{
  "id": 5336825,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Louis GARCIA, Jr., Defendant-Appellant",
  "name_abbreviation": "State v. Garcia",
  "decision_date": "1972-06-16",
  "docket_number": "No. 843",
  "first_page": "794",
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    "name_abbreviation": "N.M. Ct. App.",
    "id": 9025,
    "name": "Court of Appeals of New Mexico"
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    "name_long": "New Mexico",
    "name": "N.M."
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  "last_updated": "2023-07-14T17:09:20.437308+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "HENDLEY and HERNANDEZ, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Louis GARCIA, Jr., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nCOWAN, Judge.\nThe defendant appeals following his conviction of second degree murder. He raises the issues of (1) failure to give a requested self-defense instruction, (2) forms of verdict, (3) witnesses, (4) rebuttal witnesses, and (5).sufficiency of the evidence. We affirm. \" ..\nDefendant\u2019s first point, claiming that the court erred in refusing defendant\u2019s requested instruction: qm. self-defense, was abandoned on oral-argument. It is conceded that the -court; gave a proper instruction and the issue need not now be considered.\nDefendant next claims error on the ground that no written forms of verdict \u201crelating to first degree murder or either grade of manslaughter\u201d were presented to the jury, in violation of \u00a7\u00a7 41-11-11 and 41-11-12, N.M.S.A.19S3 (Repl.Vol. 6). These sections, however, refer to instructions and not forms- of verdict. Defendant cites no authority supporting his contention, nor do we find any. Additionally, the record discloses that the trial judge stated that he would hand the jury forms of verdict relating to first degree murder, second degree murder, manslaughter and innocence. One of them, finding the defendant guilty of second degree murder, was filed as part of the record. The record is silent as to the .disposition of the others. The record before us fails to establish the fact asserted as error by appellant and, upon a doubtful or deficient record, every presumption must be indulged by this court in favor of the correctness and regularity of the trial court\u2019s judgment. General Services Corp. v. Board of Com\u2019rs, 75 N.M. 550, 408 P.2d 51 (1965).\nDefendant also argues error because a witness, whose name was not endorsed on the indictment, was allowed to testify. This was well within the court\u2019s discretion and in the absence of abuse of that discretion, permitting the witness to testify was not error. Section 41-6-47, N. M.S.A.1953 (Repl.Vol. 6); State v. Lujan, 79 N.M. 200, 441 P.2d. 497 (1968). Furthermore, .defendant claims that without this witness\u2019s testimony, the state would have failed to prove the corpus delicti. \u201cThe corpits /delicti of a particular offense is established simply by proof that the crime was committed. . . .\u201d State v. Nance, 77 N.M. 39, 419 P.2d 242 (1966); State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971). Witnesses other than the one not endorsed testified regarding the shooting of Archuleta. We find no abuse in the record.\nDefendant\u2019s next point is concerned with claimed improper rebuttal testimony and collateral impeachment. The testimony related to photographs of the scene which defendant _ claims should have been introduced in the state\u2019s case-in-chief. Defendant also claims that testimony concerning his physical condition was an improper attempt to impeach defense witnesses. Admission of the testimony was clearly within the court\u2019s discretion. The record reveals neither an abuse\u2019 of that discretion nor prejudice to the defendant. State v. Montoya, 78 N.M. 294, 430 P.2d 865 (1967).\nDefendant\u2019s final point attempts to raise the issue of substantial evidence. Defendant claims that he moved for a directed verdict of acquittal at the close of the state\u2019s case, which was improperly denied. Actually, the defendant moved the court to remove the issues of first and second degree murder from the jury\u2019s consideration for failure of proof of premeditation and because the shooting occurred during the heat of passion. This did not amount to a motion for a directed verdict. A motion for a directed verdict calls for a ruling by the trial court based on the evidence. It cannot be raised for the first time on appeal. State v. Williams, 83 N. M. 477, 493 P.2d 962 (Ct.App.1972). Furthermore, counsel for defendant advised the jury in- his opening statement that the defendant, did the shooting and the entire defense was- predicated on the theory of self-defense. This point is without merit.\nThere' being no reversible error, the judgment and senteiice is affirmed.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.",
        "type": "majority",
        "author": "COWAN, Judge."
      }
    ],
    "attorneys": [
      "Patrick L. Chowning, Albuquerque, for defendant-appellant.",
      "David L. Norvell, Atty. Gen., Santa Fe, Ronald Van Amberg, Asst. Atty. Gen., for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "498 P.2d 681\nSTATE of New Mexico, Plaintiff-Appellee, v. Louis GARCIA, Jr., Defendant-Appellant.\nNo. 843.\nCourt of Appeals of New Mexico.\nJune 16, 1972.\nPatrick L. Chowning, Albuquerque, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Santa Fe, Ronald Van Amberg, Asst. Atty. Gen., for plaintiff-appellee."
  },
  "file_name": "0794-01",
  "first_page_order": 920,
  "last_page_order": 922
}