{ "id": 8503685, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert SANDOVAL, Defendant-Appellant", "name_abbreviation": "State v. Sandoval", "decision_date": "1966-07-18", "docket_number": "No. 7962", "first_page": "570", "last_page": "572", "citations": [ { "type": "official", "cite": "76 N.M. 570" }, { "type": "parallel", "cite": "417 P.2d 56" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "74 N.M. 717", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2801147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/74/0717-01" ] }, { "cite": "380 U.S. 609", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1524757 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/380/0609-01" ] }, { "cite": "76 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500834 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/76/0141-01" ] }, { "cite": "184 P. 977", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "25 N.M. 514", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4734406 ], "opinion_index": 0, "case_paths": [ "/nm/25/0514-01" ] }, { "cite": "37 N.M. 382", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575337 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/37/0382-01" ] } ], "analysis": { "cardinality": 377, "char_count": 5075, "ocr_confidence": 0.645, "pagerank": { "raw": 1.4918563328108287e-07, "percentile": 0.6631790115948845 }, "sha256": "65267a28d57717f42ea6d4c45588e17bf8d940f50050afcced0f7e9895eff5c5", "simhash": "1:9f679fa8714d95ae", "word_count": 848 }, "last_updated": "2023-07-14T22:44:29.378515+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "CARMODY, C. J., CHAVEZ, and COMPTON, JJ., and LaFEL OMAN, Judge, Court of Appeals, concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert SANDOVAL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nE. T. HENSLEY, Jr., Chief Judge, Court of Appeals.\nHaving been charged, tried and convicted in the District Court of De Baca County with the offense of burglary the defendant was then duly charged, tried and convicted with being an habitual criminal. Following a sentence of life imprisonment, the defendant through his own efforts initiated this appeal and sought a substitution of court-appointed counsel.\nThe appellant based his appeal on twelve propositions, the first of which was that 'the court-appointed attorney was inadequate. The same trial counsel was thereafter appointed to prosecute this appeal and the appellant now concedes that this point may be ignored.\nEight of the propositions that were relied on by the appellant were also included in the brief, supported by the appellant\u2019s \u25a0own notion of the law and as to the points that were intelligible, court-appointed counsel has ably supplied the law pertinent to the subject. Illustrative of the points considered by the court but not treated in this opinion is Point IX:\n' \u201cThat Judge Gallegos imposed sentence immediately after jury returned verdict, contrary to common law' of the United States of America.\n\u201cDefendant\u2019s theory:\n\u201c \u2018that, the first step on appeal is mo-j . tio.n .for retrial, and that judge of .court .:...did. obstruct filing of this motion, in .the imposition of sentence in \u00e1 too hasty manner.\u2019 \u201d\nThe other contentions set forth in the brief as the defendant\u2019s points relate to (1). lack of uniformity in the prosecution of the Habitual Criminal Act, (2) information inaccurately drawn, (3) no warrant was issued for the arrest of the defendant, (4) evidence introduced at the trial that had been obtained without a search warrant, (5) that the trial court did not follow the provisions of \u00a7 20-2-3, N.M.S.A.19S3, (6) that photographs from the New Mexico State Penitentiary were introduced into evidence, (7) that the defendant\u2019s character was defamed by the public prosecutor' in revealing the record of the defendant'to the jury. None of these matters are of consequence in this appeal and are not worthy of further mention. They were included in the brief, brought to the attention of this court, and are now for all purposes laid at rest.\nThe three propositions ' briefed and argued in this court are grouped under two points. Point two complains of the trial court\u2019s instruction, \u2022 \u201cA defendant on his own request- may testify in his own behalf, but his failure to testify shall create no presumption against him, although- it may be the subject of comment or argu^ ment.\u201d Point five was joined with point two and complains of the comment of the district-attorney \u25a0 upon the failure -of the defendant- -to testify in his - own 1 behalf: This point-must-fail for- it-is-not supported by the record and we will not assume facts that do not appear in the bill of exceptions. State v. Hunter, 37 N.M. 382, 24 P.2d 251; State v. Hawkins, 25 N.M. 514, 184 P. 977. The instruction given by the trial court was substantially the same as that given in State v. Buchanan, 76 N.M. 141, 412 P.2d 565. We there stated:\n\u201c * * * The controverted instruction was actually for the benefit of the defendant as a caution to the jury that it should not indulge in any presumption against him because of his failure to testify. There having been no adverse comment by the prosecutor or the trial judge upon the failure to testify, the rule announced in Griffin v. State of California, 1965, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, is not applicable.\u201d\nWe find that points two and five are unworthy of further comment.\nIt is next urged that the imposition of a life sentence was improper because the appellant states that he did not have the assistance of counsel in one of the earlier felony convictions included in the habitual criminal charge. This objection was not presented before the trial court. The record is wholly silent on the point. We will not speculate on whether there was a denial of the constitutional right to the assistance of counsel, or a waiver of the right. Neither will we ignore Supreme Court Rule 20(1), (\u00a7 21-2-1(20) (1), N.M.S.A.1953). See also Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49, and other cases cited therein.\nWe would conclude this case at this point except for the appellant\u2019s unwarranted appraisal of the ability of court-appointed counsel and the despicable comment made by the appellant to the trial court. We would remind habitual felons that the function of an attorney appointed or employed is to see that the cloak of lawful rights is not violated. He is not expected to fashion the proverbial sheep\u2019s clothing.\nThe judgment is affirmed. It is so ordered.\nCARMODY, C. J., CHAVEZ, and COMPTON, JJ., and LaFEL OMAN, Judge, Court of Appeals, concur.", "type": "majority", "author": "E. T. HENSLEY, Jr., Chief Judge, Court of Appeals." } ], "attorneys": [ "Calvin R. Neumann, Clovis, for appellant.", "Boston E. Witt, Atty. Gen., Myles E. Flint, Gary O. O\u2019Dowd, Asst. Attys. Gen. Santa Fe, for appellee." ], "corrections": "", "head_matter": "417 P.2d 56\nSTATE of New Mexico, Plaintiff-Appellee, v. Gilbert SANDOVAL, Defendant-Appellant.\nNo. 7962.\nSupreme Court of New Mexico.\nJuly 18, 1966.\nCalvin R. Neumann, Clovis, for appellant.\nBoston E. Witt, Atty. Gen., Myles E. Flint, Gary O. O\u2019Dowd, Asst. Attys. Gen. Santa Fe, for appellee." }, "file_name": "0570-01", "first_page_order": 602, "last_page_order": 604 }