State v. Shroyer.
| Citation | 49 N.M. 196,160 P.2d 444 |
| Decision Date | 03 April 1945 |
| Docket Number | No. 4829.,4829. |
| Parties | STATEv.SHROYER. |
| Court | Supreme Court of New Mexico |
OPINION TEXT STARTS HERE
Appeal from District Court, Rio Arriba County; James B. McGhee, Judge.
Rex A. Shroyer was convicted of larceny of two sheep, and he appeals.
Affirmed.
Evidence sustained conviction of larceny of sheep. 1941 Comp. § 41-420.
J. D. Mell and George E. Remley, both of Santa Fe, and Carl H. Gilbert, on motion for rehearing, for appellant.
Edward P. Chase, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.
Upon consideration of the motion for rehearing, the previous opinion is withdrawn and the following substituted MABRY, Chief Justice.
The appellant was convicted of the crime of larceny of two sheep and sentenced to serve a term in the state penitentiary. From the judgment of the district court this appeal was prosecuted.
Preliminary to a disposition of the merits of the case, it is necessary to determine certain procedural questions arising out of the preliminary hearing.
On September 16, 1941, a complaint was filed by the district attorney in the district court of Rio Arriba County in the First Judicial District, in which appellant was charged with the larceny of sheep in that county. A warrant was issued by the district clerk on the same date by order of the Honorable David Chavez, Jr., Presiding Judge of the First Judicial District, and the case was set for a preliminary hearing before Judge Chavez in the city of Santa Fe, Santa Fe County, in the First Judicial District. The appellant had been arrested without a warrant and lodged in the Santa Fe County jail prior to these proceedings. On October 1, 1941, the date named for the preliminary hearing, he appeared with the counsel before Judge Chavez, in the city of Santa Fe, and entered a plea of not guilty. He made no objection to the proceeding upon the ground that it was conducted in Santa Fe County, or upon any other ground. After hearing evidence Judge Chavez, sitting as a committing magistrate, ‘ordered, adjudged and decreed that the defendant be, and he is, hereby bound over to await the action of the district court of Rio Arriba County.’ His appearance bond was fixed at the sum of $500 in the order. The appellant filed a satisfactory bond and was thereupon discharged from custody.
Before a criminal information had been filed, charging the appellant with any crime, a disqualifying affidavit was entered against Judge Chavez, and upon stipulation of parties dated the 3rd day of June, 1941, Judge James B. McGhee, Presiding Judge of the Fifth Judicial District, was selected to try a case which did not at that time exist.
However, on June 10, 1942, a criminal information was filed in the district court of Rio Arriba County, purporting to charge appellant with the crime of grand larceny, as follows: ‘David W. Carmody, District Attorney for the county of Rio Arriba, accuses the defendant, Rex A. Shroyer, of the crime of larceny of sheep, and charges that said act occurred on or about the 15th day of August, A.D. 1941 in the county of Rio Arriba, State of New Mexico.’
On July 8, 1943, a motion was filed by appellant to set aside the order of the court entered on the first day of October, 1941, by Judge Chavez, holding the appellant to await the action of the district court of Rio Arriba County, and ‘to quash and set aside as null and void all matters in this cause subsequent to and based on the said order of the court,’ because it is asserted, that the preliminary hearing had before Judge Chavez in the city of Santa Fe, and the order holding appellant to answer before the
district court of Rio Arriba County to the charge of larceny of sheep ‘and all of the subsequent proceedings based upon the said hearing’ were void, in that the Honorable David Chavez, Jr., sitting as a committing magistrate in the county of Santa Fe was without jurisdiction to inquire into crimes committed in the county of Rio Arriba.
The appellant waived trial by jury and the case was set to be tried to the court on July 19, 1943. On that day the motion mentioned was overruled, the court stating: ‘I think when you appeared down there (in Santa Fe) in the preliminary with the defendant and then appeared up here in the district court and secured a postponement of the case, you waived the jurisdictional question.’
Thereupon the appellant moved to quash the information upon the following grounds:
‘1. That said information fails to show * * * any offense committed.
