{ "id": 5321896, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Floyd Woodrow HINES, Defendant-Appellant", "name_abbreviation": "State v. Hines", "decision_date": "1967-10-23", "docket_number": "No. 8286", "first_page": "471", "last_page": "474", "citations": [ { "type": "official", "cite": "78 N.M. 471" }, { "type": "parallel", "cite": "432 P.2d 827" } ], "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": "143 P. 482", "category": "reporters:state_regional", "reporter": "P.", "year": 1914, "opinion_index": 0 }, { "cite": "19 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4704877 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nm/19/0393-01" ] }, { "cite": "34 N.M. 458", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556072 ], "weight": 2, "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0458-01" ] }, { "cite": "59 N.M. 284", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589292 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0284-01" ] }, { "cite": "61 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5317492 ], "weight": 2, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0204-01" ] }, { "cite": "35 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557958 ], "weight": 2, "year": 1931, "opinion_index": 0, "case_paths": [ "/nm/35/0550-01" ] }, { "cite": "41 N.M. 474", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571413 ], "weight": 2, "year": 1937, "opinion_index": 0, "case_paths": [ "/nm/41/0474-01" ] }, { "cite": "68 N.M. 40", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2719007 ], "weight": 3, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/68/0040-01" ] }, { "cite": "117 P. 831", "category": "reporters:state_regional", "reporter": "P.", "year": 1911, "opinion_index": 0 }, { "cite": "16 N.M. 442", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4683665 ], "year": 1911, "opinion_index": 0, "case_paths": [ "/nm/16/0442-01" ] }, { "cite": "231 U.S. 162", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3671331 ], "weight": 3, "year": 1913, "opinion_index": 0, "case_paths": [ "/us/231/0162-01" ] }, { "cite": "210 P. 565", "category": "reporters:state_regional", "reporter": "P.", "year": 1922, "opinion_index": 0 }, { "cite": "28 N.M. 221", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841769 ], "year": 1922, "opinion_index": 0, "case_paths": [ "/nm/28/0221-01" ] }, { "cite": "56 N.M. 214", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584745 ], "weight": 2, "year": 1952, "opinion_index": 0, "case_paths": [ "/nm/56/0214-01" ] }, { "cite": "52 N.M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579470 ], "weight": 2, "year": 1948, "opinion_index": 0, "case_paths": [ "/nm/52/0015-01" ] }, { "cite": "57 N.M. 459", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842161 ], "weight": 2, "year": 1953, "opinion_index": 0, "case_paths": [ "/nm/57/0459-01" ] }, { "cite": "78 N.M. 212", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324983 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0212-01" ] }, { "cite": "78 N.M. 165", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324091 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0165-01" ] } ], "analysis": { "cardinality": 475, "char_count": 7002, "ocr_confidence": 0.676, "pagerank": { "raw": 1.1652963549982097e-06, "percentile": 0.9869994351022009 }, "sha256": "72830149e06b1f1aad150f40f5a03d4efb23ff398d7214fb60c2a37b6a7f857a", "simhash": "1:355f7086324949cb", "word_count": 1141 }, "last_updated": "2023-07-14T21:27:10.359171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "NOBLE and MOISE, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Floyd Woodrow HINES, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge, Court of Appeals.\nDefendant\u2019s motion for post-conviction relief was denied without a hearing. His appeal raises three issues: (1) absence of hearing on his motion, (2) inadequate representation and (3) constitutionality of the felony-murder law.\nDefendant contends that he was not advised of his right to a preliminary hearing, had none, and did not waive the same. The record shows that he had a preliminary hearing. In his brief, defendant asserts that he intended to claim that he was not arraigned before trial. This claim was not presented to the trial court; further, the record shows that defendant was arraigned.\nDefendant claims that since he was not learned in the law, he should have been granted a hearing \u201cto show what he was talking about.\u201d The records and files conclusively show that defendant was not entitled to relief either on a claim of lack of a preliminary hearing or lack of arraignment. Under \u00a7 21-1-1(93), N.M.S.A.1953, no hearing was required on these contentions.\nDefendant asserts that he had inadequate representation. He bases this claim on the following allegations: (1) no \u201cplea of abatement\u201d was filed during or prior to his arraignment, (2) jurors were released during their deliberations and (3) counsel \u201cpermitted\u201d the testimony of an accomplice.\nThese allegations pertain to trial tactics and strategy. They are matters over which the attorney has control. State v. Selgado, 78 N.M. 165, 429 P.2d 363 (1967). Bad tactics and improvident strategy do not necessarily amount to ineffective assistance of counsel. Defendant is denied effective assistance of counsel only where the trial, considered as a whole, was a mockery of justice, a sham or a farce. State v. Moser, 78 N.M. 212, 430 P.2d 106 (1967). Assuming the allegations are true, they do not raise such an issue. Accordingly, the allegations set forth no basis for relief.