State v. Lucero, No. 117
| Docket Nº | No. 117 |
| Citation | 440 P.2d 806, 79 N.M. 131, 1968 NMCA 21 |
| Case Date | April 19, 1968 |
| Court | Court of Appeals of New Mexico |
Page 806
v.
Gilbert LUCERO, Defendant-Appellant.
[79 N.M. 132]
Page 807
Robert M. St. John, Albuquerque, for appellant.Boston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Santa Fe, for appellee.
WOOD, Judge.
Convicted of burglary, defendant appeals. He contends the grand jury indictment (1) erroneously stated the place of the offense and (2) erroneously named the owner of the residence which was burglarized. On this basis defendant asserts the indictment was fatally defective.
The indictment charged defendant with burglary contrary to § 40A--16--3, N.M.S.A.1953. Under § 41--6--7, N.M.S.A.1953, an indictment is valid and sufficient if it identifies the crime charged by reference to the statute establishing the offense. State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963).
In addition to charging the offense, the indictment stated the place of the offense and named the owner of the property. Defendant concedes that these allegations were unnecessary. See §§ 41--6--12 and 41--6--15, N.M.S.A.1953.
Surplusage.
It being conceded that the allegations as to place and ownership were unnecessary, § 41--6--36, N.M.S.A.1953 is applicable. This section provides that unnecessary allegations of an indictment may be disregarded as surplusage.
Place of the Offense.
The indictment charged an offense under § 41--6--7, N.M.S.A.1953. Accordingly, the indictment is not to be held invalid or insufficient because of a 'miswriting' or similar defect. Rather, the indictment may be amended in respect to such defect. If defendant is prejudiced by any such defect[79 N.M. 133]
Page 808
the court may postpone the trial. No appeal 'based on any such defect' is to be sustained 'unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits.' Section 41--6--37, N.M.S.A.1953.The indictment stated the burglarized residence was 2211 Indian School Road. Asserting there was a typing error, the State moved to amend and show the address as 2311 Indian School Road. The motion was granted.
After the amendment the place of the offense was correctly stated. Defendant did not ask for a postponement and has not shown that he was prejudiced by the amendment correcting the typing error. His contention concerning the place of the offense is without merit. See State v. Peke, 70 N.M. 108, 371...
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State v. McCoy, Nos. 13575
...See SCRA 1986, 5-205(A)(3) (Repl.1992) (means by which offense was committed is generally an unnecessary allegation); State v. Lucero, 79 N.M. 131, 132, 440 P.2d 806, 807 (Ct.App.1968) (unnecessary allegation may be disregarded as surplusage). Accordingly, we believe the criminal informatio......
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State v. Turner, No. 360
...P.2d 398 (1964); State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963); State v. Cummings, 63 N.M. 337, 319 P.2d 946 (1957); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968). In State v. Lott, supra, the Supreme Court considering the effect of this statute, said: 'The purpose of a crimina......
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State v. Johnson, No. 8904
...We agree. See State v. Trujillo, 91 N.M. 641, 578 P.2d 342 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968). Defendant does not contend that he was misled into thinking that other vehicles were involved, nor does defendant a......
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State v. Parker, No. 282
...prejudiced by the amendment as claimed under his fifth point. Compare State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962); State v. Lucero, 79 N.M. 131, 440 P.2d 806 Under Points VI and VII, defendant claims error on the part of the trial court in failing to give his requested instructions numb......
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State v. McCoy, Nos. 13575
...See SCRA 1986, 5-205(A)(3) (Repl.1992) (means by which offense was committed is generally an unnecessary allegation); State v. Lucero, 79 N.M. 131, 132, 440 P.2d 806, 807 (Ct.App.1968) (unnecessary allegation may be disregarded as surplusage). Accordingly, we believe the criminal informatio......
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State v. Turner, No. 360
...P.2d 398 (1964); State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963); State v. Cummings, 63 N.M. 337, 319 P.2d 946 (1957); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968). In State v. Lott, supra, the Supreme Court considering the effect of this statute, said: 'The purpose of a crimina......
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State v. Ancira, A-1-CA-38173
...corrected a typographical error in the address where the trespass occurred. The State relies on State v. Lucero , 1968-NMCA-021, ¶¶ 6-7, 79 N.M. 131, 440 P.2d 806, where a change in the address given was held to be the correction of an error that did not prejudice the defendant, and was the......
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State v. Johnson, No. 8904
...We agree. See State v. Trujillo, 91 N.M. 641, 578 P.2d 342 (Ct.App.), cert. denied, 91 N.M. 751, 580 P.2d 972 (1978); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968). Defendant does not contend that he was misled into thinking that other vehicles were involved, nor does defendant a......