Mеlvin Martin was charged with the offense of receiving stolen copper of the value of more than $100 and with being a habitual criminal. A jury found him guilty of the offense, and the court sentenced him as a habitual criminal. He appeals.
*213 Martin assigns for error (1) the denial of his motiоn to strike all the testimony of a prosecution witness, Ned Nelson, who admitted larceny of the copper, (2) insufficiency of the еvidence to sustain the verdict, and (3) unconstitutionality of the habitual criminal statute under the federal prohibition against cruel and unusual рunishment.
The testimony of Ned Nelson is as follows. In January 1972 he and Martin salvaged and sold copper taken from the Glenville dump near Hаstings. The larceny occurred February 13 under these circumstances. The two men early in the morning of February 12 found 3 or 4 tons of copрer with large quantities of iron pipe and cinder block. The materials were located in a gutted building at the Navy Ammunition Depot and wеre the property of the Hadco Company. Martin suggested stealing the copper. They then “set some copper аway from the wall” and departed empty-handed because of daylight and factories nearby. About 10:45 p.m. they returned with axes, hammers, and chisels, in a 1963 Ford station wagon owned by Nelson. Until 4 a.m. frames, each of which weighed at least 600 pounds, were stripped of 1,100 pounds of copper. The men then transported the copper and unloaded it at the Glenville dump which they chose because no watchman was present.
Having arisen at 7 a.m. on February 14, Nelson and Martin in the station wagon proceeded to the dump. They lоaded only part of the copper because of rough roads and returned to Hastings where Nelson parked in a parking lot. Martin then drove his Buick automobile to the dump, and the men loaded the remainder of the copper. Upon their return to the рarking lot they transferred the copper in the Buick to the station wagon. The copper was covered with tarpaulin and transported to Alter’s Iron Works in Council Bluffs, Iowa. Nelson and Martin helped unload the cargo. Alter’s paid for the copper by issuing a сheck for $375.26 payable to *214 Nelson alone. The check was cashed at a Council Bluffs bank and the proceeds were divided evenly between Nelson and Martin. The method of payment resulted from Martin’s desire to conceal his connection with the transaction.
The testimony of Nelson exhibits ill will on his part against Martin, some self-contradiction, and some contradiction of testimony by a disinterested witness. Nelson denied a bargain for immunity. Although the county judge at a preliminary hearing had bound Nelson over to District Court, the county attorney prior to the trial of Martin did not prosecute Nelson in District Court.
The testimony of Martin is as follows: Prior to February 14 he and Nelson оn two occasions sold salvage to Alters. 'On February 14 at 7 a.m. Nelson visited the room of Martin. In the presence of Mike Broadbent, an overnight guest, Nelson asked Martin to drive him to the Glenville dump to salvage copper. The two men proceeded there in Mаrtin’s Buick, loaded the automobile, and drove to the parking lot. There they transferred the Buick load to the station wagon, and Martin hеlped to cover the copper with a blanket. His testimony to other events that day coincided with Nelson’s version. On February 28 Martin first lеarned that someone had stolen copper from Hadco.
Mary Nelson, former wife of Nelson, testified that shortly after Februаry 14 Martin had said: “A. He told me that him and Ned took copper, and took it to' Council Bluffs and sold it, and when he come back, he showed mе stubs on how much they got out of it, and then destroyed them. Q. Did he tell you why he destroyed them . . .? A. He wanted no connection to this where the stubs might be tаken to anybody and shown. . . . He didn’t want anybody to know anything about it. . . . He told me he got it from the Navy Depot. That’s what he told me that they had gotten it from there.”
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Martin argues that the denial of his motion to strike the testimony of Nelson was erroneous under this rule: “The fact an accоmplice has been guilty of willful false swearing on a material matter does not automatically discredit his testimony as a matter of law in all cases. Ordinarily, his credibility is a question for the jury under a proper cautionary instruction.” State v. Oglesby,
On insufficiency of the evidence Martin argues that a participant in the larceny cannot receive the property. See, II Anderson, Wharton’s Criminal Law and Procedure, § 576, p. 296 (1957); Clark & Marshall, Law of Crimes (Wingersky, 6th Rev. Ed., 1952), § 12.37, p. 856 at 858; LaFаve & Scott, Handbook on Criminal Law, § 93, p. 681 at 689 (1972).
The word “receiving” in the offense of receiving stolen property, essentially means аcquisition of control in the sense of physical dominion or of apparent legal power to dispose. State v. Alcorn,
Martin asserts unconstitutionality of the habitual criminal statutes on two grounds: The prosecutor possеsses a discretion whether to charge the facts referable to habitual criminality, State v. Reed,
Habitual criminal statutes have repeatedly withstood attacks on their constitutionality under the Fourteenth
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Amendment. See, Oyler v. Boles,
Any distinction or difference between duty and discretion of the prosecutor in this context is unimportant. Discretion on the part of state representatives is inherent at many stages in administration of criminal law. To adopt Martin’s argument would uproot the system, and that the Supreme Court of the United States has not countenanсed. Cases striking down the death penalty, such as Furman v. Georgia,
The statute does not provide for punishment of a status in contravention of the Fourteenth Amendment. See State v. Gonzales, 84 N. M. 275,
Other assignments of error are without merit.
Affirmed.