OPINION OF THE COURT
WATSON, J.
Carrie Adair Armijo, Luis Martinez, and Roy Gentry were jointly indicted for conspiracy to burglarize the Bernalillo county courthouse, and to steal therefrom a box containing $1,300 in money, both box and money the property of the state. They were also jointly indicted for larceny of said box and money. By agreement of the parties and by order of the court, the two causes were “consolidated for the purposes of trial.” Gentry pleaded guilty and testified against the two others. The trial of Armijo and Martinez resulted in acquittal of larceny and conviction of conspiracy. From the judgment rendered on the latter verdict they have appealed.
Luis Martinez was in charge of the distribution of automobile license plates in Bernalillo county and of the collection of the moneys paid therefor. Mrs. Armijo was his assistant. The business was carried on in the office of the county treasurer in the courthouse. The moneys stolen were the proceeds of such collections and the box was the receptacle for such moneys.
The convicting evidence was the testimony of Gentry. He was the son of the courthouse janitor. He assisted his father in his work and carried the keys to the treasurer’s office. He testified that on several occasions he had let appellants in to the treasurer’s office when it was closed; that at 1 • o’clock in the afternoon preceding the robbery he met Martinez in a corridor of the courthouse; that Martinez inquired if he wanted to make $100 and, on the witness’ reply that he did, said that he wanted to get into the treasurer’s office, that he was going to make a clean-up, that he was going to take the strong box out; that a little after 9 that evening the witness let appellants into the treasurer’s office; that he found them waiting for him in the corridor; that they then told him they were going to carry the box out at 3:30; that they were going to push the safety latch on the door so that they could go in and out as they pleased; that they wanted the witness to take the deputy sheriff (who would be in an office across the hall from the treasurer’s office) to lunch at midnight, and to watch on the outside at 3:30 in the morning, and to let them know if anybody came up, and that the witness was to call them by telephone at 11:30 at the treasurer’s office; that he called them at 11:30 and received the same instructions as before; that at 3:30 in the morning he was watching on the outside of the courthouse, and saw the box carried out by appellant Martinez and another man, Mrs. Armijo being with them but not-helping to carry the box; that the three went to the rear of the courthouse; that he heard a car start Up out there and then went to bed; that about 1 o’clock the next day he met Martinez in the corridor and asked him about the $100; that Martinez told him not to worry about “that hundred”, and that if he mentioned anything about it he would kill him; that about 12 o’clock that night he saw a car containing Martinez and Mrs. Armijo; that he stopped them and asked them about the hundred dollars; that they told him not to worry about the hundred dollars, to let it go for a couple of months until everything should be quiet, and if he mentioned anything they would kill him; that at this time he saw the strong box in the rear of the car; and that appellants told him they were going to Santa Fe.
Appellants argue the insufficiency of the evidence from two viewpoints. They contend: First, that the evidence is insufficient to support conviction for either crime with which appellants were charged. Second, that even if it is sufficient to support a conviction of either or both charges, it is insufficient to support a conviction of conspiracy in view of the acquittal of larceny.
Appellants do not question that the testimony above recited, if believed, is conclusive of guilt of both offenses. Their point is that it is not worthy of belief. Gentry was an accessory. His story in the light of circumstances existing is not very convincing. He made two so-called confessions. Then at the preliminary hearing he repudiated both and declared that appellants were innocent. Cross-examination at the trial and the various versions he gave cast great doubt upon his veracity and upon the truth of his testimony. But these matters do not legally affect its substantial character. It was for the jury to weigh it and decide the question. The uncorroborated testimony of an accomplice will sustain a conviction though the witness was discredited by having a criminal record. State v. Kidd, 34 N. M. 84, 278 P. 214. Whether a witness has been so impeached as to render his testimony unworthy of belief is a question for the jury. Las Cruces Motor Co. v. Conover, 35 N. M. 15, 288 P. 1065. We •are unable, therefore, to sustain appellants in their first contention.
The second contention is more troublesome. Their proposition is that if Gentry told the truth appellants were guilty of larceny; that the jury found them not guilty of this offense, and hence found that Gentry did not tell the truth; and that if Gentry did not tell the truth, there is no substantial evidence that appellants were guilty of conspiracy.. As a criticism of the combined results of the two verdicts, the argument has considerable force. Is it such an argument as a court of review may properly entertain ?
It is contended that the two verdicts are utterly inconsistent; that the acquittal of larceny nullifies the conviction of conspiracy so that judgment upon the latter should have been arrested, or at least that the two verdicts nullify each other so that mistrial should be held to have resulted.
