Ex parte Williams

• Decision Date: 08 January 1954
• Docket Number: No. 5713,5713
• Citation: 58 N.M. 37,1954 NMSC 5,265 P.2d 359
• Parties: Ex parte WILLIAMS. WILLIAMS v. McADOO, Sheriff.
• Court: New Mexico Supreme Court

Page 359

265 P.2d 359

58 N.M. 37

Ex parte WILLIAMS.

WILLIAMS v. McADOO, Sheriff.

No. 5713.

Supreme Court of New Mexico.

Jan. 8, 1954.

Robert W. Ward, Lovington, C. M. Neal, Hobbs, for relator.

Richard H. Robinson, Atty. Gen., W. F. Kitts, Special Asst. Atty. Gen., Fred M. Standley, Asst. Atty. Gen., for respondent.

COMPTON, Justice.

This is an original proceeding in habeas corpus instituted on relation of Jesse Williams, seeking discharge from the custody of respondent, J. G. McAdoo, sheriff of Lea County.

An information was filed in Lea County against relator, the pertinent provisions of which read:

'Jesse Williams did wilfully, deliberately and premeditatedly kill Johnnie Lee Boyd by shooting her with a gun, contrary to Section 41-2404, New Mexico Statutes Annotated, 1941 Compilation, and that this happened in Lea County, New Mexico, on or about the 24th day of March, 1953.'

A plea of not guilty was entered. A jury was impaneled and sworn to try the issues presented and evidence was given. After the state rested, relator moved the court to withdraw from the consideration of the jury the charge of murder for the reason murder was not charged. The motion was sustained, after which, relator further moved for an instructed verdict as to the charge of manslaughter because of the insufficiency of the evidence to support a verdict. This motion was overruled. At this point a recess was granted relator for the purpose of determining whether he would offer any evidence. When court reconvened, the district attorney moved for a dismissal of the information on the ground that it failed to charge an offense. The motion was sustained and the cause dismissed over the strenuous objection of relator. Subsequently, an information was filed against relator charging him with the murder of Johnnie Lee Boyd. He was remanded to the custody of the sheriff of Lea County, where he is now detained without bail. To the latter information, relator interposed a plea of former jeopardy and autrefois acquit. The plea was overruled and he is here asserting constitutional grounds for his discharge.

Since the trial court decided that the first information did not charge murder, that became the law of the case. Right or wrong, it must control our further consideration of the question presented. Marchant v. McDonald, 37 N.M. 171, 20 P.2d 276. Even if wrong, the relator cannot complain since the trial court's ruling alone affords him the jeopardy relied upon to secure his discharge. The decisive question, therefore, is whether an unlawful killing was charged. If manslaughter was charged, relator was put in jeopardy and he should be discharged; if not, the writ should be dismissed.

The object of an indictment or information is first to furnish an accused with a description of the charge against him as will enable him to make his defense and to avail himself of his conviction or acquittal against a subsequent prosecution for the same offense; and second, that the court may be informed as to the facts alleged so it may determine whether the facts are sufficient to support a conviction, if one should be had. State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1.

The charge meets the test prescribed by Sec. 42-607, New Mexico Statutes Annotated, which reads:

'Charging the offense.--(1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one (1) or more of the following ways:

'(a) By using the name given to the offense by the common law or by a statute.

'(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

'(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference.' (Emphasis ours.)

The information itself is replete with words and terms which leaves no doubt that an unlawful killing was charged. The word 'charge' denotes a wrongful act, subjecting the person charged to criminal prosecution in the name of the state. As used in our criminal pleadings, the words 'charge' and 'accuse' are used interchangeably, and are synonymous. Sec. 42-606 and Sec. 42-607, New Mexico Statutes Annotated. The term 'shooting her with a gun, contrary to Sec. 41-2404'; also the words, 'wilfully', 'premeditately' and 'deliberately' are used. The word 'wilfully' means 'without lawful excuse.' Miller v. State, 3 Okl.Cr. 575, 107 P. 948. The words 'deliberately' and 'premeditately' as employed in the information, import and intentional killing without lawful excuse. Finally, reference is made to the specific statute, Sec. 41-2404, defining the crime of murder, manslaughter being an included offense. And in determining the validity or sufficiency of an indictment of information regard shall be had to such reference. Sec. 42-607(2), rules of criminal procedure. See Brannan v. State, 44 Tex.Cr.R. 399, 72 S.W. 184; Utterback v. State, 153 Ind. 545, 55 N.E. 420; People v. Frey, 112 Mich. 251, 70 N.W. 548.

That the trial court shared the view reached by us is apparent. We quote:

'Mr. Neal: Comes now the defendant and moves the Court to withdraw from the consideration of the jury in this case the charge of murder in the first and second degree by reason of the fact that the Information in this case is wholly insufficient to charge the crime of murder. If the Court please, I would like to discuss that motion. (Argument follows.)

'The Court: What do you say, Mr. District Attorney?

'Mr. Hanagan: If the Court please, I have to ask for a few minutes to look into that. (Argument follows.)

'The Court: I will grant the motion.

'Mr. Neal: At this time, if the Court please, the defendant moves for an instructed verdict of not guilty as to the crime of manslaughter by reason of the fact that the evidence at this stage of the case was not sufficient to sustain a conviction of manslaughter, there being no evidence...