{
  "id": 2776115,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Teofilo E. LUCERO, Jr., Juan S. Silva and Tony Montenegro, Defendants-Appellants",
  "name_abbreviation": "State v. Lucero",
  "decision_date": "1957-07-19",
  "docket_number": "No. 6173",
  "first_page": "80",
  "last_page": "82",
  "citations": [
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      "cite": "63 N.M. 80"
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    {
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      "cite": "313 P.2d 1052"
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  "court": {
    "name_abbreviation": "N.M.",
    "id": 8835,
    "name": "Supreme Court of New Mexico"
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    "id": 52,
    "name_long": "New Mexico",
    "name": "N.M."
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      "reporter": "P.",
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      "cite": "45 N.M. 116",
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      "reporter": "N.M.",
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  "last_updated": "2023-07-14T17:04:51.657225+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "SADLER and COMPTON, JJ., concur.",
      "LUJAN, C. J., not participating."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Teofilo E. LUCERO, Jr., Juan S. Silva and Tony Montenegro, Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "McGPIEE, Justice.\nThe appellants seek a reversal of their conviction of \u201crobbery while unarmed\u201d because of claimed insufficiency of the evidence.\nOn the- night of March 5, 1955, appellants Te\u00f3filo E. Lucero, Jr., Juan S. Silva and Tony Montenegro, accompanied by Julian Montes, a juvenile, were riding in a car driven by appellant Lucero near Hatch, New Mexico. While the testimony is somewhat contradictory, it is agreed that they gave rides to three seasonal farm laborers known in the area as \u201cbraceros\u201d. Two of the laborers were taken to Arrey, a village near Hatch. The third, Ramon Reyhosa, complaining witness in this case, journeyed on to Truth or Consequences, New Mexico, with appellants and was returned near Arrey later that night. It is further agreed by the parties that on getting out of the car Reynosa was followed by Tony Montenegro and Julian Montes and that a fight ensued. Silva remained in the back seat of the car and Lucero stayed in the driver\u2019s seat, keeping the engine running. Reynosa testified that Montenegro and Montes demanded his money, struck him with a short chain taken from a truck earlier in the evening and after beating and robbing him, left him beside the road only partly conscious. He stated that he made his way to the place of Joe E. Lara who took him to-the ranch of Mark Tipton, where he was employed. Both Lara and Tipton testified that Reynosa had been severely beaten. Appellants denied that they had robbed Reynosa and stated that on leaving the car to urinate that Reynosa had picked a fight. Montes was dismissed from the case at the close of the evidence and transferred to the Juvenile section for further action.\nThe sole attack upon the judgment of the lower court is that there was not sufficient evidence in the case to support a verdict of guilty.\nAs this court stated in City of Roswell v. Hall, 45 N.M. 116, 112 P.2d 505: \u201cWe have held in numerous cases that if there is substantial evidence to support a judgment or sentence in a civil or criminal case that it will not be disturbed on appeal; and in determining whether there is substantial evidence we will consider only that part of the evidence supporting the judgment, and reject the opposing or conflicting testimony.\u201d When viewed in this light the evidence is as follows:\nThere is positive testimony that Montenegro and Montes assaulted Reynosa and robbed him. It is also certain from the testimony of Lara and Tipton, two apparently responsible and disinterested witnesses except that Tipton was the \u2022employer of the prosecuting witness, that Reynosa took a bad beating. There is testimony that Lucero, the driver of the car, kept the motor running, saw what occurred and drove the get-away car. Under the present law Lucero is guilty as a principal.\nThere was no inherent improbability in the story narrated by the prosecuting witness, nor was his story shaken in any material particulars on cross-examination. We said in State v. Hunter, 37 N.M. 382, 24 P.2d 251, 252: \u201cThe verdict of the jury will not be set aside merely because this court is not satisfied beyond all reasonable doubt of defendant\u2019s guilt.\u201d See State v. Frazier, 17 N.M. 535, 131 P. 502.\nWe find the evidence sufficient to sustain the verdict as to Te\u00f3filo E. Lucero, Jr., and Tony Montenegro.\nThe situation is different as to Silva. There is no evidence that he left the car, had anything to do with the fight, took part in the robbery or shared in its proceeds. The evidence is conclusive that he was asleep during the latter part of the trip and the complaining witness testified \u201che didn\u2019t bother me at all\u201d. There was a total lack of any evidence to show a community of purpose to accomplish the crime charged, or any acts, words, signs, or motions that would evince a design to encourage, incite, or approve of the crime. See State v. Wilson, 39 N.M. 284, 46 P.2d 57.\nWe hold that the evidence is insufficient to support the verdict as to Juan S. Silva.\nThe judgment will be affirmed as to Te\u00f3filo E. Lucero, Jr., and Tony Montenegro, but reversed with instructions to discharge as to Juan S. Silva.\nIt is so ordered.\nSADLER and COMPTON, JJ., concur.\nLUJAN, C. J., not participating.",
        "type": "majority",
        "author": "McGPIEE, Justice."
      },
      {
        "text": "KIKER, Justice\n(dissenting).\nThere is conflict among the statements made by the prosecuting witness as to the facts to such an extent that I am wholly uncertain as to that which occurred. For that reason I am compelled to dissent.",
        "type": "dissent",
        "author": "KIKER, Justice"
      }
    ],
    "attorneys": [
      "W. A. Sutherland, Las Cruces, for appellants.",
      "Fred M. Standley, Atty. Gen., Robert F. Pyatt and Santiago E. Campos, Ass\u2019t Attys. Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "313 P.2d 1052\nSTATE of New Mexico, Plaintiff-Appellee, v. Teofilo E. LUCERO, Jr., Juan S. Silva and Tony Montenegro, Defendants-Appellants.\nNo. 6173.\nSupreme Court of New Mexico.\nJuly 19, 1957.\nRehearing Denied Aug. 16, 1957.\nW. A. Sutherland, Las Cruces, for appellants.\nFred M. Standley, Atty. Gen., Robert F. Pyatt and Santiago E. Campos, Ass\u2019t Attys. Gen., for appellee."
  },
  "file_name": "0080-01",
  "first_page_order": 112,
  "last_page_order": 114
}