{ "id": 5363911, "name": "The STATE of New Mexico ex rel. Donald C. PETERS, Jr., Petitioner, v. The Honorable C. R. McINTOSH, Judge of the Eighth Judicial District, and the District Court of the Eighth Judicial District in and for the County of Taos, State of New Mexico, Respondents", "name_abbreviation": "State ex rel. Peters v. McIntosh", "decision_date": "1969-08-29", "docket_number": "No. 8845", "first_page": "496", "last_page": "499", "citations": [ { "type": "official", "cite": "80 N.M. 496" }, { "type": "parallel", "cite": "458 P.2d 222" } ], "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": "93 A.L.R.2d 733", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1963, "opinion_index": 0 }, { "cite": "372 U. S. 335", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1765333 ], "weight": 3, "year": 1963, "opinion_index": 0, "case_paths": [ "/us/372/0335-01" ] }, { "cite": "447 P.2d 650", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1968, "opinion_index": 0 }, { "cite": "73 Cal.Rptr. 410", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1968, "opinion_index": 0 }, { "cite": "69 Cal.2d 832", "category": "reporters:state", "reporter": "Cal. 2d", "case_ids": [ 2304344 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/cal-2d/69/0832-01" ] }, { "cite": "251 S.C. 360", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2131877 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/sc/251/0360-01" ] }, { "cite": "258 Iowa 771", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 4436623 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/iowa/258/0771-01" ] }, { "cite": "250 A.2d 719", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1968, "opinion_index": 0 }, { "cite": "239 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "97 Ill.App.2d 22", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2476114 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-app-2d/97/0022-01" ] }, { "cite": "74 N.M. 263", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802737 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0263-01" ] }, { "cite": "70 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850046 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0209-01" ] }, { "cite": "73 N.M. 287", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5320308 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0287-01" ] }, { "cite": "47 N.M. 218", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1562199 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/nm/47/0218-01" ] }, { "cite": "59 P.2d 893", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 8841977, 8842002 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0330-01", "/nm/40/0331-01" ] }, { "cite": "40 N.M. 331", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842002 ], "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0331-01" ] }, { "cite": "78 N.M. 437", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5325351 ], "weight": 2, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0437-01" ] }, { "cite": "76 N.M. 572", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503718 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0572-01" ] }, { "cite": "75 N.M. 141", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377266 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0141-01" ] }, { "cite": "74 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797636 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0365-01" ] }, { "cite": "354 F.2d 884", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 845602 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/f2d/354/0884-01" ] }, { "cite": "80 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5359004 ], "weight": 2, "year": 1969, "opinion_index": 0, "case_paths": [ "/nm/80/0107-01" ] } ], "analysis": { "cardinality": 632, "char_count": 9353, "ocr_confidence": 0.697, "pagerank": { "raw": 1.0543893896148049e-07, "percentile": 0.5549560997571673 }, "sha256": "c76967b26333d150bc4b579887aa547e1c2e91484ec1827f5e814c31df557352", "simhash": "1:9585d21bfd0fcd2f", "word_count": 1542 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MOISE, COMPTON and TACKETT, JJ., concur.", "NOBLE, C. J., not participating." ], "parties": [ "The STATE of New Mexico ex rel. Donald C. PETERS, Jr., Petitioner, v. The Honorable C. R. McINTOSH, Judge of the Eighth Judicial District, and the District Court of the Eighth Judicial District in and for the County of Taos, State of New Mexico, Respondents." ], "opinions": [ { "text": "OPINION\nWATSON, Justice.