There is no inherent inconsistency in the verdicts resulting from the nature of the offenses. It is quite possible for appellants to have conspired to commit, without having committed, the larceny. So such cases as State v. Headrick, 179 Mo. 300, 78 S. W. 630 and State v. Akers, 278 Mo. 368, 213 S. W. 424, if in accord with sound principle, are not here in point. Nor are former jeopardy cases such as In re Resler, 115 Neb. 335, 212 N. W. 765, and Davis v. People, 22 Colo. 1, 43 P. 122, in point.
The claimed inconsistency is based upon the testimony in the particular case; it being contended that reasonable minds could not so view such testimony as to reach the two conclusions which the jury arrived at. Assuming that to be logically true, the question remains whether, in reviewing the conspiracy verdict for sufficiency of the evidence, we are at all concerned, or may properly concern ourselves, with the acquittal of larceny.
There is conflict of authority upon the question, and this conflict is particularly pronounced in the federal courts. Appellants cite and rely upon Rosenthal v. U. S. (C. C. A.) 276 F. 714; Hohenadel Brewing Co. v. U. S. (C. C. A.) 295 F. 489; Peru v. United States (C. C. A.) 4 F. (2d) 881; Murphy v. United States (C. C. A.) 18 F. (2d) 509, 511; Boyle v. United States (C. C. A.) 22 F. (2d) 547, 548; and Speiller v. United States (C. C. A.) 31 F. (2d) 682, decisions emanating from the third, eighth and ninth circuits. The result of these decisions is that where two or more verdicts are rendered in a case the courts will not sustain the convicting verdict unless able, from the evidence, to reconcile it with the acquitting verdict.
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OPINION OF THE COURT
WATSON, J.
Carrie Adair Armijo, Luis Martinez, and Roy Gentry were jointly indicted for conspiracy to burglarize the Bernalillo county courthouse, and to steal therefrom a box containing $1,300 in money, both box and money the property of the state. They were also jointly indicted for larceny of said box and money. By agreement of the parties and by order of the court, the two causes were “consolidated for the purposes of trial.” Gentry pleaded guilty and testified against the two others. The trial of Armijo and Martinez resulted in acquittal of larceny and conviction of conspiracy. From the judgment rendered on the latter verdict they have appealed.
Luis Martinez was in charge of the distribution of automobile license plates in Bernalillo county and of the collection of the moneys paid therefor. Mrs. Armijo was his assistant. The business was carried on in the office of the county treasurer in the courthouse. The moneys stolen were the proceeds of such collections and the box was the receptacle for such moneys.
The convicting evidence was the testimony of Gentry. He was the son of the courthouse janitor. He assisted his father in his work and carried the keys to the treasurer’s office. He testified that on several occasions he had let appellants in to the treasurer’s office when it was closed; that at 1 • o’clock in the afternoon preceding the robbery he met Martinez in a corridor of the courthouse; that Martinez inquired if he wanted to make $100 and, on the witness’ reply that he did, said that he wanted to get into the treasurer’s office, that he was going to make a clean-up, that he was going to take the strong box out; that a little after 9 that evening the witness let appellants into the treasurer’s office; that he found them waiting for him in the corridor; that they then told him they were going to carry the box out at 3:30; that they were going to push the safety latch on the door so that they could go in and out as they pleased; that they wanted the witness to take the deputy sheriff (who would be in an office across the hall from the treasurer’s office) to lunch at midnight, and to watch on the outside at 3:30 in the morning, and to let them know if anybody came up, and that the witness was to call them by telephone at 11:30 at the treasurer’s office; that he called them at 11:30 and received the same instructions as before; that at 3:30 in the morning he was watching on the outside of the courthouse, and saw the box carried out by appellant Martinez and another man, Mrs. Armijo being with them but not-helping to carry the box; that the three went to the rear of the courthouse; that he heard a car start Up out there and then went to bed; that about 1 o’clock the next day he met Martinez in the corridor and asked him about the $100; that Martinez told him not to worry about “that hundred”, and that if he mentioned anything about it he would kill him; that about 12 o’clock that night he saw a car containing Martinez and Mrs. Armijo; that he stopped them and asked them about the hundred dollars; that they told him not to worry about the hundred dollars, to let it go for a couple of months until everything should be quiet, and if he mentioned anything they would kill him; that at this time he saw the strong box in the rear of the car; and that appellants told him they were going to Santa Fe.
Appellants argue the insufficiency of the evidence from two viewpoints. They contend: First, that the evidence is insufficient to support conviction for either crime with which appellants were charged. Second, that even if it is sufficient to support a conviction of either or both charges, it is insufficient to support a conviction of conspiracy in view of the acquittal of larceny.
