer did not have possession of the warrant for defendant‘s arrest when the arrest took place. It is undisputed that there was a valid warrant outstanding at the time of defendant‘s arrest. This court has recently held that: “. . . physical possession of the warrant is not essential to a lawful arrest when the validity of the arrest warrant is not involved.” State v. Grijalva, 85 N.M. 127, 509 P.2d 894 (Ct.App.1973). Having found that defendant‘s arrest was not in fact illegal, there is no basis for suppressing his confession.
Defendant‘s next point is that the court erred by failing to give defendant‘s requested instruction Nos. 1, 7a and 8, and that, as a result, the jury was not correctly instructed on the elements of the crime of rape. The nub of defendant‘s contention is contained in the following sentence: “It is submitted that to sustain Appellant‘s conviction of rape, the victim‘s resistance must have been overcome by force applied by Appellant and not by some third person. . . .” Defendant relies on the fact that there is no evidence that he personally threatened or used force on the prosecutrix. We reject defendant‘s contention. The prosecutrix’ resistance had been overcome by “. . . fear induced by threats. . . .” State v. White, 77 N.M. 488, 424 P.2d 402 (1967). The fact that these threats were made by someone other than the defendant is immaterial.
Defendant‘s final point is that the trial court erred by refusing to quash the jury array from which the jury which tried him was selected. The basis for this contention is that the array did not include members of the then recently enfranchised class of persons between the ages of 18 and 21 years. Defendant himself was in this age group at the time of his trial. Defendant alleges that failure to include members of this group in the jury array deprived him of due process. Defendant points to
Affirmed.
It is so ordered.
WOOD, C. J., concurs.
SUTIN, J., concurring in part and dissenting in part.
SUTIN, Judge (concurring in part and dissenting in part).
I concur in the conviction for rape. I dissent on the sodomy charge because