State v. Melendrez.

• Decision Date: 15 May 1945
• Docket Number: No. 4886.,4886.
• Citation: 49 N.M. 181,159 P.2d 768
• Parties: STATEv.MELENDREZ.
• Court: New Mexico Supreme Court

49 N.M. 181

159 P.2d 768

STATE

v.MELENDREZ.

No. 4886.

Supreme Court of New Mexico.

May 15, 1945.

Appeal from District Court, Grant County; Charles H. Fowler, Judge.

Lucas Melendrez was convicted of assault with intent to murder, and he appeals.

Affirmed.

The purpose of a “preliminary examination” is to inquire concerning commission of crime and connection of accused with it, in order that he may be informed of nature and character of crime charged against him and, if there be probable cause for believing him guilty, that state may take necessary steps to bring him to trial; to perpetuate testimony; and to determine amount of bail which will probably secure attendance of accused to answer the charge. Const. art. 2, § 14.

[159 P.2d 769 , 49 N.M. 183]

C. C. Royall, of Silver City, for appellant.

C. C. McCulloh, Atty. Gen., and Thomas C. McCarty, Asst. Gen., for appellee.

BICKLEY, Justice.

The defendant was tried by a jury and convicted of ‘Assault With Intent To Murder’. The information of the district attorney on which the trial proceeded presented two counts; the first being ‘Assault With Intent To Murder’, and the second, ‘Assault with Intent to Maim.’, both under Sec. 41-606, N.M.S.A.1941 Comp. At the conclusion of the trial the court required the district attorney to elect which of the said counts was to be submitted to the jury, and the district attorney elected to stand on the first count of the information charging ‘Assault With Intent To Murder.’ The defendant adequately raised the question that there does not exist under the laws of the State of New Mexico the offense of assault with intent to murder under said Sec. 41-606 of the 1941 Comp., asserting that said section had been changed and superseded by Sec. 41-607 of said compilation establishing the offense of ‘Assault with intent to kill’ and providing penalties therefor and that the offense of ‘Assault with intent to murder’ under Sec. 41-606 was repealed.

The defendant also raised the question that no preliminary hearing upon proper complaint was ever held on the charge of ‘Assault With Intent To Murder’ and that the filing by the district attorney of such charge was unauthorized and improper. The objections so raised by the defendant were overruled by the court and the case is before us on two assignments of error as follows:

‘I. The court erred in holding that the part of Sec. 41-606 making ‘Assault with intent to murder’ a crime was still in force and effect, and not repealed by Sec. 41-607, changing the offense to ‘Assault with intent to kill’.

‘II. The court erred in holding that a sufficient preliminary examination on the charge of ‘Assault with intent to murder’ was had and in not dismissing the Information for that reason.'

The defendant had been arrested on a warrant issued by a justice of the peace charging him with ‘Assault With Intent to Kill’ and based on a complaint which had been made in the court of the said justice of the peace charging the defendant with ‘Assault With Intent to Kill’. The defendant was brought before the justice of the peace and entered a plea of ‘Not guilty’. On the day set for the preliminary examination the district attorney appeared for the state and asked that the charge be changed to ‘Assault With Intent to Murder and/or Maim’. The complaint was not so changed and no new or further complaint was made and filed against the defendant; the justice of the peace proceeded with a preliminary examination and at the conclusion thereof held the defendant to the district court and issued a commitment against him holding him on a charge of ‘Assault With Intent to Murder and Maim.’ The district attorney thereafter filed his information, charging the defendant in court I with ‘Assault With Intent to Murder’ and in count II, ‘Assault With Intent to Maim.’ The district court held against the contentions of the defendant and to the effect that Sec. 41-606 of the 1941 Comp. had not been repealed and is still in force and effect, and that a sufficient preliminary examination was had and held to authorize the district attorney to file the information involved in the case at bar.

Sec. 41-606 was enacted substantially in its present form in the Laws of 1853-54. The only changes which have been made are that the compilers of the 1915 Code substituted the words ‘state penitentiary’ for the words ‘county jail or territorial prison.’ By the Laws of 1921, Ch. 65, the legislature changed the penalty by making the maximum term of imprisonment 25 years instead of the former maximum penalty of 5 years.

The legislature in 1929 adopted Ch. 44 of the laws of that session entitled: ‘An Act Defining the Crime of Assault With Intent to Kill and Prescribing Punishment Therefor.’