Appellants do not question that the testimony above recited, if believed, is conclusive of guilt of both offenses. Their point is that it is not worthy of belief. Gentry was an accessory. His story in the light of circumstances existing is not very convincing. He made two so-called confessions. Then at the preliminary hearing he repudiated both and declared that appellants were innocent. Cross-examination at the trial and the various versions he gave cast great doubt upon his veracity and upon the truth of his testimony. But these matters do not legally affect its substantial character. It was for the jury to weigh it and decide the question. The uncorroborated testimony of an accomplice will sustain a conviction though the witness was discredited by having a criminal record. State v. Kidd, 34 N. M. 84, 278 P. 214. Whether a witness has been so impeached as to render his testimony unworthy of belief is a question for the jury. Las Cruces Motor Co. v. Conover, 35 N. M. 15, 288 P. 1065. We •are unable, therefore, to sustain appellants in their first contention.
The second contention is more troublesome. Their proposition is that if Gentry told the truth appellants were guilty of larceny; that the jury found them not guilty of this offense, and hence found that Gentry did not tell the truth; and that if Gentry did not tell the truth, there is no substantial evidence that appellants were guilty of conspiracy.. As a criticism of the combined results of the two verdicts, the argument has considerable force. Is it such an argument as a court of review may properly entertain ?
It is contended that the two verdicts are utterly inconsistent; that the acquittal of larceny nullifies the conviction of conspiracy so that judgment upon the latter should have been arrested, or at least that the two verdicts nullify each other so that mistrial should be held to have resulted.
There is no inherent inconsistency in the verdicts resulting from the nature of the offenses. It is quite possible for appellants to have conspired to commit, without having committed, the larceny. So such cases as State v. Headrick, 179 Mo. 300, 78 S. W. 630 and State v. Akers, 278 Mo. 368, 213 S. W. 424, if in accord with sound principle, are not here in point. Nor are former jeopardy cases such as In re Resler, 115 Neb. 335, 212 N. W. 765, and Davis v. People, 22 Colo. 1, 43 P. 122, in point.
The claimed inconsistency is based upon the testimony in the particular case; it being contended that reasonable minds could not so view such testimony as to reach the two conclusions which the jury arrived at. Assuming that to be logically true, the question remains whether, in reviewing the conspiracy verdict for sufficiency of the evidence, we are at all concerned, or may properly concern ourselves, with the acquittal of larceny.
There is conflict of authority upon the question, and this conflict is particularly pronounced in the federal courts. Appellants cite and rely upon Rosenthal v. U. S. (C. C. A.) 276 F. 714; Hohenadel Brewing Co. v. U. S. (C. C. A.) 295 F. 489; Peru v. United States (C. C. A.) 4 F. (2d) 881; Murphy v. United States (C. C. A.) 18 F. (2d) 509, 511; Boyle v. United States (C. C. A.) 22 F. (2d) 547, 548; and Speiller v. United States (C. C. A.) 31 F. (2d) 682, decisions emanating from the third, eighth and ninth circuits. The result of these decisions is that where two or more verdicts are rendered in a case the courts will not sustain the convicting verdict unless able, from the evidence, to reconcile it with the acquitting verdict. In the Peru Case a conviction of maintaining a nuisance was set aside when there was no evidence to support it except certain sales and possessions specified in other counts of the indictment upon which there had been acquittals. Such also was the decision in the Murphy Case. Judge Van Valkenburgh, writing the opinion, notices the conflict in authority and mentions the decisions from the second, sixth, and seventh circuits. He summarizes the contrary view as follows:
“This conclusion is based upon the view that ‘it is within the power of the jury, though not within its right, to acquit an accused in defiance of law and reason, and however plain his guilt,’ and upon the further consideration generally recognized, where justified by the facts and the nature of the offense charged, that ‘a verdict that is apparently inconsistent affords no basis for a reversal of a judgment predicated thereon, when the evidence is sufficient to support either of two separate offenses’.”
In the Boyle Case, Judge Booth, writing the opinion, thus distinguishes the conflicting holdings:
“On the one hand * * * where a jury convicts upon one count and acquits upon another, the conviction will stand, though there is no rational way to reconcile the two conflicting conclusions. * * * On the other hand, * * * the conviction will not be allowed to stand, unless the verdict of conviction is supported by evidence other than the facts pleaded in support of the counts upon which acquittal has been had.”
State decisions cited by appellants and lending some support to their contention are Smith v. State, 38 Ga. App. 366, 143 S. E. 925, and People v. Haupt, 221 App. Div. 485, 224 N. Y. S. 163. The holding in the latter case'was disapproved, however, by the Court of Appeals. People v. Haupt, 247 N. Y. 369, 160 N. E. 643. Some others are to be found.
