State v. Newman.

• Decision Date: 02 October 1923
• Docket Number: No. 2747.,2747.
• Parties: STATEv.NEWMAN.
• Court: New Mexico Supreme Court

29 N.M. 106

219 P. 794

STATE

v.NEWMAN.

No. 2747.

Supreme Court of New Mexico.

Oct. 2, 1923.

Syllabus by the Court.

An indictment drawn under subdivision (a) of chapter 69, Laws of 1921, and which undertakes to detail the facts constituting the crime, is insufficient if it fails to affirmatively charge that the appointment made with a female, the offer and agreement to receive her into an automobile, and of actually receiving her into such car, were done for the purpose of assignation as defined in such act.

Such an indictment drawn under subdivision (f) of such statute is likewise insufficient if it fails to affirmatively charge that the taking and receiving of a female into an automobile, and of remaining therein with her, were done for the purposes of lewdness and assignation.

An indictment which charges an offense in the general terms of the statute, followed by a detailed statement of the facts constituting such offense, from which it affirmatively appears that no violation has necessarily been committed, is defective.

Where such an offense is so charged in the general terms of the statute, followed by a detailed statement of the facts constituting such offense, the prosecution is limited to establishing the facts so detailed.

From an indictment which charges lewdness by placing the hand under the dress and upon the vulva of “her,” the person named, it sufficiently appears that such person is a female.

Where a crime is charged in the general terms of the statute to have been unlawfully and feloniously committed, and this is followed by a detailed statement of the facts constituting such crime, and such detailed statement is connected with such general charge by the language “by then and there,” there is but one crime charged, and the words “unlawfully and feloniously” become and are component parts of it, and such words are carried forward and made a part of such detailed facts; hence it is unnecessary to repeat them.

An instruction which fails to advise the jury that before finding the defendant guilty they must find that he unlawfully and feloniously committed the acts charged is erroneous, as these are necessary elements of the offense charged.

The interest and feeling of a witness, which indicate bias or prejudice, are matters which affect his or her credibility. As such they are always material, and upon which a witness may be impeached.

Appeal from District Court, Otero County; Ed Mechem, Judge.

Lee Newman was convicted of offenses, and he appeals. Reversed and remanded for a new trial.

Cross-examination of a witness as to whether she had not told a certain person how she had testified and asked such person to testify to the same effect, did not relate to a collateral or immaterial matter, and she could be contradicted.

C. W. Croom, of El Paso, Tex., and Holt & Sutherland, of Las Cruces, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

BRATTON, J.

Appellant was charged by indictment with violating the provisions of chapter 69, Laws of 1921, which is an act designed to repress prostitution, lewdness, and assignation. Section 1 of such act contains seven subdivisions, each of which prescribes a separate offense. The indictment in question contains seven counts, it being attempted to charge, by such separate counts, each and all of the offenses denounced by the statute. A demurrer was interposed which challenged the sufficiency of each count of the indictment. The trial court sustained such demurrer as to the second and fifth counts, and overruled it as to the remaining ones. The jury found the appellant guilty as charged in the first, sixth, and seventh counts, and failed to convict as to the third and fourth.

Pursuant to such verdict he was sentenced to serve a term in the penitentiary of not less than 11 months nor more than one year upon each count, with the provision that such sentences should run consecutively. From such sentence this appeal has been perfected.

It is first urged by the appellant that the court erred in overruling his demurrer to the first count of the indictment, which is in the following language:

“That Lee Newman, late of the county of Otero, state of New Mexico, on the 27th day of August, A. D. 1921, at the county and state aforesaid, did unlawfully and feloniously operate a certain automobile for the purpose of assignation by then and there making an appointment with Bonnie Lee McCommis, and offering and agreeing to receive into said automobile the said Bonnie Lee McCommis, and by receiving into said automobile the said Bonnie Lee McCommis and one Bernadette Rogers, contrary to the form of the statute in such case made and provided and against the peace and dignity of the state of New Mexico.”

