State v. Johnson
| Decision Date | 12 August 1955 |
| Docket Number | No. 5869,5869 |
| Citation | 60 N.M. 57,287 P.2d 247,1955 NMSC 70 |
| Parties | STATE of New Mexico, Appellee, v. L. H. JOHNSON, alias, Bill Johnson, Appellant. |
| Court | New Mexico Supreme Court |
Lewis C. Kimmel, Roswell, Lon P. Watkins, Carlsbad, on rehearing only, for appellant.
Richard H. Robinson, Atty. Gen., J. A. Smith and C. C. McCulloh, Asst. Attys. Gen., for appellee.
The initial opinion filed herein having heretofore been withdrawn by order of the Court, the following is substituted therefor.
Appellant was convicted by a jury in Eddy County of the crime of grand larceny and he appeals, asserting fundamental error. The information reads:
'C. N. Morris, Assistant District Attorney for Eddy County, New Mexico, accuses L. H. Johnson, alias Bill Johnson, of the crime of 'Grand Larceny', in that he did, on or about the 15th day of February, 1953, in Eddy County, New Mexico, steal from the Warehouse of the A & A Equipment Company, owned and operated by Mort B. Aldridge, Carlsbad, Eddy County, New Mexico, property of the said A & A Equipment Company, exceeding the value of $20.00, namely one Maytag Automatic Washing Machine, valued in excess of $300.00, contrary to Sec. 41-4502, NMSA, 1941 Comp.'
It is first contended that the information charges the crime of 'larceny from a warehouse', as defined by Sec. 40-45-6, 1953 Comp., and that the prosecution should have been for that offense, if at all. That the information is not skillfully drawn, is obvious; but, we are not impressed with the contention. Tested either by the common law or by statute, it sufficiently charges the crime of grand larceny. Stripped of surplusage, it charges that L. H. Johnson, in the County of Eddy, State of New Mexico, on or about the 15th day of February, 1953, did steal one Maytag Washing Machine of the value of $300, the property of A & A Equipment Company. The additional averment is surplusage and its effect, if any, was merely to place an additional burden upon the State in proving the case. The information uses the common law name of the offense, 'grand larceny'. It further particularizes the offense by referring to the section of the statute defining grand larceny, 'Sec. 41-4502, 1941 Comp.' Sec. 40-45-2, 1953 Comp.
In charging an offense, Sec. 41-6-7, 1953 Comp., provides:
'(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.
* * *
* * *
'(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.)
Compare Smith v. Abram, 58 N.M. 404, 271 P.2d 1010, where an incorrect section had been inserted in the information.
The offense was charged as having been committed on the 15th day of February, 1953. The information was filed January 4, 1954. Meanwhile, on June 12, 1935, Sec. 41-4502, 1941 Comp. was amended by substituting $50 in lieu of $20. The trial court instructed the jury that one of the material allegations of the information to be established by the evidence beyond a reasonable doubt, was that the offense occurred on February 18, 1953, or at some time within three years next preceding the date the information was filed. Clearly, there was a period from July 1, 1953 to January 4, 1954, that $20 could not have been made the basis of grand larceny. But the error was harmless. The evidence conclusively shows that the offense occurred prior to the effective date of the amendment. Moreover, the error was waived. The attention of the trial court was not called to the fact that it might be committing error, thus affording the court an opportunity to correct it. Section 21-2-1, 1953 Comp., Supreme Court Rule 20, subd. 1; Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231; State v. Knowles, 32 N.M. 189, 252 P. 987; State v. Layton, 32 N.M. 188, 252 P. 997; Blacklock v. Fox, 25 N.M. 391, 183 P. 402.
The alleged errors are made the basis of appellant's claim of fundamental error. While the doctrine of fundamental error has its place in our jurisprudence, obviously, it has no application here. Seuderi v. Moore, 59 N.M. 352, 284 P.2d 672; State v. Garcia, 19 N.M. 414, 143 P. 1012.
The judgment will be affirmed, and it is so ordered.
From the opinion written by Mr. Chief Justice Compton, in which all other members of the Court have concurred, I must dissent.