\nDefendant attacks the constitutionality of the felony-murder law. The statute, \u00a7 40-24-4, N.M.S.A.1953, has been repealed; our present statute appears at \u00a7 40A-2-1, N.M.S.A.1953. Section 40-24-4, N.M.S.A, 1953, the statute under which the prisoner was charged, classifies murder as first and second degree. The applicable portion reads:\n\u201cAll murder * * * which is committed in the perpetration of or attempt to perpetrate any felony * * * shall be deemed murder in the first degree * * * \u00bb\nDefendant makes three attacks on the constitutionality of the statute. He claims that the statute violates (1) the equal protection clauses of the Fourteenth Amendment to the United States Constitution and Article II, \u00a7 18 of the New Mexico Constitution, (2) the due process clauses of the Fourteenth Amendment to the United States Constitution and Article II, \u00a7 18 of the New Mexico Constitution and (3) Article IV, \u00a7 18 of the New Mexico Constitution.\nState v. Thompson, 57 N.M. 459, 260 P.2d 370 (1953), states that if legislation:\n\u201c * * * [M] akes no arbitrary or unreasonable distinction within the sphere of its operation and accords substantially equal and uniform treatment to all persons similarly situated, the law complies with the equality provision.\u201d\nThe felony-murder provisions of \u00a7 40-24-4, N.M.S.A.1953, apply to any felony.\nAt the time defendant was charged in 1958, our felonies ranged from fraud, in the sale of jewelry, \u00a7 40-21-32, N.M.S.A.1953, to murder. The range of felonies covered \"acts malum prohibitum as well as acts mahim in se. Defendant contends that inclusion of all felonies within the felony-murder rule is an unreasonable classification. He asserts that an unreasonable classification results from the failure to distinguish between the various acts declared to be felonies.\nHow does this claimed unreasonable classification apply to defendant? He does not attempt to show how the felony-murder statute, as applied to him, deprived him of equal protection of the law.\nState v. Prince, 52 N.M. 15, 189 P.2d 993 (1948), states:\n\u201cA penal statute should define the act necessary to constitute an offense with such certainty that a person who violates it must know that his act is criminal when he does it. * * * \u201d\nDefendant asserts that \u00a7 40-24-4, N.M. 5.A. 1953, is unconstitutionally vague and thus deprives him of due process of law.\nHow does this claimed unconstitutional vagueness apply to defendant? Defendant does not attempt to apply the claim of vagueness to the facts of his case.\nThe denial of equal rights can be urged only by those who can show they belong to the class discriminated against. Wiggs v. City of Albuquerque, 56 N.M. 214, 242 P.2d 865 (1952); McKinley County Board of Education v. State Tax Commission, 28 N.M. 221, 210 P. 565 (1922).\nA violation of due process can be urged only by those who can show an impairment of their rights in the application of the statute to them. Straus v. Foxworth, 231 U.S. 162, 34 S.Ct. 42, 58 L.Ed. 168 (1913), affirming 16 N.M. 442, 117 P. 831 (1911).\nThe complainant must allege in what manner his constitutional rights are adversely affected. Patton v. Fortuna Corp., 68 N.M. 40, 357 P.2d 1090 (1960); Hutcheson v. Gonzales, 41 N.M. 474, 71 P.2d 140 (1937); In re Gibson, 35 N.M. 550, 4 P.2d 643 (1931). This court does not sit to decide abstract constitutional questions. In re Hickok\u2019s Will, 61 N.M. 204, 297 P.2d 866 (1956). The constitutionality of a legislative act is open to attack only by a person whose rights are affected thereby. Patton v. Fortuna Corp., supra; State v. Klantchnek, 59 N.M. 284, 283 P.2d 619 (1955); State v. Tinsley, 34 N.M. 458, 283 P. 907 (1929).\nDefendant\u2019s claims are presented as abstract propositions: he does not allege how these propositions apply to him. Neither the claimed denial of equal protection nor the claimed violation of due process presents an issue for decision.\nIn 1958, when defendant was convicted, Article IV, \u00a7 18 of the New Mexico Constitution read:\n\u201cNo law shall be revised or amended, or the provisions thereof extended by reference to its title only; but each section thereof as revised, amended or extended shall be set out in full.\u201d\nDefendant contends that \u00a7 40-24-4, N.M. S.A.1953, violates this constitutional provision because the statute \u201cextends the felony laws into the murder definition by reference only.\u201d\nThe constitutional provision is not applicable. Section 40-24-4, N.M.S.A. was enacted in 1907 and was never amended. The statute was enacted prior to the adoption of the constitutional provision. The prohibition of Article IV, \u00a7 18 of the New Mexico Constitution does not apply to legislation in existence at the time the constitution was adopted. State v. Elder, 19 N.M. 393, 143 P. 482 (1914).\nThe order denying relief is affirmed.\nIt is so' ordered.\nNOBLE and MOISE, JJ., concur.", "type": "majority", "author": "WOOD, Judge, Court of Appeals." } ], "attorneys": [ "Robert S. Skinner, Raton, for appellant.", "Boston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "432 P.2d 827\nSTATE of New Mexico, Plaintiff-Appellee, v. Floyd Woodrow HINES, Defendant-Appellant.\nNo. 8286.\nSupreme Court of New Mexico.\nOct. 23, 1967.\nRobert S. Skinner, Raton, for appellant.\nBoston E. Witt, Atty. Gen., James V. Noble, Asst. Atty. Gen., for appellee." }, "file_name": "0471-01", "first_page_order": 511, "last_page_order": 514 }