State v. Lucero., 4811.
| Decision Date | 30 June 1944 |
| Docket Number | No. 4811.,4811. |
| Citation | 150 P.2d 119,48 N.M. 294 |
| Parties | STATEv.LUCERO. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, San Miguel County; James B. McGhee, Judge.
Ruben Lucero was convicted for making false entries in poll books used in the primary election and in permitting fraudulent voting, and he appeals.
Reversed, and prisoner remanded to custody of the sheriff.
Where Legislature in 1938 special session enacted section 56-827 relating to penalties for violations of primary election law, and later in same session enacted section 56-524, which made the 1927 Election Code applicable to primary elections, section 56-524 in effect modified section 56-827 so that it would apply only to willful neglect of duty or corrupt conduct by a judge, clerk or other officer or person on whom any duty is enjoined by the primary election law, and not specifically punishable by some other statutes. 1941 Comp. §§ 56-524, 56-827.
Thomas V. Truder, of Las Vegas, for appellant.
Edward P. Chase, Atty. Gen., and Clyde C. McCulloh, First Asst. Atty. Gen., for appellee.
Appellant (defendant) was tried and convicted on an information containing three counts; the first and third thereof charging the making of false entries in the poll books used in the primary election held in San Miguel County in 1942. The penalty for this offense as defined in 1941 Comp.Sec. 56-508 is imprisonment in the state penitentiary for not less than one year nor more than five years. The second count charged that the defendant being an election official permitted fraudulent voting. This offense is described in 1941 Comp. Sec. 56-519, and the penalty therefor is a fine of not less than one hundred dollars nor more than five hundred dollars or imprisonment for not less than sixty days nor more than six months, or by both such fine and imprisonment. This offense is a misdemeanor, whereas the others charged were felonies. 1941 Comp.Secs. 41-103, 41-104.
The verdict of the jury stated that the defendant was guilty on each of the three counts.
The sentence of the court was that the defendant be imprisoned for a period of time not less than eighteen months nor more than twenty-four months on each of the three counts in the information, the sentences to run concurrently.
Appellant challenges the judgment on jurisdictional grounds only. This is so apparently because it does not appear from the record that the defendant in the lower court took any exceptions to the form of the charges in the information or to the instructions of the court or otherwise to the proceedings at the trial.
Appellant's first point is that the defendant was prosecuted under the general election laws, Ch. 41, Laws 1927, which have been incorporated in 1941 Comp.Ch. 56, whereas the primary election law was enacted in 1938 (Sp.Sess. Ch. 2) and which may also be found in 1941 Comp.Ch. 56-801-56-827, and which itself provided in general terms what constitutes a violation of the primary law and the penalty therefor. His argument is that since the primary law is an act complete in itself and describes offenses and penalties for the violation thereof, “the District Court was without jurisdiction to try a violation of the primary law under a penal provision of the 1927 statute (Ch. 41).”
By provisions of Sec. 13 of the primary election law, 1941 Comp. 56-813, it is provided that primary elections shall be held in the same manner as by law provided for general elections except as therein otherwise provided, or inconsistent with the provisions of the primary election act, and that such primary elections shall in all respect conform to the laws governing general elections except as otherwise therein provided. It is enacted that:
The primary election law was approved September 1, 1938.
At the same 1938 special session of the legislature there was enacted Ch. 4 of the Laws of that session, 1941 Comp.Sec. 56-524, providing that Ch. 41, Art. 5 of the New Mexico Statutes Annotated, 1929 Comp., and being Ch. 41, Art. 5 of the 1927 Session Acts, be amended by adding thereto a new section to be known and designated as Sec. 56-524, to read as follows:
“The provisions of this article 5 shall apply to all general elections, all special elections, and all primary elections held under the laws of this state, except as amended, changed or modified by the primary Election Code of this state, or except as in conflict therewith.”
This act was approved September 3, 1938.
The Attorney General calls attention to the provisions of 1941 Comp. Sec. 56-827 which provides the penalties for violations of the primary election law and which states that if any judge or clerk of a direct primary election shall be guilty of any willful neglect of duty or of any corrupt conduct in the discharge of the same, such judge or clerk shall be deemed guilty of a felony and upon conviction thereof shall be punished by fine of five hundred dollars or by confinement in the penitentiary for not less than one year nor more than two years or by both such fine and imprisonment. The Attorney General then proceeds to argue that corrupt conduct is a broad term which would include the offenses charged in the information which are in the language describing offenses originally applicable to the conduct of general elections and subsequently by the 1938 amendment cited, supra, made applicable to offenses committed in the conduct of primary elections. The Attorney General pursues the argument as follows:
“It is submitted that even if the Information is considered as charging offenses under the general election laws that this amendment would make the same acts offenses under the primary law and in so far as the penalty under the primary law is repugnant to the penalty under the general election laws, the primary law was followed in imposing the sentence.
“In the alternative the Information may be considered as being brought entirely under the primary law and merely following the language of the general election law in charging corrupt conduct prohibited by the primary law.
“Under either view the trial court had jurisdiction to try the case and impose the Judgment and Sentence given.”
The matter is rather confusing. If the 1938 special session of the legislature intended to make the provisions of the 1941 Comp. Sec. 56-508, relative to making false entries or statements in certificates, registration books, poll books, etc., which offense carried a penalty of imprisonment in the penitentiary for not less than one year nor more than five years...
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...A sentence that is not authorized is an illegal sentence. See Sneed v. Cox, 74 N.M. 659, 397 P.2d 308 (1964); State v. Lucero, 48 N.M. 294, 150 P.2d 119 (1944). Once it was determined that defendant was an habitual offender, the previous sentence for the burglaries and larcenies was no long......
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