State v. Armijo , 35 N.M. 533 ( 1931 )

ON MOTION FOR REHEARING OPINION OF THE COURT [7] While several points are stated in the motion for rehearing, that most strongly urged in argument is that the verdict and judgment are not supported by substantial evidence. For the proper consideration of that proposition as now presented, some facts should be stated additional to those originally set forth.

The robbery occurred on the night of December 18th and 19th. On January 10th Gentry was arrested and, after a lengthy session with the officers, wrote out his first so-called confession. In it he stated that he did not know that appellants were planning to rob the courthouse until he saw them coming out the side door with the box, and that he had wanted to reveal what he knew but was afraid that appellants would "get" him.

On January 13th he wrote out his second confession. In this he admitted participation to the extent of getting the deputy sheriff out of the way at 12:30 and of acting as lookout at 3:30.

On January 16th he was given a preliminary examination. He did not on that occasion, so far as we learn from the record, withdraw any part of the confessions implicating himself. But, in response to questions designed to develop the facts as he had already written them out, he answered:

"These two defendants and the rest of them are not guilty. They are innocent."

He was then questioned by the court thus:

"What is your idea here? You are not going to testify to anything? Is that the idea?"

He answered:

"Yes, sir. They are innocent."

On January 18th he stated to the superintendent of the penitentiary, who was making some investigation of the case:

"I didn't know anything about the robbery till dad came over to Ward's store and told me about it. I was in the basement at the time."

The trial began April 3d, and Gentry there testified as stated in the original opinion. He also testified that he had practically no acquaintance with appellants and that he had declared their innocence at the preliminary examination because afraid that they would kill him.

Upon this evidence, and it alone, the verdict must stand or fall. There has been some claim that an audit procured by the state, but introduced in evidence by the defense, is corroborative, as showing default in appellant's accounts with the state, and as furnishing a motive to abstract the box with supposed contents. The theory fails entirely. The audit shows on its face that there was no shortage. Theft remains the only apparent motive for the crime.

Ordinarily, when an eyewitness has testified to the crime and has identified the accused, an appellate court is powerless to interfere with a verdict of guilty. The rule is not varied by the fact that the witness was an accomplice. It is not varied by the fact that he stands impeached. It is not unusual for true confessions to follow false denials, nor for a participant in a crime to abandon an early determination to protect his associates. These are elements of weakness in evidence which must be passed upon by the triers of the facts.

But these are not the only infirmities here to be considered. Gentry's story in its final form is inherently improbable. It is most unlikely that appellants, contemplating this crime, would have taken a practical stranger into their confidence and service. Certainly, if his services had been indispensable, they would have approached him with more caution. It is unbelievable that these appellants or the guilty parties, whoever they may be, had the loot plainly visible in an automobile, twenty-four hours later, in front of the very courthouse from which they had stolen it. If, as Gentry says, appellants had gained admission to the office in the early evening and were leaving the door unlocked so that they could come and go, and planned to remove the box at 3:30, their insistence that the deputy sheriff be removed from the scene at 12:30, though constantly reiterated by Gentry as an important move in the game, is utterly without reason or explanation.

Counsel, analyzing the evidence much more closely than we can here indicate, impressively argue that Gentry has attempted to fit appellants into parts played by others; that he was indeed to play the part he says he played; that he was to take the deputy sheriff to lunch at midnight because the robbery was planned for that hour; that it was interrupted by events in the courthouse, and carried out at the later hour; and that, in attempting to change the characters in the plot and action, he has invented and introduced some facts plainly false and inconsistent with such part of his narration as is true.

It is not for us to adopt a theory of this crime. Our business is to determine whether there is substantial evidence that appellants are guilty of it. But we more readily apprehend the inherent improbability of Gentry's story as a whole, when we perceive that, with other characters in the parts assigned to appellants and omitting some embellishment, it would be credible. It is highly persuasive of an attempt to shield the guilty at the expense of the innocent.

The inherent improbability of Gentry's story we think turns the scales against its substantiality; its sufficiency to support the verdict. If it were consistent and had the ring or any stamp of truth, established principles of review might perhaps compel us to accept it, though it comes from the lips of a witness interested as someone's accomplice; interested in the result to himself and to others; actuated by fear of vengeance; a confessed perjurer; uncorroborated by word or circumstance. It taxes the detached judicial attitude to accept any testimony from such a source. But when the evidence itself is incredible, and in parts plainly fabricated, and, as a whole, convinces the mind that the truth is still suppressed, the point is reached, as it seems to us, where an appellate court should intervene. The verdict rests upon evidence which fails to meet any test of truth. We consider it unsubstantial. In thus holding we do not deviate from anything said in the original opinion or depart from any principle established by former decisions of this court.

[8] We have come slowly and late to this conclusion. On the former consideration of this case we were not impressed that it differed from the many others in which evidence has been held substantial. We were also confronted with the fact that at the trial there was no motion for a directed verdict or other challenge of the sufficiency of the evidence. Undoubtedly appellants thus lost the right to urge the contention here. But this court was not deprived of the power or relieved of the duty to prevent a plain miscarriage of justice. State v. Garcia (Rehearing) 19 N.M. 420, 143 P. 1012. Proper adherence to principle requires that the power be guardedly exercised and that the duty be performed only in a case where it is plainly presented. But we are not here dealing with "strictly legal, technical or unsubstantial claims." The right of an accused person to the presumption of innocence is fundamental; none more so. The preservation of that right is intrusted primarily to the jury. But it falls upon the judges, when convinced that, by convicting without substantial evidence, the jury has failed to perform its proper function.

The judgment will accordingly be reversed. The cause will be remanded, with direction to grant appellants a new trial. It is so ordered.

BICKLEY, C.J., and SADLER, J., concur.

PARKER and HUDSPETH, JJ., did not participate.