\nOn May 22, 1969, a petition for writ of mandamus, together with an affidavit of poverty, was delivered to the chief justice of this court with a copy of an affidavit of financial status, all verified by the petitioner, Donald C. Peters, Jr. The petition recited that Peters was in the Taos County Jail under two criminal complaints and arrest warrants for the violation of \u00a7 54-5-18, N.M.S.A.1953 Comp, (possession of lysergic acid diethylamide (LSD) ), and that the committing magistrate had filed a certificate for appointment of counsel and the affidavit of financial status mentioned above with the district court showing that the petitioner was a \u201cneedy person,\u201d but that the judge thereof (respondent herein) had refused to appoint counsel to represent him free of charge, as required by the Indigent Defense Act, \u00a7 41-22-1 to \u00a7 41-22-10, N.M.S.A.1953 Comp. (1968 Interim Supp.). Section 41-22-2(C) of this Act reads:\n\u201cAs used in the Indigent Defense Act [41-22-1 to 41-22-10]:\n\u00ab* * *\n\u201cC. \u2018needy person\u2019 means a person who, at the time his need is determined by the court, is unable, without undue hardship, to provide for the full payment of an attorney and all other necessary expenses of representation; and\n\u00ab* * *\u00bb\nBy his affidavit of financial status petitioner stated that he was without funds to employ an attorney or pay the costs of the proceedings because of his poverty. The affidavit was a mimeographed form which elucidated the following information (Petitioner\u2019s answers are indicated by italics) :\n\u201cI. Marital Status:\na. Married\nb. Dependents: [No answer]\nc. Age of Defendant 35\n\u201cII. Residence :\nDefendant\u2019s address: Street\nNone \u2014 Box 506\nSanta Fe, N. M.\n\u201cIII. Employment:\nName of employer Retired Military\nAddress of employer N/A \u2014 not employed nozv\n[Other questions relating to employment followed]\nIncome: Monthly $190.00\nWhat is defendant\u2019s job Retired Military\n\u201cIV. Has defendant or wife received welfare payments during the past year; if so, how much per month and during what period of time? No\nHas defendant or wife received unemployment compensation payments during the past year; if so, how much per month and during what period of time ? No Does defendant have any friends, relatives, or others who can employ an attorney for him? List names and relationship: Not at this time\nState father\u2019s and mother\u2019s names and address; give any reason they cannot help defendant employ an attorney: Deceased\n\u201cV. Financial Status:\n1. Owner of real property: No\n[Other questions relating to real property if owned followed]\n2. Other property:\na. Automobile: Make I960\nPlymouth Model 2 door\nIn whose name registered Donald C. Peters, Jr.\nPresent value of car [No answer]\nAmount owed None\nOwed to N/A\nb. Cash on hand None\nCash in banks and savings & loan associations [No answer]\nNames and addresses of banks and associations: [No answer]\n3. Obligations:\na. Monthly rental on house or apartment $Est. 60.00\n[Other questions relating to mortgages and other debts followed]\nTotal monthly payments on debts $60.00\n4. Other information pertinent to defendant\u2019s financial status: (Include stocks, bonds, savings bonds, interests in trusts either- owned or jointly owned.) None\u201d\nBased upon this affidavit and a recital in the petition that unsuccessful attempts had been made to retain counsel by offering installment payments from the military pension, the chief justice of this court appointed counsel to represent Peters here. Based only upon this same affidavit, the District Court of Taos County refused to appoint free counsel for Peters.\nAlthough Rule 92 of our Rules of Civil Procedure (\u00a7 21-1-1(92), N.M.S.A. 1953 Comp. (1967 Pocket Supp.) ) makes it the duty of the district court to appoint counsel for the indigent person immediately upon receipt of a certificate of indigency from the committing magistrate, we do not construe this as depriving the district court of its right to determine whether \u201csuch person is in fact indigent.\u201d\nRule 92, supra, provides for the appointment of an attorney to represent the \u201cindigent\u201d at the preliminary hearing. Although \u00a7 41-22-3, N.M.S.A.1953 Comp. (1968 Interim Supp.) would provide an attorney for a \u201cneedy person who is being detained by a law enforcement officer,\u201d and this could be before the preliminary hearing, \u00a7 41-22-5(A), N.M.S.A.1953 Comp. (1968 Interim Supp.) reads:\n\u201cThe determination of whether a person covered by section 60 [41-22-3] of the Indigent Defense Act [41-22-1 to 41-22-10] is a needy person shall be deferred until his first appearance m court or in a suit for payment or reimbursement, under section 66 [41-22-9] of the Indigent Defense Act, whichever occurs earlier. Thereafter, the court concerned shall determine, with respect to each proceeding, whether he is a needy person.\u201d (Emphasis added.)