State v. Lucero
| Decision Date | 12 January 1915 |
| Docket Number | No. 1674.,1674. |
| Court | New Mexico Supreme Court |
| Parties | STATEv.LUCERO. |
OPINION TEXT STARTS HERE
Syllabus by the Court.
An indictment, based on the last clause of section 39, art. 4, of the state Constitution, which provides that any member of the Legislature who shall solicit from any person or corporation money, thing of value, or personal advantage, for his vote or influence as such member, shall be deemed guilty of solicitation of bribery, need not allege that the matter was pending in either House of the Legislature, as this portion of the section is designed to denominate as a crime the solicitation of money, thing of value, or personal advantage, by a member of the Legislature, as such, in return for the vote or influence of such member, upon any matter which he anticipates might be brought before the Legislature for consideration.
Where the meaning of an indictment, when read as a whole, is clear, and conveys to the defendant full information as to the charge which he is called upon to meet, and sets forth sufficient facts to enable him to plead a judgment rendered on such indictment in bar of a subsequent prosecution for the same offense, it will be held good on demurrer, notwithstanding the fact that it may be technically inaccurate. Held, that where the charging part of an indictment alleged that the Legislature had before it for consideration the election of two United States Senators, and that the accused solicited a bribe as a member of the Legislature, of a stated amount of money from one, naming him, in exchange for his vote and influence as such member, and that he then and there promised and agreed to vote, etc., as he might be directed by such party, etc., the indictment is sufficient to withstand a demurrer, as that portion of the charge following the words “then and there” was descriptive of the solicitation, and the indictment, when read as a whole, fully informed the accused of the exact charge which he was called upon to meet.
Section 15, c. 22, Sess. Laws 1909, prohibits any one except the district attorney, Attorney General, or their assistants, from assisting in the prosecution of criminal causes, except such associate counsel as may appear on order of the court, with the consent of the district attorney. Where the record shows that private counsel appeared with leave of court, and the district attorney not objecting, and that the district attorney was present and participated in the trial, it will be presumed that the appearance of private counsel was with the consent of the district attorney. Where the district attorney does not consent to the appearance of private counsel, he should object to such participation.
Appeal from District Court, Santa Fé County; E. C. Abbott, Judge.
José P. Lucero was convicted of solicitation of bribery, and appeals. Affirmed.
Where an indictment clearly states the charge and sets forth facts sufficient to enable defendant to plead a judgment thereon in bar, it is not demurrable, though technically inaccurate.
E. P. Davies, of Santa Fé, for appellant.
Ira L. Grimshaw, Asst. Atty. Gen., for the State.
Appellant was tried and convicted in the district court of Santa Fé county, on the first count of an indictment returned by the grand jury, which, omitting the formal parts, reads as follows:
“That José P. Lucero, * * * on the eighteenth day of March (1912), * * * then and there being a duly elected, qualified and acting member of the First State Legislature of the state of New Mexico, * * * and while the said First State Legislature was holding its first session under the provisions of the Constitution of the state of New Mexico, and then and there having before it, among other things, for its deliberation and consideration, the election of two Senators of the United States in Congress for the state of New Mexico, then and there, unlawfully, feloniously and corruptly did solicit, take and receive of and from one Elfego Baca five hundred dollars * * * for the vote and influence of him, the said José P. Lucero as a member of the First State Legislature, and the said José P. Lucero then and there promised and agreed to and with the said Elfego Baca to vote and use the influence of him, the said José P. Lucero, as a member of the said First State Legislature in the matter of the election of two Senators of the United States,” etc.
This count of the indictment was drawn under section 39 of article 4 of the state Constitution, which reads as follows:
“Any member of the Legislature who shall vote or use his influence for or against any matter pending in either House in consideration of any money, thing of value, or promise thereof, shall be deemed guilty of bribery; and any member of the Legislature or other person who shall directly or indirectly offer, give or promise any money, thing of value, privilege or personal advantage, to any member of the Legislature to influence him to vote or work for or against any matter pending in either House; or any member of the Legislature who shall solicit from any person or corporation any money, thing of value or personal advantage for his vote or influence as such member shall be deemed guilty of solicitation of bribery.”
