{ "id": 5333445, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Geronimo BORUNDA, Defendant-Appellant", "name_abbreviation": "State v. Borunda", "decision_date": "1972-01-28", "docket_number": "No. 659", "first_page": "563", "last_page": "566", "citations": [ { "type": "official", "cite": "83 N.M. 563" }, { "type": "parallel", "cite": "494 P.2d 976" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "383 U.S. 116", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168414 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/383/0116-01" ] }, { "cite": "82 N.M. 548", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5327070 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0548-01" ] }, { "cite": "82 N.M. 204", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5333190 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0204-01" ] }, { "cite": "323 U.S. 606", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1229605 ], "weight": 3, "year": 1945, "opinion_index": 0, "case_paths": [ "/us/323/0606-01" ] }, { "cite": "54 P. 232", "category": "reporters:state_regional", "reporter": "P.", "year": 1898, "opinion_index": 0 }, { "cite": "9 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2382302 ], "year": 1898, "opinion_index": 0, "case_paths": [ "/nm/9/0400-01" ] }, { "cite": "45 P. 1106", "category": "reporters:state_regional", "reporter": "P.", "year": 1896, "opinion_index": 0 }, { "cite": "8 N.M. 523", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4666063 ], "year": 1896, "opinion_index": 0, "case_paths": [ "/nm/8/0523-01" ] }, { "cite": "81 N.M. 550", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370995 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0550-01" ] }, { "cite": "81 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358341 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0571-01" ] }, { "cite": "82 N.M. 393", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326341 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/82/0393-01" ] }, { "cite": "9 P. 598", "category": "reporters:state_regional", "reporter": "P.", "year": 1886, "opinion_index": 0 }, { "cite": "3 N.M. (John) 368", "category": "reporters:state", "reporter": "N.M. (J.)", "year": 1886, "opinion_index": 0 }, { "cite": "3 N.M. (Gild.) 648", "category": "reporters:state", "reporter": "N.M. (Gild.)", "opinion_index": 0 }, { "cite": "77 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2809684 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0129-01" ] }, { "cite": "80 N.M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5364417 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/80/0599-01" ] }, { "cite": "62 N.M. 147", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2712667 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0147-01" ] } ], "analysis": { "cardinality": 529, "char_count": 8718, "ocr_confidence": 0.674, "pagerank": { "raw": 1.699055184424963e-07, "percentile": 0.7004997202539608 }, "sha256": "2a4e4f5ec18b0735268c81ff7506cc3c5a937c2aae5337049f8e8fa0c4045d1a", "simhash": "1:87e66638d7a52ae5", "word_count": 1408 }, "last_updated": "2023-07-14T17:09:20.437308+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOOD, C. J., and SUTIN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Geronimo BORUNDA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nHENDLEY, Judge.\nDuring the trial of Juan Valdez, for the shooting of State Police Officer Sais, defendant took the stand and testified he, rather than Valdez shot Sais. Juan Valdez was convicted. Subsequently defendant was indicted for and convicted of perjury (\u00a7 40A-25-1, N.M.S.A.1953 (Repl. Vol.1964)). Defendant appeals asserting: 1) an improper instruction regarding an element of perjury; 2) lack of substantial evidence; and, 3) by allowing the state a continuance defendant was denied his constitutional right to a speedy trial.\nWe affirm.\nINSTRUCTIONS REGARDING THE CRIME OF PERJURY.\nSection 40A-25-1, supra, defines perjury as:\n\u201c * * * making a false statement under oath or affirmation, material to the issue or matter involved in the course of any judicial, administrative, legislative or other official proceeding, knowing such statement to be untrue.\u201d\nThe trial court instructed the jury on perjury by quoting the statutory definition. Defendant\u2019s requested but refused instruction stated in part:\n\u201c * * * that the Defendant knew at the time of giving said testimony that it was false, and that he gave said testimony wilfully and for the purpose of corruption.\u201d\nDefendant contends that \u201cwilfully testifying falsely\u201d is the gravamen of the offense charged and that the jury was denied an opportunity to pass upon the state of mind of the defendant which is an essential element in determining guilt or innocence. Defendant bases this contention upon State v. Reed, 62 N.M. 147, 306 P.2d 640 (1957). Reed is not applicable. It was based on the predecessor statute \u00a7 40-32-2, N.M.S.A.1953, repealed by the Laws of 1963, ch. 303, \u00a7 30-1. \u201cWilfulness\u201d as an aspect distinct from \u201cknowledge\u201d is not a part of the offense established by \u00a7 40A-25-1, supra. The trial court did not err in refusing to instruct on \u201cwilfulness\u201d; it properly instructed in accordance with the statute. See State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.App.1969).\nThis case is controlled by State v. Montoya, 77 N.M. 129, 419 P.2d 970 (1966) which dealt with the statute under which defendant was convicted. Montoya stated:\n\u201cKnowledge, like intent, is personal in its nature and may not be. susceptible of proof by direct evidence. It may, however, be inferred from occurrences and circumstances. The act itself may be such as will warrant an inference of knowledge * *\nThe instructions given provided the jury an adequate standard by which to determine the existence of knowledge when defendant made the false statement under oath, which was material to the issue in the course of a judicial proceeding.\n\u25a0 SUBSTANTIAL EVIDENCE.\nDefendant contends a special rule of evidence applies in perjury cases and that under that rule the evidence is insufficient to sustain the conviction. Such a special rule was declared in Territory v. Remuzon, 3 N.M. (Gild.) 648, 3 N.M. (John) 368, 9 P. 598 (1886). It is:\n\u201cFormerly it required the testimony of two witnesses to prove the falsity of the statements on which perjury was assigned in order to convict * * *.