State v. Roessler, 5602

• Decision Date: 29 January 1954
• Docket Number: No. 5602,5602
• Parties: STATE v. ROESSLER.
• Court: New Mexico Supreme Court

Page 351

266 P.2d 351

58 N.M. 102

STATE v. ROESSLER.

No. 5602.

Supreme Court of New Mexico.

Jan. 29, 1954.

Richard H. Robinson, Atty. Gen., Clyde C. McCulloh, Asst. Atty. Gen., Fred M. Standley, Asst. Atty. Gen., for appellant.

F. Gordon Shermack, Santa Fe, for appellee.

FEDERICI, District Judge.

A criminal information was filed against the defendant in the District Court in words and figures as follows:

'Criminal Information

'Bertrand B. Prince, District Attorney for the County of Santa Fe, New Mexico, accuses the defendant, Thomas Roessler, alias Tom Russell, alias Rocky Roessler, of the crime of contributing to the delinquency of a female under the age of 18 years, contrary to New Mexico Session Laws of 1943, Ch. 36, Sec. 1, and states that said criminal act occurred on or about the 9th day of April, 1952, in the County of Santa Fe State of New Mexico.

'/s/ Bertrand B. Prince.'

Upon arraignment the State of New Mexico appeared by Bertrand B. Prince, District Attorney, and the defendant appeared in person and by his attorney Harry L. Bigbee, and the transcript discloses the following proceedings were then had:

'Mr. Bigbee: At this time we will waive the reading of the information, and on behalf of the defendant, enter a plea of guilty.

'Court: Thomas Roessler, you have heard this statement of your attorney. Do you agree to waive the reading of the information in this instance?

'Mr. Roessler: Yes, sir.

'Court: You understand the charge, contributing to juvenile delinquency?

'Mr. Roessler: Yes, sir.

'Court: And you agree to waive it and enter a plea of guilty?

'Mr. Roessler: Yes.

'Court: What are the circumstances?

'Mr. Prince: On the 9th day of April, 1952, the defendant, in company with his wife, went to Albuquerque, New Mexico, with a minor of the age of 16 years, by the name of XXXXXX, and there married XXXXXX. They returned to Santa Fe, and then the defendant left with XXXXXX for Texas, where they stayed a day and a night, and then they were returned to Santa Fe, New Mexico. (Victim named in transcript omitted.)

'Court: What offense occurred here in Santa Fe?

'Mr. Prince: The offense here, if it pleases the Court, was the taking of this 16 year old girl out of the county. What occurred subsequently indicates the intention of the defendant to perpetrate this particular act. In other words, the contributing here is the fact that this girl was talked to about marriage, and under the circumstances, defendant already being married and talking to the girl, (here appears name of victim), pertaining to marrying, under the circumstances, would be the contributing to her delinquency.

'Court: Do you have anything to say, Roessler, before the Court passes sentence on you, either you or your attorney?'

Thereupon defendant's counsel made a statement to the Court including the following statements:

'Mr. Bigbee: * * * Mr. Roessler informs me that he can give no adequate explanation for his acts. He says that he is unable to remember many of the things that happened, * * * I rather tend to believe that he is a psychiatric case, in connection with his apparent loss of memory or the things that he did. However, I will say that I had the man examined shortly by Dr. Hamilton, who, as the Court knows, is not a psychiatrist, but he does have considerable experience, and he expressed the opinion, on a short examination, that the man was sane, which is why I have--that so far as he could tell from his examination, that he couldn't testify the man would be criminally insane to the extent that that would be a defense. However, I do feel that that is the only possible explanation, is all I can tell the Court, * * *.'

Thereafter the following conversation took place between the Court and defendant:

'Court: Do you have anything to say, Mr. Roessler, before the Court passes sentence on you?

'Mr. Roessler: No, sir.

'Court: Nothing?

'Mr. Roessler: No.

'Court: How old are you, 21?

'Mr. Roessler: Yes, sir.

'Court: How long have you been married?

'Mr. Roessler: Two and a half years.

'Court: How long have you known this little girl that you took off with you?

'Mr. Roessler: About two months.

'Court: Did she know you were married?

'Mr. Roessler: I don't think so.

'Court: You don't think so?

'Mr. Roessler: No, sir.

'Court: Where is you home, here?

'Mr. Roessler: I was born here, I came from California here about two months ago.

'Court: Have you ever been in trouble before?

'Mr. Roessler: No, sir.

Court: Of any kind?

'Mr. Roessler: In the service.

'Court: In the service did you get a dishonorable discharge?

