State v. Silva

• Decision Date: 23 June 1967
• Docket Number: No. 29,29
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Henry SILVA, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 783

430 P.2d 783

78 N.M. 286

STATE of New Mexico, Plaintiff-Appellee, v. Henry SILVA, Defendant-Appellant.

No. 29.

Court of Appeals of New Mexico.

June 23, 1967.

Reuben E. Nieves, Gore & Nieves, Clovis, for appellant

Boston E. Witt, Atty. Gen., Paul J. Lacy, Asst. Atty. Gen., Santa Fe, for appellee.

OPINION

OMAN, Judge.

Defendant has appealed from a judgment and sentence of the district court, entered pursuant to jury verdicts finding him to be the same person who had theretofore been convicted of the three felonies as alleged in the information charging him as an habitual offender.

Sections 40A--29--5 to --7, N.M.S.A.1953, provide for sentencing, prosecution, and procedures for prosecution of habitual offenders.

Defendant relies upon seven separate points for reversal. The first five of these points concern themselves primarily with attacks upon the information, and the remaining two points relate to claimed errors on the part of the trial court in admitting certain evidence. The points will be considered in the order of their presentation in the brief in chief.

In count 1 of the information it was alleged that the defendant had been convicted of 'Assault with a deadly weapon--Bernalillo County, New Mexico, October 5, 1963.'

After the jury had been impaneled and sworn, the State requested leave to amend to change the date of October 5, 1963 to April 6, 1964. The trial court observed that 'October 5 was, the arrest date of the defendant. The date of April 6 was the date that judgment and sentence was actually entered.' It is not apparent upon what the court based his observation, but he granted opportunity to defendant to voice his objections and present argument. Defendant contended that this last-minute change prejudiced his rights.

The court specifically announced that he would grant a delay if additional time were needed to prepare a defense by reason of the change, and asked if defendant requested any such delay. Defendant announced that he had no such request to make. The court granted the amendment.

We observe that an information under the habitual offender statutes does not purport to charge a criminal offense but constitutes only a charge of prior convictions by defendant, which if true, operates to enhance the penalty to be imposed. Lott v. Cox, 75 N.M. 102, 401 P.2d 93 (1965); State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965). The proceedings are, however, penal in nature, and , insofar as applicable, criminal procedures are to be followed. See State v. Lujan, 76 N.M. 111, 412 P.2d 405 (1966); State v. Tipton, 77 N.M. 1, 419 P.2d 216 (1966); Johnson v. Cox, 72 N.M. 55, 380 P.2d 199 (1963); State v. Knight, supra, 5 Wharton, Criminal Law and Procedure (Anderson) § 2221 at 441 (1957).

Defendant contends he was prejudiced by the amendment, and relies upon the provisions of § 41--6--37, N.M.S.A.1953, and upon the decision in State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951).

In State v. Ardovino, the defect was the failure of the information to allege a criminal offense under the statutes of the State of New Mexico, and it was more than a mere error in a date. Here the defendant has failed to demonstrate how he was in any way prejudiced by the amendment showing the correct date of his prior conviction in Bernalillo County. Although the trial court made it clear to defendant and his counsel that additional time would be granted to explore the possibilities of a defense, or to prepare for the presentation of any defense defendant might have, defendant advised the court he did not wish to request any delay, or additional time.

In State v. Krebs, 336 Mo. 576, 80 S.W.2d 196 (1935), it was appellant's contention that a certain date contained in the information was the date of his discharge from the penitentiary, and not the date of commission of a subsequent offense. Thus, he argued that the information was defective, because it failed to show that this subsequent offense was committed after his discharge from the penitentiary under his prior convictions. The Supreme Court of Missouri gave it as their opinion that the date in question referred to the date of the commission of the subsequent offense, and not to the date of his discharge from the penitentiary, but stated that it made no difference, because that part of the information concerned started out by expressly alleging that 'after the said discharge.'

Section 40A--29--6, N.M.S.A.1953, provides in part:

'If * * * it shall appear that a person convicted of a felony has previously been convicted of a crime amounting to a felony in this state, * * * it shall be the duty of the district attorney * * * to file an information charging the person as a habitual offender.'

