(specially concurring).
I agree with the result reached, and with respect to the issues delineated in the majority opinion, I wish to state my additional reasons for reversal.
A. The indictment was insufficient upon which to charge perjury.
In its entirety, Count IV read as follows:
[The grand jury of Santa Fe county, State of New Mexico, accuses the defendant of the following crime[s]:
COUNT IV
PERJURY, in that on or about the 4th day of December, 1976, the Defendant, EMILIO NARANJO, did make a false statement under oath or affirmation, material to the issue or matter involved in the course of a judicial proceeding to wit: Before a Judge and Jury in the case of State of New Mexico vs. Moisés Morales, the Defendant did testify that he saw Ruben Vigil take a paper bag from Moisés Morales’ truck, in that he gave specific answers to the following questions:
“Q. Did you see him find anything inside the truck?
A. Yes as I was holding the flashlight he was putting his hand under the driver’s side of the truck and he took out what appeared to me a grocery bag.
Q. You testified Sheriff before I left the court room that you saw him find the bag?
A. He pulled it from under the seat of the driver’s side of the truck.
Q. I am going to hand you what has been marked State’s Exhibit No. 1 and I ask you if you recognize the bag?
A. Yes sir I do.
Q. Would you please tell the Court and Jury where you recognize that bag from?
A. That is the bag that came in the group that Deputy Vigil had from under the truck on the driver’s side which is Morales’ pick-up.
Q. And then what did you do after that bag was pulled out?
A. He opened the bag and he put in the flashlight and the bag looked like it was marijuana appeared to be marijuana.”
said defendant knowing such statement to be untrue, contrary to Section 40A-25-1, N.M.S.A., 1953 Compilation, as amended [now § 30-25-1, N.M.S.A. 1978],
The narrative portion of the charge contained in its first paragraph accuses defendant of falsely testifying “that he saw Ruben Vigil take a paper bag from Moisés Morales’s truck.” The specific questions and answers which purportedly contain the false testimony include three questions and answers relating to the suspected contents of the bag. The inclusion of those last three questions and answers seems to enlarge the basic charge which accused defendant of falsely testifying that he saw Vigil take a paper bag from Morales’s truck, and to add that he also falsely testified that it appeared to contain marijuana.
The testimony quoted, however, even considered together with the first paragraph itself, does not satisfy the pleading requirements for an assignment of perjury first laid down in Territory v. Lockhart, 8 N.M. 523, 45 P. 1106 (1896). In that case the court established several rules, still the law in New Mexico, regarding the formulation of a charge of perjury. It is necessary, wrote Justice Bantz, that (1) the allegations be direct and specific, not in terms of uncertain meaning or by way of implication; (2) the indictment must particularize wherein the testimony was false, a general allegation of falsity being insufficient; and (3) if the offense encompasses many allegedly perjurious statements “of which some might be true and used only as the vehicle of falsity,” the defendant must be told in the indictment “wherein and to what extent the statements alleged to have been made by him were false.”
Under the Lockhart decision, the indictment in this case is fatally defective. Nowhere is it particularized what is the truth regarding the allegedly false statements. Is the truth that the bag was not a paper bag? That it was not a bag at all? That there was no bag? That it was not Morales’s truck? That defendant did not or could not see what was taken from the truck, or that there was nothing for him to see being taken from the truck? That Vigil did not do it, but that someone else did? Or that no one took anything from Morales’s truck?
Or is the charge expanded to imply that neither Vigil nor Naranjo looked into the bag? Or that the bag did not contain what appeared to be marijuana? Or that what appeared to be marijuana was not marijuana?
The ambiguity of the charge — without any allegation of what was false about defendant’s testimony — leads to endless speculation of the offense Naranjo was required to defend against. The statement of an indictment must contain the essential facts constituting the offense. Rule 5(d), N.M.R. Crim.Proc.1978.
I cannot concur with the majority’s assertion that defendant’s statement “was true.” His testimony that he observed Vigil remove a sack from Morales’s truck was uncontroverted, and it very well may have been true. We do not decide questions of fact, however, and I decline to join in that portion of the majority opinion. My conviction in the insufficiency of the indictment lies in its failure to particularize wherein Naranjo’s previous testimony was false.
One of defendant’s numerous motions for dismissal of the indictment for insufficiency, ambiguity, or variance should have been granted.
