State v. Martin
| Decision Date | 29 January 1980 |
| Docket Number | No. 4201,4201 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Alton C. MARTIN, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant appeals from convictions of conspiracy, assault by a prisoner, false imprisonment of a jailer and escape from the penitentiary.
After the State closed its case, defendant moved to dismiss the conspiracy count for insufficiency of the charge in the information. He also moved for a directed verdict of acquittal under Count II, escape from the penitentiary. Both motions were denied. At the conference to designate the record on appeal defendant requested that all testimony be transcribed; the trial court considered portions requested not germane and they were excluded. Defendant moved in this court for a supplemental transcript and the motion was denied for defendant's failure to comply with Rule 209(A).
We discuss defendant's three issues on appeal: (1) Whether the count of conspiracy should have been dismissed because the information was insufficient; (2) whether the crime "escape from the penitentiary" was applicable to defendant's attempted escape from Chaves County jail, and (3) whether defendant was denied his right to an appeal by the inadequacy of the appeal record.
Defendant moved to dismiss Count I at trial. The motion was denied. Objections to an information other than a failure to show jurisdiction in the court or to charge an offense must be raised prior to trial. N.M.R.Crim.Proc. 33, N.M.S.A.1978. Since defendant's claim was that the information failed to charge an offense, defendant's motion was timely made.
The information read:
Count I. That on or about the 5th day of November, 1978, Alton Martin did knowingly combine with another for the purpose of committing a felony within this State, contrary to § 40A-28-2, N.M.S.A.1953 Comp. (§ 30-28-2, N.M.S.A.1978).
Counts II, III & IV charged that on or about November 5th defendant committed the crimes of escape from the penitentiary, assault by a prisoner and false imprisonment, all of which are felonies. Defendant argues that the specific felony which was the subject of the conspiracy must be charged, and that Count I did not specify the offense he conspired to commit.
"The purpose of a criminal information is to furnish the accused with such a description of the charge against him as will enable him to prepare a defense and to make his conviction or acquittal res judicata against a subsequent prosecution for the same offense." State v. Stephens, 93 N.M. 458, 601 P.2d 428 (1979); State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963). Under Williamson v. United States, 207 U.S. 425, 28 S.Ct. 163, 52 L.Ed. 278 (1908), and Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), the offense which a defendant conspired to commit must be identified. The purpose is to inform the defendant of the charges against him, Glasser, supra, at 315 U.S. 61, at 62 S.Ct. 457, and may be analogized to the requirement of stating the specific underlying felony when charging an accused with felony-murder. State v. Hicks, 89 N.M. 568, 571, 555 P.2d 689, 692 (1976), a felony-murder appeal, held that "the name of the felony underlying the charge must be either contained in the information or indictment or furnished to the defendant in sufficient time to enable him to prepare his defense." An open charge of murder and a charge of armed robbery were made in State v. Stephens, supra. The Court held the underlying felony to be clearly stated in the information, providing Stephens with sufficient notice for preparation of a defense.
The information here charged conspiracy to commit a felony as well as three other separate felonies. That was sufficient to give notice of the underlying felony or felonies. State v. Stephens, supra; State v. Lott, supra. Under Hicks, the defendant had a right to have the specific felony or felonies underlying the charge specified in sufficient time for him to know against which felonies he should defend a charge of conspiracy. He did not, however, request a statement of facts, as was done in Hicks, and he waived any claim that he did not know which of the three felonies, or whether all of them, constituted the felony he was charged with conspiring to commit. See State v. Lott, supra. See, also Rules 8 and 9, N.M.R.Crim.Proc., N.M.S.A.1978.
Defendant was properly charged with conspiracy and the trial court did not err in denying defendant's motion to dismiss Count I.
According to the stipulation of the parties, defendant was committed to the New Mexico State Penitentiary on August 22, 1978. On October 31st he was arrested at the Roswell Correctional Center where he had been transferred, on a charge of distributing a controlled substance and was booked into the Chaves County jail. He was thereafter by court order transferred from custody of the penitentiary, to custody of the sheriff of Chaves County until after his arraignment of December 18, 1978. The order provided that upon completion of the arraignment he was to be returned to the New Mexico State Penitentiary. On November 5th, defendant participated with other inmates in an attempted escape. One of the escaping inmates was armed with an iron bar. The jailer was threatened, then locked in a cell by the escapees after they took his keys.
Defendant moved for a directed verdict on the escape count, contending that, if anything, he had escaped from jail and was wrongly charged, which motion was denied. He also submitted proposed instructions on the charge, and they were refused. He was convicted under § 40A-22-9(B), N.M.S.A.1953 (presently § 30-22-9(B), N.M.S.A.1978), which reads:
Escape from the penitentiary consists of any person who shall have been lawfully committed to the state penitentiary:
A. escaping or attempting to escape from such penitentiary; or B. escaping or attempting to escape from any other lawful place of custody or confinement and although not actually within the confines of the penitentiary.
Whoever commits escape from penitentiary is guilty of a second degree felony.
Defendant argues that for the statute to apply to escape from the Chaves County jail, there must be a connection between the prison commitment and the jail commitment. Since defendant was placed in jail for a separate arrest made while committed to the State penitentiary, he was not in jail for a purpose of a penitentiary commitment. Therefore, he argues, the applicable statute was § 30-22-8, N.M.S.A.1978, escape from jail, a fourth degree felony as opposed to the second degree offense with which he was charged.
It is not disputed that defendant had been lawfully committed to the penitentiary.
The trial court ordered that "the Warden of the New Mexico State Penitentiary release the defendant Alton Martin to the custody of the Sheriff of Chaves County until after his arraignment on the 18th day of December, 1978." It was further ordered that "upon completion of the arraignment, that the Sheriff of Chaves County return Alton Martin to the New Mexico State Penitentiary."
This order provided for a change in the location of his physical confinement, but did not change the fact the defendant's lawful custody or confinement was in the penitentiary. State v. Brill, 81 N.M. 785, 474 P.2d 77 (Ct.App.1970); see §§ 30-1-12(H) and 30-22-9(B), N.M.S.A.1978.
Whatever the meaning of "committed," see State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.App.1968), defendan...
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