*1 40A-17-5, Negligent Arson and Arson, by Laws was enacted ch. §
1. The title of the act is: “AN ACT crimes;
lating to defining the crimes ar-
son and repealed It negligent arson.”
previous section on arson under the Revised 17- Laws ch.
Criminal Code. is a
2. The new section enacted
part the Revised Criminal Code. general stat- question is: Would
ute, property”, stand- “Damaging insured alone, matter as the
ing the same include it, act, “Arson”,
special conflict with together and read can both statutes be
harmonized?
Both the same statutes do not condemn ap- property” “Damaging
offense. insured accused,
plies only “with intent where the company”, dam-
to defraud the insurance ap-
ages property. “arson” statute
plies only seeks “to col- the accused where stat-
lect such loss.” Both insurance for together
utes can harmonized. be read
STATE of WARNER, Defendant-
Homer Lee Appellant.
No. 1297. Appeals of Mexico. New
Court
April *2 Roswell, Strand, dismissed. against for defend- him should be H. Robert disagree. ant-appellant. We Gen., an Norvell, Atty. Jay complaint F. A and arrest war- Ro- criminal David L. Fe, senthal, Atty. Gen., for The Santa rant were issued December 1972. Sp. Asst. custody was in record indicates defendant plaintiff-appellee. ap- first from the time his arrest. His OPINION pearance before a was Decem- required to which Rights ber 1972. are WOOD, Judge. Chief explained first to a defendant at this be an appeals conviction his Defendant appearance right the the assist- include to burglary. aggravated attempt to commit counsel, possible right to ance and the 40A-16-4, N.M.S. and 40A-28-1 Sections representation attorney ex- by an at State 6). issues con- Repl.Vol. The (2d A.1953 41-23-19, pense. Section N.M.S.A.1953 transcript prelim- of the (1) written cern: Repl.Vol. (2d Supp.1973). delay holding in inary (2) examination and concerning An unexecuted de- affidavit preliminary examination. the ability employ to counsel bears fendant’s 19, 1972, that, the notation on December transcript preliminary ex- the Written sign defendant refused to the affidavit amination. “give an refused information for attor- to ex Testimony preliminary at the ney.” is also a notation to the ef- There The tape. dis on amination was recorded examination had preliminary fect that the tape defend attorney this to trict tendered “so been scheduled for December 27 as Defendant use at the trial. ant his liminary pending.” con He tape serts the was insufficient. in was filed the A criminal information tran to a “written” tends he entitled was aAt February district court on 1973. script proceedings preliminary the of the at hearing court on Febru- before the district a tran request for examination. His such 26, 1973, ary admitted that De script by trial court. was denied appearance before the at time his deprived him of claims denial fendant accept unwilling he was to protection. equal to his constitutional represent attorney an to to de is answered adverse contention explained he did not him. Defendant that Floyd, fendant in ex rel. Moreno v. appointed attorney an he was want unless Decem decided 699, 516 P.2d attorney. The court allowed to select ber 1973. disapproved procedure. Defendant this exam- Delay holding preliminary in represent but stated he wished to himself ination. accept “act as appointed would counsel to 41-23-20(d), (2d N.M.S.A.1953 my assistant.” The then deferred court Repl.Vol. 6, Supp.1973) states: could proceedings further until defendant twenty
defendant is in
any
following
be held
“Time:
event not later than ten [10]
>>
within a
'
the initial
A
days if
preliminary
custody
reasonable time
he
appearance
and no later than
is not in
hearing
if the
but in
shall
inary
An
was
be advised
“legal advisor”
fendant stated he
The next
attorney
May 30,
examination.
by
was
counsel as to
desired to have a
appointed
appearance
At that
Defendant
his legal rights.
of defendant
hearing,
1973.
defendant’s
also ex-
prelim-
de-
appoint-
pressed
counsel
preliminary
Defendant asserts his
ex-
the desire to have
the time
ordered
represent
amination was not held within
him. The court
ed
provided by
held that
rule. Because of
examination be
above
violation,
“legal advisor”
day
appointed
the asserted rule
he contends
as defendant’s counsel.
conviction should be reversed and the
act
Delay
holding
shows
foregoing
compliance
examination.
was scheduled
examination
inference
41-23-20(d), supra.
“gov-
Procedure
Rules of Criminal
held at the
that the examination
district courts
procedure
ern the
of defendant’s
time because
scheduled
proceedings.
in all criminal
New Mexico
magis-
supply
fusal
they may
applicable, Rules
far as
be
In so
* * *
*3
*
* * *
*
for a
was needed
trate.
41-23-20
20,
[*
*
* *
defendant
as to whether
determination
proceedings
also
to all
apply
]
appointed counsel.
to court
entitled
persons
to those
magistrate
relating
magistrate
not within
accused of offenses
re
counsel was
question of
41-23-1,
jurisdiction.”
court trial
Section
1973,
is
28,
there
February
but
solved on
6, 1973Supp.).
Repl.Vol.
(2d
N.M.S.A.1953
delay
Decem
from
explaining nothing
[Emphasis added].
pre A
1972, February
ber
by
prosecution may
“A
commenced
May
be
was held
liminary examination
complaint,
an infor-
filing
(1)
(2)
of
a
nothing explaining
but there
mation,
ad-
an indictment.” Section
legal
of a
(3)
delay from the
30, 41-23-5,
supra.
May
until
visor on
the basis that the
had been violated
fendant’s
warrant the same
December
On
court? The
is
answer
“No.” United
1972,
initially appeared
be-
130,
Green,
F.Supp.
States v.
305
(D.
requested
fore the
and was
to C.N.Y.1969). The Rules of Criminal Pro
sign a document called
Regard-
“Affidavit
designed
cedure were
protect
to
the ac
ing Ability
Lawyer”.
magis-
To Hire
The
Armijo,
cused.
72
State v.
N.M.
trate wrote on this
to
document:
On the sought trial court complete to arraignment. the Defendant is did record clear defendant stated that if he were arraigned at this not waive his a exami- to
223 Assenza, F.Supp. United States pled guilty nation before he not ar- on (U.S.D.C.Fla.1972). raignment. Gallegos, 46 N.M. State v. (1942). 129P.2d 634 im- It is a sad adventure the fair and partial to condone justice administration of Cox, 884, 890,
In Pearce v. F.2d authority by courts and the abuse of (10th 1965), said: place es- then the burden on defendant to practice It is the at exami- prejudice. court has constant- tablish magis- nations New for the Mexico rosy” ly played “ring around arraign trate to the defendant and re- many procedure. rules civil and criminal quire plea him to enter a upon time, recognized Once a courts to and to state whether or not he desires adopted by the that the was Constitution waive a examination and to accused, not people protect to condemn plea treat a guilty such waiver. him; that Rules of Criminal Procedure adopted Supreme de- by the were Court process, not to them a fol- the defendant’s con- mand due make a violation When proceeding be- de-rol. rights stitutional in the brought the at- fore the time for setting burden of and found
tention trial court state liminary placed on examination exist, right to have it is the accused’s State, courts, the defendant. abated, court’s and the prelimi- showing why the burden it, duty there has been to abate until delayed rests on the nary examination *5 examination, and proper preliminary delay be- long courts and State. remand the accused appearance initial tween examination, accused unless the such by the courts justified examination must be voluntarily competently, intelligently, and opinion, dissenting and the State. See examination. to such waives Budau, P.2d v. (Ct.App.1973). Green, supra; also, United States See should be reversed Taylor, 465 F.2d This case United States magistrate’s court for v. manded to the (10th Cir. United 1972); 1972); liminary examination. Rogers, (5th 455 F.2d