Section I thereof being as follows: ‘If any person shall assault another, with intent to kill such person, he shall be punished by imprisonment in the State Penitentiary for not more than twenty-five (25) years, nor less than one (1) year, or by fine not exceeding One Thousand Dollars ($1,000.00), or by both such fine and imprisonment in the discretion of the court.’

Sec. 2. contained nothing more than the emergency clause. This enactment is carried forward as Sec. 41-607, Comp.1941. Said Ch. 44, L.1929, did not purport to repeal any other laws of the state. The absence of a repealing clause in the later enactment is not determinative but is a circumstance which may be considered in connection with other aids to statutory construction. Among these aids are the following: ‘Where two statutes have the same object and relate to the same subject, if the later act is repugnant to the former the former is, to the extent of the repugnancy, repealed by implication, even in the absence of the repealing clause in the later act.’ See Baca v. Board of Com'rs of Bernalillo County, 10 N.M. 438, 62 P. 979.

In State v. Romero, 19 N.M. 1, 140 P. 1069, it was decided: ‘Repeals by implication are not favored, but will be declared by the courts in cases where ‘the last statute is so broad in its terms and so clear and explicit in its words as to show that it was intended to cover the whole subject, and therefore to displace the prior statute.’'

For other authorities on implied repeals see Levers v. Houston, 49 N.M. 169, 159 P.2d 761.

Appellant's argument would be more persuasive if there were no distinguishing features between the offenses of assault with intent to murder, and assault with intent to kill. That distinguishing features do exist see 40 C.J.S., Homicide, § 73, where it is said:

‘ Distinguished from assault with intent to kill.

‘There is a well recognized distinction between an assault with intent to murder and an assault with intent to kill. Malice is a necessary element to constitute an assault with intent to murder but it is absent in an assault with intent to kill or commit manslaughter, or, as it is said, the assault with intent to kill may be committed without malice. If malice is lacking and yet the assault is unlawful, the crime committed is of a lower degree than assault with intent to murder.’

See also 1941 Comp. Sec. 42-641 (Trial Court Rule 35-4446 applicable to Criminal Procedure) which sets forth forms which may be used in charging offenses, where appears the following: ‘Assault With Intent.-A.B. assaulted C.D. with intent to murder him, (or kill, or rob, or maim him as the case may be).’

This shows an understanding that assault with intent to murder and assault with intent to kill are not identical offenses.

That the compilers of the 1929 Compilation carried the two sections into that Compilation as 35-602 and 35-605, and the Compilation Commission of 1941 carried the two enactments forward in that compilation as Secs. 41-606 and 41-607 of that compilation are circumstances of some weight against appellant's contention.

Appellant calls attention to the fact that assault with intent to kill is an offense generally regarded as of less degree than assault with intent to murder, and yet the penalty prescribed for a violation of 41-607 (Assault With Intent to Kill) may in the discretion of the court be more severe than the penalty under Sec. 41-606 (Assault With Intent to Murder). Appellant argues: ‘The Legislature has the right, of course, to prescribe a more severe penalty for assault with intent to kill than would result had the intent been consummated and the victim killed, but it does not seem reasonable to suppose that the Legislature would pass a new act creating a new offense which would be an offense of lesser degree and then voluntarily or negligently prescribe a far more severe penalty for the offense of assault with intent to kill than prescribed by the statute for the offense of killing under like circumstances. It seems inescapable that this was a new enactment to take the place of the old statute and to include therein assault with intent to kill and increase the penalty, and that the old statute is repealed by implication, and that now our only statute with reference to assault with intent to kill in all degrees is the 1929 enactment, Sec. 41-607.’

That there is an anomaly here may be recognized, and yet, knowing as we do that anomalies frequently appear in legislative enactments, due perhaps to lack of exercise of care in surveying previous legislation, this one does not persuade us to appellant's view in the face of other considerations pointing strongly the other way.

We conclude that appellant's assignment of error No. I is without merit.

The appellant's assignment of error No. II presents a question which is not entirely free from difficulty.

The appellant contends that under our Constitution, Art. 2, Sec. 14, and our statutes, the information filed by the district attorney must substantially charge the crime stated in the complaint filed with the justice of the peace or other magistrate authorized to conduct preliminary examinations as the basis for such examinations, or one which is included or embraced within...