It is apparent, from a reading of the indictment, and the constitutional provision under which it is drawn, that it is based upon the last clause of the section, which provides that:
“Any member of the Legislature who shall solicit from any person or corporation any money, thing of value or personal advantage for his vote or influence as such member shall be deemed guilty of solicitation of bribery.”
[1] Appellant contends that the indictment fails to charge facts sufficient to constitute an offense under the laws of the state, for two reasons: First, it is not alleged that the $500 was “solicited, taken, or received” by defendant for his vote or influence upon any matter or thing pending or in any manner before said Legislature for its consideration; and, second, that the indictment does not charge that the money was solicited in return for the vote of the legislator for two United States Senators. In other words, the indictment, after alleging that appellant solicited the sum of $500 from Elfego Baca for his vote and influence as a member of the Legislature, proceeds “and the said José P. Lucero, then and there promised and agreed, etc.” Appellant contends that the words “then and there” simply refer to the time and place, and do not connect up the solicitation with the words of the indictment which follow such words, describing what he agreed to do in consideration of such money so solicited.
As to the first ground of attack, we are of opinion that it is not necessary to allege that the matter was pending, or before the Legislature for its consideration. This is clearly apparent when the phraseology of the entire section is considered. Under the first clause of the section, the matter must be “pending” in “either House of the Legislature,” and of course an indictment framed under this portion of the section would be defective if it failed to allege such fact. And the same is true under the second clause, as the words “a matter pending in either House” are again employed. But under the last clause, under which this count of the indictment was framed, these words are omitted, and the crime is committed where a member of the Legislature solicits money, etc., “for his vote and influence as such member.” It is thus made evident that it was the intention to denominate as a crime every solicitation of money, thing of value, or personal advantage by a member of the Legislature, for his vote and influence as such member, on any matter or thing which the parties anticipated might come before the Legislature for consideration. In other words, it was the intention to make it a criminal offense for a legislator to ask for money or reward because of his official position, with the design or object of influencing his official action as to any matter that might be before the Legislature for consideration, or that might come before that body. It is a sweeping provision, having for its object the punishment of legislators who might solicit money in exchange for their vote or influence, upon any matter, either before the Legislature for consideration, or which might come before that body for action. A legislator is elected in November, and qualifies in January. Suppose he has reason to think that legislation in which B. might be interested will come before the Legislature for action. He goes to B. and solicits money or thing of value or personal advantage and offers to vote as B. might direct as to all matters which might affect B., or in which he was interested, or he agrees that he will...
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State v. Smith.
...reported. As to technical defects not prejudicing the defendant, or depriving him of the right to plead former jeopardy, see State v. Lucero, 20 N. M. 55, 146 P. 407. [3] Error is urged upon the overruling of appellant's motions for a directed verdict, made both at the close of the state's ......
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State v. Smith
...As to technical defects not prejudicing the defendant, or depriving him of the right to plead former jeopardy, see State v. Lucero, 20 N.M. 55, 146 P. 407. Error is urged upon the overruling of appellant's motions for a directed verdict, made both at the close of the state's case, and at th......
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State v. Archuleta
...because the identity of the proceeding can be shown by parol, if necessary. We recently examined this question in State v. Lucero, 20 N.M. 55, 146 P. 407, and again in State v. Herrera, 28 N.M. 155, 207 P. 1085. While these cases are not exactly like this one upon the facts, the principles ......
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State v. Archuleta
...because the identity of the proceeding can be shown by parol, if necessary. We recently examined this question in State v. Lucero, 20 N. M. 55, 146 Pac. 407, and again in State v. Herrera, 28 N. M. 155, 207 Pac. 1085. While these cases are not exactly like this one upon the facts, the princ......