But, opposed to their contention, we find a number of state decisions. State v. Daly, 77 Mont. 387, 250 P. 976; State v. Stewart, 120 Kan. 516, 243 P. 1057; Sihick v. State, 89 Ind. App. 132, 166 N. E. 14; State v. Ridge (Mo. App.) 275 S. W. 59; Browning v. State, 120 Ohio St. 62, 165 N. E. 566; Commonwealth v. Donato, 87 Pa. Super. Ct. 285; State v. Brown, 198 N. C. 41, 150 S. E. 635.
Our research has perhaps not been exhaustive, but we are impressed that these decisions, with those of the second, sixth, and seventh circuits referred to above, constitute a weight of authority.
Moreover, it is not easy in this jurisdiction, where so much weight is given to a verdict rendered upon proper evidence and correct instructions, to adopt the doctrine urged by appellants. To do so would be to yield general principles of long recognition. As triers of facts, we might give great weight to appellants’ present contention. But, reviewing for errors of law, we may not say that the Gentry story must be accepted or rejected in toto. Some parts were perhaps less improbable than others. Nor is it possible for us to say what parts of it, if any, the jury has rejected. It is our business to review the verdict of conviction. The verdict of acquittal is beyond our control. For it the jury is answerable only to conscience. It is entirely practicable to determine whether the conviction is supported by substantial evidence. We can only speculate as to the reason for the verdict of acquittal. The’two verdicts not being inconsistent in law, that they are inconsistent in fact could be determined only by going farther in analysis of the evidence, and in weighing it, than we are accustomed to go. As pointed out in State v. Akers, 278 Mo. 368, 213 S. W. 424, a rule should work both ways. There is no more reason for holding, as that court had previously held, that an inconsistency destroys the verdict of conviction, than for holding'that it destroys the verdict of acquittal. The Missouri Supreme Court in that case considered that the situation called for a new trial. We do not think so. The one verdict standing alone is good. It should not be overcome by another verdict over which we have no control, cannot appraise, and which may have been actuated by any one of a dozen reasons which, if fathomed, would not detract from the former. In State v. Ridge, supra, a Missouri Court of Appeals seems to have accepted this result. Should we here conclude otherwise, verdicts of guilty, however convincing the evidence, must hereafter yield to contemporaneous verdicts of acquittal, however irrational.
It has been deemed best in this case to dispose of these contentions on their merits. But there is another ground upon which the judgment must be sustained. The trial court expressly charged the jury that it might find either or both of appellants guilty or not guilty of larceny, and might find them both either guilty or not guilty of conspiracy. These instructions were not challenged in any manner. They are the law of the case. State v. Wallis, 34 N. M. 454, 283 P. 906. The verdicts rendered are within the instructions and the law of the case. If inconsistent, they are not legally erroneous, and if erroneous, the error was invited by appellants’ acquiescence in the law as stated by the court.
Appellants recognize that they are confronted with this obstacle, but they invoke the inherent power of this court to correct fundamental error and to prevent a miscarriage of justice. State v. Garcia, 19 N. M. 414, 143 P. 1012. They excuse their failure to ask for instructions by claiming that it was then inconceivable that two such verdicts should be arrived at, as it is now incomprehensible how they were arrived at. If it be true that the evidence in the case would not admit of the two verdicts which have actually been rendered, it was as apparent at the close of the case as it is now, and it was the duty of counsel to point out to the court the error into which it was falling. We may accept counsel’s explanation of the failure without admitting its sufficiency. They are in the situation of having speculated upon the verdicts. If we were at liberty to speculate concerning them, we might consider whether under different instructions there would not have been a conviction of the larceny. It may well be that this jury, under all the circumstances, considered that one punishment would meet the ends of justice. While this was not what the law required of the jury, it is what the law has no means of preventing. Appellants have acquiesced in the instructions. They cannot now complain of the result. Manifestly the situation is not one which calls for the exercise of this court’s inherent power as defined and limited in State v. Garcia, supra.
It is urged that
“several occurrences during the trial were of such a nature that even if not individually sufficient or so presented in the record as to constitute reversible error, yet collectively constitute such a serious infringement on the defendants’ rights, as to require a new trial in the interest of justice.”
But we find no merit in the contention.
The point is submitted that the court erred in overruling a demurrer. We deem it abandoned for failure to argue. Some general principles are stated upon authority. But it is not indicated that they have any bearing upon the present indictment.
The judgment must be affirmed. It is so ordered.
BICKLEY, C. J., and SADLER, J., concur.
PARKER and HUDSPETH, JJ., did not participate.