\nIf our Rule 92, supra, and the Indigent Defense Act are in conflict on a procedural matter, our rule must control. Southwest Underwriters (Benjamin M. Sherman) v. Montoya, 80 N.M. 107, 452 P.2d 176 (1969). The determination of the question of indigency must often be made before the otherwise normal appearance of the accused before the district court. To hold a preliminary hearing without counsel present, unless the right to counsel has been competently, intelligently, and voluntarily waived, vitiates the hearing. Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965). See also State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964).\nIn State v. Powers, 75 N.M. 141, 401 P.2d 775 (1965), we subscribed to the principle that a showing of an accused\u2019s indigency is a prerequisite to the right of a court-appointed counsel, and in State v. Anaya, 76 N.M. 572, 417 P.2d 58 (1966), we held that it is proper for the trial court to require the defendant to make a reasonable showing that he is unable to employ counsel. Although petitioner here contends that respondent, \u201cwithout hearing,\u201d found he was not indigent and refused to appoint counsel for him, petitioner does not allege that he had asked for a hearing, had been denied a hearing, or has facts in addition to those in his affidavit which he could now present to the court.\nWe are confident that respondent will afford petitioner a hearing at this time if one is requested and that respondent will hereafter determine with respect to each proceeding whether petitioner is an indigent or a needy person, as provided in \u00a7 41-22-5, supra. At such a hearing, or on questioning by the court, State v. Gilbert, 78 N.M. 437, 432 P.2d 402 (1967), sufficient facts should be placed of record to support the court\u2019s conclusion. State v. Anaya, supra. We cannot by mandamus direct his decision. State ex rel. Gallegos v. District Court Ninth Judicial District, 40 N.M. 331, 59 P.2d 893 (1936).\nMandamus is not available to control judicial discretion, \u00a7 22-12-4, N.M.S.A. 1953 Comp., unless there is a clear abuse of that discretion, State ex rel. Heron v. Kool, 47 N.M. 218, 140 P.2d 737 (1943), or unless such action would prevent the doing of useless things. Sender v. Montoya, 73 N.M. 287, 387 P.2d 860 (1963).\nWe cannot say that respondent abused his discretion in determining, on the facts before him, that petitioner was not an indigent or a needy person and entitled to the services of a court-appointed attorney in the proceedings in Taos County. To do so would be substituting our discretion for that of respondent. Rogers v. Lyle Adjustment Company, 70 N.M. 209, 372 P.2d 797 (1962), Edington v. Alba, 74 N.M. 263, 392 P.2d 675 (1964).\nAlthough the courts recognize the relative concepts of indigency and that this determination should be made at the trial court level, the opinions indicate that doubts as to indigency should be resolved in favor of the accused. People v. Cole, 97 Ill.App.2d 22, 239 N.E.2d 455 (1968); State v. Harris, 5 Conn.Cir. 313, 250 A.2d 719 (1968); Schmidt v. Uhlenhopp, 258 Iowa 771, 140 N.W.2d 118 (1966); State v. Cowart, 251 S.C. 360, 162 S.E.2d 535 (1968). See Ingram v. Justice Court for Lake Valley Jud. Dist, 69 Cal.2d 832, 73 Cal.Rptr. 410, 447 P.2d 650 (1968), where it is pointed out that the courts are guardians of the constitu tional guarantees, but not of the public coffers. Since Gideon v. Wainwright, 372 U. S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733 (1963), the motions attacking sentences and the appeals on this question have been so numerous that probably the liberal allowance of free representation to the accused would not only best protect his constitutional guarantees but would, in the long run, result in a savings in public expense.\nHaving concluded that the respondent acted within his judicial discretion in the matter before him, the Alternative Writ of Mandamus is discharged.\nIt is so ordered.\nMOISE, COMPTON and TACKETT, JJ., concur.\nNOBLE, C. J., not participating.", "type": "majority", "author": "WATSON, Justice." } ], "attorneys": [ "Chavez & Roberts, Joseph A. Roberts, Santa Fe, for petitioner.", "James A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for respondents.", "William R. Federici, Santa Fe, Brandenburg & Ramming, Taos, amicus curiae." ], "corrections": "", "head_matter": "458 P.2d 222\nThe STATE of New Mexico ex rel. Donald C. PETERS, Jr., Petitioner, v. The Honorable C. R. McINTOSH, Judge of the Eighth Judicial District, and the District Court of the Eighth Judicial District in and for the County of Taos, State of New Mexico, Respondents.\nNo. 8845.\nSupreme Court of New Mexico.\nAug. 29, 1969.\nChavez & Roberts, Joseph A. Roberts, Santa Fe, for petitioner.\nJames A. Maloney, Atty. Gen., Justin Reid, Asst. Atty. Gen., Santa Fe, for respondents.\nWilliam R. Federici, Santa Fe, Brandenburg & Ramming, Taos, amicus curiae." }, "file_name": "0496-01", "first_page_order": 552, "last_page_order": 555 }