State v. Ardovino, 5323
| Decision Date | 15 March 1951 |
| Docket Number | No. 5323,5323 |
| Citation | 55 N.M. 161,228 P.2d 947,1951 NMSC 18 |
| Parties | STATE v. ARDOVINO. |
| Court | New Mexico Supreme Court |
J. B. Newell, Las Cruces, for appellant.
Joe L. Martinez, Atty. Gen., W. R. Kegel, Asst. Atty. Gen., for appellee.
Upon a plea of not guilty a district court trial jury found the appellant guilty as charged in the information and he appeals from the judgment and sentence imposed upon him by the trial court. The information to which appellant pleaded not guilty, omitting the formal parts thereof reads: '* * * did unlawfully own, operate, possess, play and run games of chance, to-wit: roulette, dice, black jack--poker, and slot machines, contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of New Mexico.'
This information was undoubtedly attempted to be drawn under Sec. 41-2201, New Mexico Statutes 1941 Annotated, which provides in part: 'It shall hereafter be unlawful to play at, run, or operate any game or games, of chance such as * * * roulette, * * * poker, * * * black jack or any other game or games of chance played with dice, * * * slot machines, * * * for money or anything of value * * *.' (Emphasis ours.)
The appellant offered no evidence in the trial below. The state having rested its case, defense counsel moved the trial court for a directed verdict, and, among other reasons, stated in his motion that: 'The information does not allege an offense under the Statutes of the State of New Mexico.' After discussion between court and counsel, not of record, the trial court suggested that he would permit an amendment of the information to conform to the evidence, whereupon the prosecutor then moved that the information be amended so as to add thereto the allegation 'for money or anything of value,' (emphasis ours) which motion was resisted by defense counsel as being a motion to amend as to substance rather than form and as not being permitted by our statutes after the case had gone to trial. The amendment was permitted by the trial court, to which ruling exception was taken by defense counsel.
With reference to the allegations of the information involved in the case at bar, the identical situation was before this court in State v. Valdez, 51 N.M. 393, 185 P.2d 977, 978, and the unanimous opinion of this court was stated in the following language:
'* * * The omission is of matter of substance, and not a defect or imperfection in the matter of form only within the meaning of the statute. * * *
'The pleader, by omitting the allegation that the operation of such game was 'for money or anything of value' failed to charge them with any offense.'
In the case just cited this court remanded the case with direction to quash the information, notwithstanding the fact that appellants in the court below had been sentenced upon a plea of guilty. This court held that since the information charged no public offense their pleas of guilty 'confessed nothing.'
If a plea of guilty in State v. Valdez, supra, confessed nothing, then a plea of not guilty as interposed in the case at bar certainly raised no issue as to whether or not an offense had been committed for no offense was charged.
As to the amendment of the information suggested and permitted by the trial court over timely objection made by defense counsel, the brief of the Attorney General cites no cases supporting the action of the trial court, and our search does not satisfy us that the ruling of the trial court was not erroneous. Subsection (1) of Sec. 42-637, N.M. Statutes Annotated provides as follows: (Emphasis ours.)
It will be noted that the above provision of law or rule permits an amendment at any time only if the information originally charged an offense in accordance with the provisions of Sec. 42-607, N.M. Statutes 1941 Annotated, which section provides as follows:
'(1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being...
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