Mr. Chief Justice Compton has set out the information in full. The charge accuses the defendant
"of the crime of 'Grand Larceny', in that he did, on or about the 15th day of February, 1953, in Eddy County, New Mexico, steal from the Warehouse of the A & A Equipment Company, owned and operated by Mort B. Aldridge, Carlsbad, Eddy County, New Mexico, property of the said A & A Equipment Company, exceeding the value of $20.00, namely one Maytag Automatic Washing Machine valued in excess of $300.00, contrary to Section 41-4502, NMSA, 1941 Comp." (Emphasis supplied.)
The expression of my dissent follows closely the opinion previously filed and withdrawn.
The appellant is not represented in this Court by the Attorney who represented him at the trial of the case.
Defendant made no objection to the form of information. He made no objection to its substance; he did not call the attention of the Court to the fact that the general grand larceny statute is not the statute under which theft from a warehouse is to be prosecuted, and he did not call the attention of the Court to the fact that Section 41-4502 of the 1941 Compilation was not the applicable statute under which to prosecute for stealing from a warehouse.
The defendant, having been convicted under instructions given by the Court after both the State and the defendant had offered evidence and rested, now assigns error in the brief, as follows:
'That the Court erred in allowing the conviction under Sec. 41-4502, New Mexico Statutes Annotated, 1941 Compilation, in that if the facts prove the commission of the crime of larceny such crime is covered specifically by Section 41-4506 of the 1941 Compilation.'
There is no other assignment of error. If it be true that the defendant was charged with one offense, punishable under one statute, and that the case was submitted to the jury upon instructions which brought about a conviction under another statute, making it possible for the defendant to suffer greater punishment than under the first-mentioned statute, then the fundamental rights of the defendant were infringed upon; and in that case, it could not be said that defendant had a fair trial in the District Court.
The Legislature has enacted eight separate statutes dealing with larceny, and several other statutes dealing with obtaining money by false representation, and with bringing stolen property into the State from outside, and with buying and receiving and concealing stolen property. One of these statutes, Sec. 41-4502, 1941 Comp., reads:
'Grand Larceny--Value in excess of $20.00--Documents--Unnecessary to show value.--Every person who shall commit the crime of larceny, by stealing of the property of another any money, goods or chattels, or any bank note, bond, promissory note, bill of exchange, or other bill, order or certificate, or any books of accounts for or concerning money or goods, due or to become due, or to be delivered, or any deed of writing, containing the conveyance of land or any other valuable contract in force, or any writ, process or public record, if the property stolen shall exceed the value of twenty dollars ($20.00), shall be punished as provided in section 1529 (Sec. 41-4501).'
The punishment provided at the time the theft is alleged to have occurred in case the value of the property exceeds $20, is imprisonment in the penitentiary for any period not less than one year, nor more than ten years.
It must be presumed, I think, that the District Attorney had some knowledge of the proof of the offense alleged, so that in his information, he alleged
'the crime of 'Grand Larceny', in that he did, on or about the 15th day of February, 1953, in Eddy County, New Mexico, steal from the warehouse of the A. & A. Equipment Company, etc. * * *' (Emphasis supplied.)
The District Attorney evidently intended to prove larceny from a warehouse.
Section 41-4506, NMSA 1941 provides:
'Larceny from house or other building--Value above ten dollars--Penalty.--Every person who shall be convicted of stealing from a dwelling house, store, warehouse or other house, either in the day or night, any goods, chattels, money or property, which exceed the value of ten dollars ($10.00), shall be fined in a sum not less than ten dollars ($10.00) nor more than five hundred dollars ($500.00), or be imprisoned not less than one (1) month nor more than five (5) years, or both, at the discretion of the Court trying the cause.'
The use of the words, 'Grand Larceny', are not found in Section 41-4502, 1941 Comp., except in the heading. The words in the heading are no part of the statute, itself. The offense punishable under that section is, stealing the property of another when the value is in excess of $20. The statute is general in its character.
It is true, also, that our statutes do not use the words, 'Petit Larceny', at any place except in the words heading the sections.
Section 41-4502 has elements in it which are not found in Section 41-4506. One of these is that before the value of property stolen can come within the terms of the first statute, that property must exceed the value of $20. That is not true as to Section 41-4506, which affords punishment for larceny from a warehouse. The value of property stolen, in...
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