State v. Graves

• Decision Date: 07 October 1963
• Docket Number: No. 7006,7006
• Citation: 73 N.M. 79,385 P.2d 635,1963 NMSC 183
• Parties: The STATE of New Mexico, Plaintiff-Appellee, v. Roger L. GRAVES, Eddie Lee Crouch and Bennie True Whitley, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 635

385 P.2d 635

73 N.M. 79

The STATE of New Mexico, Plaintiff-Appellee, v. Roger L. GRAVES, Eddie Lee Crouch and Bennie True Whitley Defendants-Appellants.

No. 7006.

Supreme Court of New Mexico.

Oct. 7, 1963.

Dan B. Buzzard, Clovis, for appellants.

Earl E. Hartley, Atty. Gen., Oliver E. Payne, L. D. Harris, Asst. Attys. Gen., Santa Fe, for appellee.

CARMODY, Justice.

Appellants seek a reversal of their conviction of the crime of extraordinary burglary.

By reason of our determination of one of the issues raised by appellants, it is unnecessary to state the facts.

The three appellants Graves, Crouch and Whitley, hereafter referred to as defendants, were charged by separate informations, each of which consisted of four counts. The first count upon which the defendants were tried was a follows:

'COUNT ONE

'COMES NOW Patrick F. Hanagan, District Attorney in and for Chaves County, New Mexico, and accuses the Defendant, Roger L. Graves [Eddie Lee Crouch] [Bennie True Whitley], of the crime of extraordinary burglary, contrary to Section 40- 42-3 NMSA 1953 and alleges that the Defendant did, with intent to rob a safe, vault or money depository of money or other valuable things contained within a store or establishment, put in fear or intimidate or threaten with wrong a person in order to facilitate such robbery and that this did happen on or about the 20th day of January, 1961, in Chaves County, New Mexico.'

Identical motions were filed by each of the defendants, seeking a bill of particulars. Specifically, the defendants asked the following:

1. Where the robbery allegedly occurred;

2. The type of building where the alleged robbery took place;

3. The type of container from which the valuables were taken;

4. The amount of money allegedly taken;

5. The name of the persons allegedly intimidated or threatened;

6. The time of the alleged robbery.

The trial court denied the motions and, in so doing, we believe, committed error.

The rule with respect to bills of particulars, insofar as pertinent, being Sec. 41-6-8, N.M.S.A.1953, is:

'(1) When an indictment or information charges an offense in accordance with the provision of section 42-607 [41-6-7], but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or go give him such information as he is entitled to under the Constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the district attorney to furnish a bill of particulars containing such information as may be necessary for these purposes; or the district attorney may of his own motion furnish such bill of particulars.

'(2) When the court deems it to be in the interest of justice that facts not set out in the indictment or information or in any previous bill of particulars should be furnished to the defendant, it may order the district attorney to furnish a bill of particulars containing such facts. In determining whether such facts and, if so, what facts, should be so furnished, the court shall consider the whole record and the entire course of the proceedings against the defendant. * * *' The state seems to argue that, inasmuch as the allegations of the information contained more information than is actually required under the statute (Sec. 41-6-7, N.M.S.A.1953), the defendants therefore were not entitled to the additional information sought. It is true that the informations alleged more than was actually necessary to comply with the statute permitting 'short form' informations (Sec. 41-6-7, supra). However, the mere furnishing of more information than is necessary is not the problem before us; rather, it is a question of whether or not there were sufficient particulars of the offense alleged in order to enable the defendants to prepare a defense, or to which they were entitled under the New Mexico Constitution, art. II, Sec. 14. We are not here dealing with any claimed deficiency in the information itself--only with the problem of what information the defendants are entitled to if they request the same by proper motion.

We held in State v. Roy, 1936, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1, that a bill of particulars must state as much as may be necessary to give the defendant reasonable information as to the nature and character of the crime charged.

The fact that an information is valid under the constitution and statutes does not satisfy the requirement of the furnishing of a bill of particulars, if requested. In State v. Shroyer, 1945, 49 N.M. 196, 160 P.2d 444; Ex parte Kelley, 1953, 57 N.M. 161, 256 P.2d 211; State v. Roessler, 1954, 58 N.M. 102, 266 P.2d 351, and State v. Romero, 1961, 69 N.M. 187, 365 P.2d 58, attacks on the informations were rejected, but it was expressly noted that the defendants in each of those cases had failed to ask for a bill of particulars and that they had therefore waived the right to be furnished with additional information. Although it is certainly not intended that the district attorney be required to plead evidence, nor is it intended that informations as supplemented by bills of particulars be in the detail heretofore required before the adoption of the short form of information, still a defendant is entitled, if he properly asks for a bill of particulars, to sufficient information to enable him to prepare a defense.

Thus, it would appear to us that the information sought in points 1, 2, 3 and 5 were matters which, not being alleged in the information initially, should have been furnished to the defendants upon their request. We do not feel that items 4 and 6 need have been furnished, inasmuch as the amount of money allegedly taken was immaterial under the charge, and the time of the robbery had already been specified in the information. It was not necessary, in this instance, that the state go further than furnishing the date upon which the offense occurred, and this appears in the information itself. However, the state should have furnished the name of the store where the robbery allegedly occurred; what type of a store it was; whether a safe, vault, or some other type of money depository was involved; and the name of the person or persons allegedly intimidated or threatened. With respect to this last item, we realize that the second count of the informations gave the name of an individual allegedly assaulted, but the case was tried upon a single count of the information, and, although in some instances it might be otherwise, the particulars as to this count should have been furnished under the facts of this case.

Even though there are authorities from other jurisdictions which seemingly hold that the denial of a motion for a bill of particulars is a matter within the discretion of the trial court, and this was the rule at common law (see Anno. 5 A.L.R.2d 444), our rule would seem to make it mandatory that certain basic information, not evidence, be furnished.

The record before us consists of the proceedings commencing with the filing of the information, and does not disclose anything that occurred prior to that time. Thus, insofar as we can determine from the record, there was nothing more than this before the court which might bring into play the last sentence of Sec. 41-6-8(2), N.M.S.A. 1953. Neither can we consider in retrospect whether any actual prejudice resulted in the trial by reason of the failure to furnish the requested information to the defendants. We must view the proceedings as they were at the time of the hearing of the motion for a bill of particulars, and at least at that time the motion should have been granted as to the items above mentioned. The failure of the trial court to grant the motion is, as we said, error, and requires a reversal of the cause.

There are other matters raised in the appeal which we do not reach by reason of our disposition of the error as to the bill of particulars. However, because of the fact that the case must be reversed and a new trial granted, we deem it...