State v. La Rue

• Decision Date: 10 June 1960
• Docket Number: No. 6671,6671
• Citation: 353 P.2d 367,67 N.M. 149,1960 NMSC 54
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Hawley N. LA RUE, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 367

353 P.2d 367

67 N.M. 149

STATE of New Mexico, Plaintiff-Appellee, v. Hawley N. LA RUE, Defendant-Appellant.

No. 6671.

Supreme Court of New Mexico.

June 10, 1960.

McAtee, Toulouse & Marchiondo, Albuquerque, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Hilario Rubio, Carl P. Dunifon, Asst. Attys. Gen., for appellee.

COMPTON, Justice.

This cause was tried to the court without a jury, and the appeal is from a judgment finding appellant 'guilty of operating a game of chance for money or thing of value, contrary to Section 40-22-2, N.M.S.A.1953 Compilation.' The information upon which appellant was brought to trial, however, charged that 'he did unlawfully * * * operate a game of chance for money or thing of value' in violation of the provisions of Sec. 40-22-1, 1953 Comp.

The pertinent provisions of the sections read:

'40-22-1. It shall hereafter be unlawful to play at, run, or operate any game or games of chance such as keno, faro, monte, passfore, passmonte, twenty-one, roulette, chuck-a-luck, hazard, fan tan, poker, stud poker, red and black, high and low, craps, blackjack or any other game or games of chance played with dice, cards, punch boards, slot machines or any other gaming device by whatsoever name known, for money or anything of value, in the state of New Mexico.'

'40-22-2. Any person who is the owner or possessor of any game mentioned in section 1 (40-22-1), or any person engaged in operating any such game, or knowingly supplying any such game with cards or dice or other device, or who is in actual possession and control as owner, lessee or otherwise of the premises upon which any such game is run or operated, or who shall knowingly lease premises so to be used, or who having leased such premises knowingly permits the same so to be used, shall be guilty of a misdemeanor, and upon conviction thereof, shall be punished * * *.' (Emphasis ours.)

Appellant first contends that he was charged with having committed one offense and having been convicted of another. We do not agree. The rule that a person cannot be convicted of an offense of which he is not charged is so well settled that citation of authority is deemed unnecessary; however, this rule has no application here. The former section merely defines certain acts, including the act of operating a game of chance for money or thing of value, as unlawful; the latter section provides the penalty. Clearly, the essential part of the judgment was finding the appellant guilty of operating a game of chance for money as charged in the information. Consequently, it is perfectly obvious the judgment would bar a subsequent prosecution for the same offense; such is the test. 14 A.L.R. at page 989; 23 C.J.S. Criminal Law Sec. 1397. It follows, therefore, that the inclusion in the judgment, 'Contrary to section 40-22-2, N.M.S.A.1953 Compilation' was mere surplusage and should be disregarded.

Appellant next challenges the sufficiency of the evidence to establish his guilt. On the night of December 20, 1958, two peace officers, Otis Haley and B. F. Ramsey, forerunners of a raiding party which was to follow, went to the 'Sharecroppers Club,' located 'down by the riverside' outside of Aztec. The club building was owned by 'Sharecropper Red' Henderson. It was a one-story building with a connecting basement. On the ground floor there was a cafe. In the cafe at the time there were several people, including the owner, Henderson. The peace officers informed Henderson that they were out for a good time that evening, but were advised by Henderson...