The present case was conducted as a separate proceeding, as authorized by our statutes (Lott v. Cox, supra; State v. Tipton, supra), and it was expressly alleged in the information that 'Henry Silva * * * having been convicted of the following felonies.' This language was then followed immediately by the above-quoted language relating to the charge in question.

The amendment allowed by the trial court in no way changed the substance of the allegations concerning the previous conviction in Bernalillo County of a crime amounting to a felony. No prejudice having been shown as a result of the amendment, we find defendant's position under this point to be without merit.

Defendant next contends the information should have been quashed because, after reciting the felonies of which he had allegedly been convicted, it is alleged:

'And that Henry Silva is an habitual offender contrary to Section 40A--29--7, and should be sentenced pursuant to 40A--29--7, NMSA, 1953 Compilation, as amended.'

It is defendant's contention that he should have been charged, and could properly have been charged, only under the provisions of § 40A--29--5, N.M.S.A.1953, or under §§ 40A--29--5 to --6, N.M.S.A.1953.

As above stated, an information under the habitual offender statutes does not charge a separate offense. Section 40A-- 29--5, provides for enhanced sentences to be imposed on habitual offenders; § 40A--29--6, imposes the duty on the district attorney to prosecute habitual offenders; and § 40A--29--7, provides for the proceedings to be followed in the prosecution of habitual offenders.

There can be no doubt that defendant was clearly informed that he was being proceeded against as an habitual offender. We disagree with defendant that the information failed to meet the requirements of § 41--6--7, N.M.S.A. 1953. This section of our statutes provides:

'Charging the offense.--(1) The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one (1) or more of the following ways:

'(a) By using the name given to the offense by the common law or by a statute.

'(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

'(2) The indictment or information may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such indictment or information regard shall be had to such reference.'

Here the defendant was expressly informed that the State was contending he was 'an habitual offender,' and a reference to § 40A--29--7 shows it to be entitled 'Proceedings for prosecution of habitual offenders.' The court and the defendant were given notice of precisely what was intended to be charged.

Under his point 3 defendant contends:

'THE COURT ERRED IN OVERRULING DEFENDANT'S MOTION TO QUASH THE INFORMATION AS BEING UNCERTAIN, INDEFINITE AND INARTLY DRAWN, AND NOT CHARGING AS CONTEMPLATED BY THE STATUTE.'

The trial court conceded that the information was inartfully drawn, but observed that he thought the meaning is clear. We agree with the trial court. We do observe that the information is certainly no model of proper pleading, and would suggest that more care be taken in drafting and proofreading of informations prior to trial, rather than being confronted by constant attacks thereon for inaccuracies which could easily have been discovered by careful reading and a little study.

However, we have no trouble in finding the meaning of the information to be plain. Assuming the meaning to be plain, the information or indictment is not rendered insufficient because of improper grammatical construction. See State v. Cabodi, 18 N.M. 513, 138 P. 262 (1914). As provided in § 41--6--7, N.M.S.A.1953, above-quoted, the purpose of the information is to give the court and the defendant notice of what offense is intended to be charged.

Defendant next contends the information was defective and should have been quashed because it failed to name the court or courts in which he had previously bee convicted. The first conviction, as above shown, was alleged to have been in Bernalillo County, New Mexico. The second is alleged to have been in 'Curry County, New Mexico, Docket No. 5491, October 11, 1965.' The third is alleged to have been in 'Curry County, New Mexico, Cocket No. 5571, April 20, 1966.'

The offenses listed in the information, all of which are felonies, could only have been tried in the district courts of Bernalillo and Curry counties, because they are, and at all times since statehood have been, the only trial courts in New Mexico with jurisdiction over such causes. N.M.Const. art. 6, §§ 13 and 23; State v. Klantchnek, 59 N.M. 284, 283 P.2d 619 (1955); State v. McKinley, 53 N.M. 106, 202 P.2d 964 (1949). Our habitual offender statutes do not require that the court or courts in which a defendant has been previously convicted be named. See also People v. Carkeek, 35 Cal.App.2d 499, 96 P.2d 132 (1939); State v. Krebs, supra. We are...