This charge is attempted to be laid under the provisions of section 1, subd. (a), of the act in question, by which it is made an offense “to keep, set up, maintain, or operate, any place, structure, building, or conveyance for the purpose of prostitution, lewdness, or assignation.” By such demurrer this count was specifically attacked because it failed to charge the appointment, offer, or agreement was made, or the girls in question received into the automobile, for the purpose of assignation. The term “assignation,” as used in the act in question, is defined in section 2 thereof as follows:

“That the term ‘assignation’ shall be construed to include the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.”

[1] It is clearly apparent that the indictment is insufficient in that it fails to charge that the acts of making the appointment with Bonnie Lee McCommis, of offering and agreeing to receive her into such automobile, and of receiving her and Bernadette Rogers into such car, were for any of the purposes named by the statute, to wit, the making of an appointment or engagement for prostitution or lewdness, or any act in furtherance of such an appointment or engagement. The mere making of an appointment with a female, or the mere offering to receive and of actually receiving her into an automobile, is no crime under the statute. They must be made and done for prostitution or lewdness, and no such act is charged in the detailed facts contained in this indictment. After charging a crime in general terms, in the language of the statute, and then undertaking to detail the facts which constitute such crime, no crime is charged. The facts which it is charged constitute the crime are pleaded in this language:

“By then and there making an appointment with Bonnie Lee McCommis, and offering and agreeing to receive into said automobile the said Bonnie Lee McCommis, and by receiving into said automobile the said Bonnie Lee McCommis and one Bernadette Rogers.”

[3][4] Obviously this is no offense, and no crime whatever is committed, unless the acts were done for prostitution or lewdness or in furtherance of them--things which are not charged. In this connection it is urged by the state that it was sufficient to charge a crime in the language of the statute. If we concede this to be a correct statement of law, and which question we do not decide, it has no application here, because it runs counter to the general rule that, where an indictment undertakes to set forth the facts constituting the crime, and they affirmatively show no crime has been committed, such indictment is defective; this for the reason that under such circumstances the prosecution is limited to establishing the facts pleaded, and cannot go beyond them with its proof. So that under this indictment the state could not go beyond merely proving that the appellant made an appointment with Bonnie Lee McCommis; that he offered and agreed to receive her into his automobile, and afterwards did receive her and Bernadette Rogers into such automobile, with no proof concerning the purpose of making such appointment or agreement, or of receiving said girls into said car. This, manifestly, could not constitute a crime under a statute of this kind, the purpose of which is to repress prostitution, lewdness, or assignation.

In the case of Walt v. People, 46 Colo. 136, 104 Pac. 89, the information charged, in the general terms of the statute, an offense of keeping and maintaining an ill-governed and disorderly house, and then undertook to detail the facts constituting such offense. It was contended by the appellants that such detailed facts did not constitute a violation of law, and that the prosecution was limited to such facts. The court held that the prosecution was limited to the detailed facts, but that they did constitute an offense. It said:

“It is next argued that though the information charges, in the language of the statute, the keeping of a disorderly house, it further sets forth the specific acts constituting the disorder, and, having so pleaded, the people are bound thereby, and that such acts do not constitute said offense within the meaning of the law. That a plea which attempts to allege the specific facts constituting the crime must allege sufficient to establish the complete offense, admits of no argument. The rule, however, in no wise affects the information in question. Having charged the offense in the language of the statute, and set forth the specific acts constituting the disorder, the effect thereof was to limit the proof. Under the pleading the people would not be permitted to show that the house was kept and maintained ‘to the encouragement of gaming,’ nor ‘to the encouragement of fornication.’ These are not specified in the information. Other elements constituting the offense are, and the proof must be and was, limited to them.”

In State v. Mahan, 2 Ala. 340, the appellants were prosecuted for betting upon an election. By statute it was provided:

“Any person or persons, who shall make any bet, or wager of money, or any other valuable thing, upon any election or elections in...