State v. McCrary
| Decision Date | 07 January 1982 |
| Docket Number | No. 5347,5347 |
| Citation | 639 P.2d 593,1982 NMCA 3,97 N.M. 306 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Bryan McCRARY and Bart Dewayne Burdick, Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
Is a prosecutor (in this case, an assistant district attorney), authorized to charge first degree murder in an information based on a magistrate's bind-over order for trial on second degree murder? No. We discuss (1) the applicability of State v. Melendrez, 49 N.M. 181, 159 P.2d 768 (1945); and (2) authority to charge.
The criminal complaint against each defendant charged murder in violation of § 30-2-1, N.M.S.A.1978. After a preliminary examination was held, the magistrate bound over each defendant for trial in the district court on the charge of "2nd Degree Murder or lesser Offense". The prosecutor filed informations charging each defendant with murder in the first degree. Each defendant moved that the first degree murder charge be stricken from the information or, in the alternative, that the information be dismissed. After the cases were consolidated, the motions were denied. We granted an interlocutory appeal.
the information filed by the district attorney must substantially charge the crime stated in the complaint filed with the justice of the peace ... or one which is included or embraced within it, and further contends that in case the crime charged in the information is not the one stated in the complaint ... or one included therein, the district court cannot over the objection of the defendant, legally proceed to try him for the offense charged in the information(.)
It appears that there are three views, influenced no doubt by the statutes of the various jurisdictions.
1) The information must conform to the preliminary proceedings and charge an offense which is substantially the same as, or which is included in, that disclosed by the preliminary examination. (Hereinafter View No. 1.)
2. On the other hand, some authorities require the information to conform with the complaint filed in the magistrate's court. (Hereinafter View No. 2.)
3. Still other authorities require the information to conform with the commitment or order holding the accused to answer. (Hereinafter View No. 3.)
(W)e think the ... view numbered 3, supra, is the more reasonable and acceptable view under our statutes, and without expressing an opinion as to whether some other degree of conformity between the preliminary proceedings and the information will suffice, we hold that on the present record, where the crime charged in the complaint in the magistrate's court is kindred to that to which the accused is held to answer in a preliminary examination otherwise sufficient, and the information is in substantial accord with the magistrate's commitment, the district court committed no reversible error in overruling the legal exceptions to the proceedings mentioned in the early part of this opinion.
Defendants rely on the statement in Melendrez that View No. 3 is the "more reasonable and acceptable view under our statutes".
The State points out that defendants overlook another statement in Melendrez :
Whether it could be reasonably contended that the district attorney ... might file an information charging an offense not named in the commitment (bind-over order) but supported by the evidence thus appearing to have been adduced at the preliminary examination is a question we do not decide.
Our view of Melendrez is:
1. The question to be decided was whether the preliminary examination was "sufficient to afford due process of law as a condition preliminary to the exercise of the power vested in the district attorney" to file an information. Considering the kindred relationship between the complaint, the bind-over order and the information, there was no violation of due process.
2. View No. 2 was rejected. "(W)e do not think the decision of the prosecuting officers in the matter of the charge to be stated in information filed by them is limited by the single factor of the charge set forth in the complaint filed in the preliminary proceedings."
3. Although View No. 3 was "more reasonable and acceptable", the validity of View No. 1 was not decided.
Melendrez considered the relationship between the complaint, the bind-over order and the information in deciding a due process issue. This case does not involve the relationship of the complaint either to the bind-over order or to the information; this case involves the relationship of the bind-over order to the information. This case does not present a due process issue; the issue is the prosecutor's authority to file an information charging first degree murder when the bind-over order was for second degree murder. Melendrez does not answer that issue; Melendrez will be referred to subsequently because it provides guidance in deciding the issue presented.
The district attorney has no common law powers; "The constitution and statutes clearly prescribe and delimit his authority." State v. Reese, 78 N.M. 241, 430 P.2d 399 (1967); see Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App.1980).
Wisconsin, without reference to any constitutional limitation, has held that the charge in the information is not limited by the bind-over order. Hobbins v. State, 214 Wis. 496, 253 N.W. 570 (1934), states:
Section 355.17, Stats., provides that the district attorney may file any information "setting forth the crime committed, according to the facts ascertained on such (preliminary) examination and from the written testimony taken thereon, whether it be the offense charged in the complaint * * * or not."
Section 361.18, Stats., provides that the magistrate shall commit or bind the defendant for trial "if it shall appear that an offense has been committed and that there is probable cause to believe the prisoner guilty."
These statutes refute the contention of defendant upon this assignment of error. The district attorney in filing his information is not limited by the complaint. (Citations omitted.) Nor is he limited by the opinion of the magistrate as to the offense committed. Section 361.18, Stats., states the power of the magistrate and impliedly the limitation of his power. If it appears that any offense has been committed and that the defendant is probably guilty of any offense, he must hold the defendant for trial. That is all he is authorized to do. He is not authorized to restrict the action of the district attorney in filing an information or to limit the power of the circuit court in determining for what offense or upon what specific charges the defendant shall be tried. Cases from other jurisdictions having no such statutes as above cited are entirely pointless. The plea in abatement was rightly overruled.
New Mexico does not have a statute similar to quoted Wisconsin statute § 355.17. Historically, New Mexico has never had a similar statute. Compare N.M.Code 1915, §§ 1857-1876; N.M.S.A.1929, §§ 35-4401 through 35-4428 and 105-2201 through 105-2235; N.M.S.A.1941, §§ 42-301 through 42-316 and 42-601 through 42-652; N.M.S.A.1953 , §§ 41-3-1 through 41-3-14 and 41-6-1 through 41-6-52. New Mexico Const., art. II, § 14, authorizes the district attorney to file an information, but there is neither statute nor rule prescribing or delimiting the district attorney's authority in filing an information.
New Mexico has, and has had, provisions similar to quoted Wisconsin statute § 361.18. See the statutes discussed in Melendrez. Current R.Crim.Proc., Magis. Cts., 15(c) states: "If the court finds that there is probable cause to believe that the defendant committed an offense not within magistrate court trial jurisdiction, it shall bind the defendant over for trial." Compare R.Crim.Proc. 20(c). Melendrez points out that "an offense" does not mean the offense charged in the complaint but "the offense found by the magistrate as a result of the preliminary examination to have been committed by the prisoner." We agree with Hobbins v. State, supra, when it states the magistrate is not authorized to restrict the action of a district attorney in filing an information; that, however, is not the question. The question is the district attorney's authority, not a restriction on that authority by a magistrate.
California, on the basis of a constitutional provision and a statute, has held, with certain restrictions, that the charge in the information is not limited by the bind-over order. Jones v. Superior Court of San Bernardino County, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241 (1971). The State suggests we adopt the California view. We cannot do so for two reasons. First, we do not have a similar statute. Second, our constitutional provision differs from the wording of the California constitutional provision. Compare N.M.Const., art. II, § 14 with the California provision quoted in Jones, supra. The California provision "is not expressed in the negative or prohibitive form." See State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). New Mexico's provision, quoted hereinafter, is expressed in the negative or prohibitive form.
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