\n\u201cThis rule has been in later years relaxed to some extent; but it is still necessary to prove the falsity of defendant\u2019s sworn statements beyond a reasonable doubt. This may be done by the testimony of one witness supported by corroborating evidence or circumstances. But the corroboration must go beyond slight or indifferent particulars; it must strongly support the accusing witness * * *_\u00bb\nA similar special rule applies in rape cases. State v. Polsky, 82 N.M. 393, 482 P.2d 257 (Ct.App.1971); State v. Turner, 81 N.M. 571, 469 P.2d 720 (Ct.App.1970). Such special rules appear contrary to the approach taken in most criminal prosecutions \u2014 that a defendant may be convicted on the testimony of a single - witness and even when that witness is the victim, an accomplice or an informer. State v. Maes, 81 N.M. 550, 469 P.2d 529 (Ct.App.1970); see State v. Polsky, supra. Although Territory v. Remuzon, supra, was overruled on other grounds in Territory v. Lockhart, 8 N.M. 523, 45 P. 1106 (1896), the special rule as to the necessary evidence was reaffirmed in Territory v. Williams, 9 N.M. 400, 54 P. 232 (1898).\nJustification for the special rule is that it is not unreasonable that a conviction for perjury \"* * * ought not to rest entirely upon 'an oath against an oath.\u2019 \u201d Weiler v. United States, 323 U.S. 606, 65 S.Ct. 548, 89 L.Ed. 495 (1945); Territory v. Williams, supra. Weiler also states that a special rule for perjury prosecutions \u201c * * * is well nigh universal.\u201d Accordingly, we proceed on the basis that the rule announced in Territory v. Remuzon, supra, is applicable.\nThe question then is whether the evidence is sufficient under that rule. We hold that it is. There is direct evidence that defendant\u2019s testimony in the Valdez trial was false. The \u201cstrong support\u201d is the testimony of four witnesses placing Valdez at the scene when Sais was shot. One of the four witnesses testified that Valdez was close to Sais after the shot was fired and that Valdez had a gun in his hand. This evidence is sufficient corroboration under the special rule.\nDefendant claims the testimony of the corroborating witnesses is circumstantial and is insufficient under the circumstantial oevidence rule; specifically, that the testimony of the corroborating witnesses does not point unerringly to the falsity of defendant\u2019s testimony and does not exclude every reasonable. hypothesis other than defendant\u2019s guilt of perjury. We disagree. The evidence is to be viewed in its most favorable aspect in support of the verdict. Viewed in that light, the circumstantial evidence corroborating the direct evidence of perjury is irreconcilable with any reasonable theory of innocence. State v. Beachum, 82 N.M. 204, 477 P.2d 1019 (Ct.App.1970). What defendant seeks under this point is a declaration that the jury should have believed the defense witnesses rather than the State\u2019s witnesses. Credibility of the witnesses is for the jury. The verdict shows the jury believed the State\u2019s witnesses, and the testimony of the State\u2019s witnesses excludes every reasonable hypothesis other than defendant\u2019s guilt.\nRIGHT TO SPEEDY TRIAL.\nDefendant contends that the lower court violated the rule applicable to trial settings in the Second Judicial District that \u201cno trial will be vacated except by motion, hearing, and order.\u201d Defendant contends that by allowing the State a continuance in violation of this rule, he was denied his constitutional right to a speedy trial.\nThe record shows that defendant filed his first motion to dismiss on July 7, 1970 because the prosecution called the defendant and informed him that the prosecution witnesses were still unavailable. On July 8, 1970 counsel for both parties appeared before the court. There is a lapse in the record concerning what transpired after that. On July 17, 1970 there was an order denying defendant\u2019s motion to dismiss.\nSection 21-8-11, N.M.S.A.1953 (Repl.Vol.1970) provides in part: \u201cIf the application for continuance is * * * held sufficient the cause shall be continued, * ' * Unless the trial court has abused its discretion the reviewing court will not set aside the action of the trial court in the granting of a motion of continuance. See State v. Jaramillo, 82 N.M. 548, 484 P.2d 768 (Ct.App.1971).\nFrom the record we cannot state as a matter of law that the trial fcourt abused its discretion. We note from the record that defendant had received continuances totalling over five months while he now argues- for reversal because of a one week continuance for the prosecution.\nDefendant argues that he was prejudiced in part because one -of his witnesses died between July 7, 1970 and the trial on July 15, 1970. The record shows that this was a character witness and that there was ample testimony by other witnesses concerning defendant\u2019s character. There is no indication that the delay by the prosecution was brought about by concerted acts of state officials. Defendant was free on bond during the' whole period of the continuances. No undue and oppressive incarceration is involved. Under the circumstances, there was no denial of the right to a speedy trial. See United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966); State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971)\nAffirmed.\nIt is so ordered.\nWOOD, C. J., and SUTIN, J., concur.", "type": "majority", "author": "HENDLEY, Judge." } ], "attorneys": [ "Barry Rudolf, Santa Fe, for appellant.", "David L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe., for appellee." ], "corrections": "", "head_matter": "494 P.2d 976\nSTATE of New Mexico, Plaintiff-Appellee, v. Geronimo BORUNDA, Defendant-Appellant.\nNo. 659.\nCourt of Appeals of New Mexico.\nJan. 28, 1972.\nRehearing Denied Jan. 31, 1972.\nCertiorari Denied March 7, 1972.\nBarry Rudolf, Santa Fe, for appellant.\nDavid L. Norvell, Atty. Gen., Thomas Patrick Whelan, Jr., Asst. Atty. Gen., Santa Fe., for appellee." }, "file_name": "0563-01", "first_page_order": 689, "last_page_order": 692 }