‘2. That said information fails to inform the defendant of any facts or information upon which they can determine if they are charged with larceny of one sheep or one thousand sheep, or as to the ownership of the brand of any sheep, that he may be charged with larceny of said sheep.
‘3. That said information fails to allege the ownership or right of possession in or to any animals or property.
This motion was overruled and the cause was set to be tried on the merits on July 26, 1943. On that date, prior to the introduction of testimony, the following appears in the record:
‘Mr. Mell: We want to again renew our Motion to Quash in the Shroyer case and add to the motion an allegation that the information does not follow the form as prescribed by Sec. 42-641.
‘Court: In what respect, Mr. Mell?
‘Mr. Mell; In 651 the definitions are given.
‘Court: I will allow you to amend the Information.
‘Mr. Livingston: The state now moves that the Information filed herein be amended to show that the defendant, Rex A. Shroyer is charged with the crime of larceny of two sheep belonging to Carlos Manzanares.
After the amendment by interlineation, the charging part of the information was in the following language: ‘David W. Carmody, District Attorney for the County of Rio Arriba, accuses the defendant, Rex A. Shroyer, of the crime of larceny of two sheep belonging to Carlos Manzanares and charges that said act occurred on or about the 15th day of August, A.D. 1941, in the County of Rio Arriba, State of New Mexico.’
The part in italics was interlined.
At the close of the State's case the following occurred:
‘Mr. Mell: If the Court please, we move at this time that the case be dismissed because the allegations in the complaint are that Mr. Shroyer stole two sheep belonging to Mrs. Carlos Manzanares.
‘Court: Carlos, I believe.
‘Mr. Mell: Carlos Manzanares, and it appears they were Mrs. Manzanares' sheep, if any were stolen.
‘Court: Overruled, he said they were his sheep ear marked as a matter of convenience.’
At the close of the case the following appears in the record:
‘Mr. Mell: At this time we move the Court for a verdict in favor of the defendant, and for the further reason, we want to recall and enter an objection to the Court allowing the District Attorney to amend his information at the time that the trial was called.
It is asserted that the district court had no jurisdiction to hold the appellant to answer, or to sentence him upon any charge pending before it herein, because (a) there was no legal preliminary hearing; (b) the jurisdiction of any examining magistrate was never invoked; (c) the jurisdiction of the district court was not invoked by the information; (d) the district court was without power to amend the information in a matter of substance; and (e) no preliminary examination was waived.
The question is whether the district court had jurisdiction to hold defendant to answer or to sentence him upon the charge pending before it, for any of the reasons just stated.
The jurisdiction of the trial court to try this case did not depend upon whether there was a legal preliminary hearing, or any preliminary hearing. Sec. 14 of Article 2 of the New Mexico Constitution provides ‘No persons shall be so held (for trial) on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.’ We will assume for the purposes of this case, but without deciding the question, that Judge Chabez, over timely objection, would have been without jurisdiction to enter the order binding appellant to appear before the district court of Rio Arriba County for trial. Nevertheless, the defendant's right, if any, to object on venue grounds was waived by his appearance and participation in the preliminary without raising the point. Moreover, quite consistent with defendant's failure to object, he later gave bond to appear before the district court; and, after disqualifying the judge, he expressly waived trial by jury; signed a stipulation for another judge to try the case and moved for and secured a continuance-all this before challenging the preliminary. The present objection comes too late. The defendant may waive the right to trial in the county in which the offense was committed, 22 C.J.S., Criminal Law, § 176, p. 267-and, for a stronger reason, the place of preliminary hearing.
It is urged that the jurisdiction of the district court ‘was not invoked’ by the information, and that its amendment at the trial court's suggestion was unauthorized and availed nothing. The amendment by interlineation changed the words ‘crime of larceny of sheep’ to read ‘crime of larceny of two sheep belonging to Carlos Manzanares.’
Sec. 14 of Art. 2 of the Constitution of New Mexico provides: ‘No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney-general or their deputies * * *.’
We conclude, as hereinafter to be shown, that the jurisdiction of the trial...
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