State v. Lindwood , 79 N.M. 439 ( 1968 )

OPINION

SPIESS, Chief Judge.

Morris Lindwood was tried to a jury and convicted of unauthorized entry with intent to commit theft in violation of § 40A-16-3, N.M.S.A.1953. At the close of the evidence the trial court instructed the jury and final argument commenced. During the course of the state’s closing arguments reference was made to an instruction on impeachment. Appellant moved for a mistrial on the ground that the state was arguing on an instruction which was not given.

In agreeing that the instruction on impeachment had not been given the court stated that the omission was inadvertent and sent the reporter to bring the missing instruction which was then identified as 14a and read to the jury. The court then said: “In order to have proper continuity here, the defendant will he given an opportunity at this point to argue Instruction 14a on impeachment and then the State may conclude.” Defendant then presented argument on the Instruction 14a after which the state concluded its closing argument.

By this appeal appellant asserts error in denial of his motion for mistrial based on two grounds. First he asserts that failure of the trial judge to instruct the jury prior to closing arguments as required by § 41-11-12, N.M.S.A.1953, resulted in a denial of due process. Second he contends that giving the instruction out of time and sequence directed undue attention to the particular subject.

In our opinion there is no merit to either contention. Although § 41-11-12, supra, provides the judge shall charge the jury before argument of counsel this rule is not without exception. It is well recognized in New Mexico that instructions may properly be given out of sequence under certain circumstances. For example a so-called “shotgun” or supplemental instruction given after the jury had retired to their deliberations was approved in Garcia v. Sanchez, 68 N.M. 394, 362 P.2d 779 (1961), and State v. Hatley, 72 N.M. 377, 384 P.2d 252 (1963), and instructions in response to jury questions have likewise been approved. State v. Moore, 42 N.M. 135, 76 P.2d 19 (1938) ; State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959).

Language in State v. Beal, 48 N.M. 84, 146 P.2d 175 (1944), which appellant claims makes instruction prior to argument mandatory is taken out of context and was clearly directed to another provision of this rule (§ 41-11-12, supra). We do not feel that it was directed toward or intended to apply to the instant situation. Directions in a statute which are not the essence of things to be done are not commonly considered mandatory, particularly where failure to comply does not result in prejudice. State ex rel. Sun Co. v. Vigil, 74 N.M. 766, 773, 398 P.2d 987 (1965) ; Ross v. State Racing Commission, 64 N.M. 478, 481, 330 P.2d 701 (1958).

Adoption of the rule providing for instruction of the jury prior to argument of counsel was not intended as an invariable rule to be administered in such a manner as to deprive the trial judge of his right to give additional instructions where the situation warrants such action. State v. Moore, supra.

We recognize that it is error to' single out one instruction for undue emphasis. Terry v. Biswell, 66 N.M. 201, 343 P.2d 217 (1959); Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966). However, as pointed out in Scott v. Brown, supra, absolute uniformity in manner and form of presenting instructions to the jury is seldom obtained. Appellant has the burden of demonstrating that he was prejudiced by the claimed error and the mere fact that an instruction is given out of the ordinary sequence, even in plain contravention of statute does not of itself establish prejudice. Wheeler v. Hotel Stevens Co., 71 Wash. 142, 127 P. 840 (1912) ; Purcell v. Warburton, 70 Wash. 129, 126 P. 89 (1912); Mann’s Adm’r v. Reynolds, 150 Ky. 313, 150 S.W. 329 (1912). We are impressed that the court acted immediately to supply the impeachment instruction as soon as its omission became known and appellant availed himself fully of the opportunity to argue the point prior to the state’s closing its argument. In our view appellant has not met the burden imposed upon him.

Finding no prejudice the error was harmless. We do not correct harmless error. Irwin v. Lamar, 74 N.M. 811, 399 P.2d 400 (1964).

Finding no error the judgment will be affirmed.

It is so ordered.

ARMIJO, J., concurs.