State v. Montgomery.
| Decision Date | 08 January 1923 |
| Docket Number | No. 2697.,2697. |
| Citation | 28 N.M. 344,212 P. 341 |
| Parties | STATEv.MONTGOMERY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A faulty allegation of fact in an indictment is cured by verdict.
Section 3603, Code 1915, requiring the city marshal to forthwith take his prisoner before the proper magistrate for examination and trial, requires no more than that the same shall be done with reasonable promptness and dispatch.
Motion for an instructed verdict examined, and held not to be well founded.
Appeal from District Court, Curry County; Bratton, Judge.
J. H. Montgomery was convicted of unlawfully assisting another to escape from custody, and he appeals. Affirmed.
A faulty allegation of fact in an indictment is cured by verdict.
Rowells & Reese, of Clovis, for appellant.
Harry S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.
The statute, section 3066, Code 1915, under which the indictment was drawn, provides that any person who “shall, by any means whatever assist any such prisoner in his endeavor to escape therefrom [place where lawfully committed or detained] whether such escape be attempted or effected or not,” shall be punished, etc. The indictment charges that the defendant “did then and there knowingly, willfully, and unlawfully assist one Watson Kemp, in escaping from the city jail of Clovis, N. M., * * * by then and there unlocking and opening the door of said city jail of Clovis, N. M., with the intent then and there to effect, by unlocking and opening the said door of the said city jail of Clovis, N. M., the escape of the said Watson Kemp, the said Watson Kemp being then and there duly and lawfully confined in said city jail of Clovis, N. M., by an arrest made by D. L. Moye, city marshal of said city of Clovis, N. M., for an offense of assault and battery committed in the presence of the said D. L. Moye, city marshal, aforesaid. * * *” The appellant was convicted and sentenced, and has brought this appeal.
Counsel for appellant presents several objections to the indictment: (1) He says that the indictment charges that appellant assisted one Watson Kemp in escaping from the jail, while the statute condemns the assisting of a prisoner in his endeavor to escape and argues that the indictment thus fails to follow the statute and does not charge the crime. (2) Counsel further argues that the indictment fails to show that the prisoner was lawfully confined in the jail. The argument proceeds upon the theory that, although the indictment alleges that the prisoner was confined by the city marshal for the offense of assault and battery committed in the presence of the officer, the officer had no authority to confine the prisoner without a commitment from a magistrate, and no such authority was alleged. The argument is based on the language of section 3603, Code 1915, which provides that the marshal, upon making an arrest, shall “forthwith bring such persons before the competent authority for examination and trial,” and, it is stated, until this is done there is no power in the marshal to confine a person in jail.
[1] 1. It is readily seen that the defect first above mentioned is formal, rather than substantial. How a prisoner could in fact escape from jail without endeavoring to escape, it is difficult to understand. The act of escape includes the endeavoring to escape. This slightly faulty allegation was not called to the attention of the trial court before or during the trial and was, consequently, cured by the verdict. The doctrine is stated by Mr. Bishop as follows:
“It is that though a matter either of form or of substance is omitted from the allegation or alleged imperfectly, yet if under the pleadings the proof of it was essential to the finding, it must be presumed after verdict to have been proved, and the party cannot now for the first time object to what has wrought him no harm.” 1 Bishop's New Cr. Proc. p. 422.
See, also, Territory v. Eaton, 13 N. M. 79, 79 Pac. 713; Haynes v. United States, 9 N. M. 519, 56 Pac. 282; 14 R. C. L. Inds. and Infs. § 55.
[2] 2. The second alleged defect, above mentioned, is no defect at all. The statute...
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State v. Hicks
...677, 682, 448 P.2d 478, 483 (Ct.App.1968); State v. Garcia, 78 N.M. 777, 779, 438 P.2d 521, 523 (Ct.App.1968); State v. Montgomery, 28 N.M. 344, 347, 212 P. 341, 342 (1923). The court in State v. Montgomery, ruled that the term "forthwith" is necessarily elastic in meaning and must vary und......
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State v. Garcia
...it does not mean that defendant must be taken before the magistrate 'regardless of the time of day or night.' State v. Montgomery, 28 N.M. 344, 212 P. 341 (1923). Until taken before the magistrate he is lawfully confined. State v. Montgomery, supra. Being lawfully confined, defendant was co......
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Perea v. Stout
...person to be discharged if a magistrate is not available. Compare State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967); State v. Montgomery, 28 N.M. 344, 212 P. 341 (1923); State v. Slicker, 79 N.M. 677, 448 P.2d 478 (Ct.App.1968); State v. Garcia, 78 N.M. 777, 438 P.2d 521 (Ct.App.1968). The t......
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State v. Archer
... ... fact is defectively stated, but where all of the elements of ... the crime are implied from the allegations employed. In such ... a case a motion in arrest of judgment is not available. 31 ... C.J. "Indictment and Information," § 548; State ... v. Montgomery, 28 N.M. 344, 212 P. 341 ... 3. The ... same considerations control the objections urged by the ... defendant Foster in regard to the court's instruction No ... 12, in which the court directed the jury that they must find ... that he was absent at the time of the ... ...