B. & C. The Attorney General was without authority to appoint a Special Assistant Attorney General to investigate charges and prosecute defendant.
I concur generally with the statements by the majority concerning the attorney general’s absence of power “to displace the district attorney” in this matter. See State v. Reese, 78 N.M. 241, 245, 430 P.2d 399 (1967). The court also said in Reese, at 245-46, 430 P.2d at 403, that “[t]here is nothing in our laws making the attorney general the superior of the district attorneys,” or “. remotely suggestpng] a right to supplant or take over from a district attorney who is performing his legal duties.”
As the majority opinion notes, a deputy district attorney thought the district attorney’s officer was disqualified. This does not sufficiently establish a “failure or refusal of [the] district attorney to act,” which would authorize the attorney general to step in and act on behalf of the state. But even giving the deputy district attorney’s beliefs the firmness of a refusal to act, there is no question that the attorney general affirmatively disqualified himself and his office, because of conflicts of interest and to avoid the appearance of impropriety, from participating in any phase of the proceedings against defendant. Having done so, the entire staff of the attorney general’s office was disqualified from participating, see State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.1974), and, lacking any common-law powers, the attorney general had only such statutory powers as are conferred by the legislature to appoint a successor prosecutor.
The attorney general is authorized under § 8-5-5, N.M.S.A.1978, to appoint assistant attorneys general. But the earlier disqualification of his office and its staff would also flow to a newly appointed staff member. Thus § 8-5-5 is unavailing. Section 8-5-4, however, permits the attorney general to employ “special legal assistance to protect the interest of the state,” provided he obtain “the consent and approval of the governor upon showing made by the attorney general that his department cannot for reasons stated perform such services.”
It seems to me that this is the only means by which a special prosecutor could have been named, had there been a valid disqualification by the district attorney as well as the attorney general. Its procedure was not followed either.
The appointment of the special prosecutor was invalid; his appearance before the grand jury contaminated its proceedings, State v. Hill, 88 N.M. 216, 539 P.2d 236 (Ct.App.1975); and his appearance as the trial prosecutor was unauthorized by constitution, statute, or common law. State v. Reese, supra.
D. Evidence of Morales’s acquittal was improperly admitted.
I agree with all that the majority has said on this issue. Additionally, I would point out that in State v. Jackson, 47 N.M. 415, 418, 143 P.2d 875 (1943), cited by the majority, our Supreme Court approved the ruling of a Massachusetts case bearing upon the prejudicial introduction of a verdict of acquittal of another defendant at the trial of the accused. The language sanctioned may be paraphrased to fit the facts of this case:
The record of the former trial of [Morales], if it had been properly offered [as it was], was inadmissable on the question of the guilt or innocence of the defendant [Naranjo], The guilt or innocence of [Morales] was not in issue.
I reiterate Justice Bickley’s comment upon the correctness of the Massachusetts decision: “. . [I]t is a poor rule that does not work both ways.”
E. There was no evidence to support a guilty verdict.
I wish only to emphasize the portions of the majority opinion which point out that there was a total lack of any questioning by the State or testimony from any of its witnesses regarding what defendant might or might not have seen on the night of November 4th. Defendant’s testimony, as set out in Count IV, was uncontradicted by anyone. A jury may not return a verdict which finds a defendant guilty of lying under oath about a material matter when there is no evidence that any of his testimony was false, for the simple reason that jurors must base their verdicts on evidence presented and the reasonable inferences to be drawn from such facts. But when there is a total absence of evidence — here, that either Naranjo did not see a sack removed from Morales’s truck, or that there was no marijuana in the sack — the reviewing court must set aside the conviction. State v. Torres, 78 N.M. 597, 435 P.2d 216 (Ct.App. 1967); State v. Salazar, 78 N.M. 329, 431 P.2d 62 (Ct.App.1967).
A criminal defendant need not prove his innocence; the State bears the burden of proving his guilt beyond reasonable doubt. See State v. Henderson, 81 N.M. 270, 466 P.2d 116 (Ct.App.1970). That burden requires presentation of evidence, and if the State produces none upon the charges alleged, defendant must be discharged. State v. Salazar, supra.
I agree that for all of the above reasons the conviction must be reversed and defendant discharged.