'Mr. Roessler: No, it's in between, it's a bad conduct.

'Court: What was that for?

'Mr. Roessler: Three days AWOL.

'Court: And what else?

'Mr. Roessler: I got six months in the Guard House, they were getting rid of all the men over three months at that time.

'Court: When were you discharged?

'Mr. Roessler: April of 1949.

'Court: How long were you in?

'Mr. Roessler: Two and a half years.'

Thereafter there followed some conversation between the Court and Mrs. Roessler pertaining to her feelings in the matter, and also pertaining to some other criminal action against her arising out of the same transaction, none of which matters are pertinent here.

The court finally sentenced the defendant orally as follows:

'Court: The Court is going to take into consideration your age,Roessler, and the plea made on your behalf by your attorney, and the statement made by your wife. I want you to know you are going to have to pay the penalty, you can't get out of these things by walking in here and saying you'rs sorry. It will be the judgment and sentence of the Court that you be confined in the New Mexico State Penitentiary at Santa Fe, New Mexico, for a period of not less than 18 months nor more than 5 years. That will be all.'

Almost two months after sentencing, the following motion was filed in the District Court, to-wit:

'Motion to Vacate Judgment and Sentence and to Withdraw Commitment

'Comes now Thomas Roessler, defendant in the above entitled matter, and moves that the Court vacate the judgment and sentence previously entered in this cause and withdraw the commitment previously issued, and for grounds of said motion, states:

'1. That heretofore on or about the 3rd day of May, 1952, defendant entered his plea of guilty to the information filed in the above entitled matter.

'2. That this Court had no jurisdiction to try defendant or accept his plea of guilty for the following reasons:

'(a) That the information was not sufficient to advise the defendant with reasonable certainty of the crime with which he was charged.

'(b) The information was not sufficient to enable the defendant to prepare his defense.

'(c) The information was not sufficient for the defendant to be able to plead the record and judgment in Bar to a subsequent prosecution for the same offense.

'(d) That the information does not charge an offense under the statutes of the State of New Mexico.

'3. Since no public offense was charged by the information, defendant's plea of guilty confessed nothing.

'Wherefore, defendant prays that the judgment and sentence in this cause be vacated and commitment withdrawn.

/s/ W. R. Kegel

W. R. Kegel, Salmon Building

Santa Fe, New Mexico

Attorney for Defendant.'

The District Court sustained the motion and in so doing made the following finding:

'* * * that defendant's Motion is well taken, in that the information filed in this cause charges no offense under the statutes of the State of New Mexico, and that therefore this court had no jurisdiction to try defendant or accept his plea of guilty.'

and made the following order:

'It is therefore ordered, that the Judgment and Sentence heretofore filed in this cause be, and the same hereby is vacated, and the Commitment heretofore issued by the Clerk of this Court be, and the same hereby is withdrawn.'

This cause is now before this court by virtue of an order of the District Court allowing the plaintiff, State of New Mexico, an appeal from the order and judgment of the District Court vacating the judgment and sentence and withdrawing the commitment of defendant. The propositions called upon by this appeal to be decided by this court may be stated as follows:

1. Does the information fail to charge an offense:

(a) in that it fails to name the victim; and/or

(b) in that it fails to allege particular acts?

2. Is Sec. 44-116, N.M.Statutes 1941 Annotated, Sec. 1, Ch. 36, Laws of 1943, unconstitutional in that it is vague, indefinite and uncertain?

Proposition 1-a is disposed of by our holding in the case of Ex parte Kelley, 57 N.M. 161, 256 P.2d 211, 214, where this Court held that an information charging an accused with statutory rape 'was not fatally defective in failing to name the victim of the rape charged.'

Proposition 1-b is also substantially disposed of by the holding of this court in Ex parte Kelley, supra, and in State v. Shroyer, 49 N.M. 196, 160 P.2d 444. These cases hold that an indictment or information need not recite the particulars of the offense, it being sufficient that the accused shall have the right to demand the nature and the cause of the accusation, and the cited cases hold in effect that the accused being accorded the right to request a bill of particulars, under Sec. 42-608, N.M.Statutes 1941 Annotated, is thereby amply protected. In the instant case no bill of particulars was requested, and that was a right which the defendant and his counsel had a right to waive, and which was waived by the entry of a plea of guilty without requesting any additional particularization of the charge prior to arraignment (although ample particularization was made in open court and prior to sentencing to the end that the defendant certainly knew the particulars for which he was being sentenced). In any event, however, a particularization of the accusation in the information was waived upon the entry of the plea of guilty upon arraignment, provided of course the information...