State v. Turner

• Decision Date: 13 February 1970
• Docket Number: No. 360,360
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest TURNER, Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 421

468 P.2d 421

81 N.M. 450

STATE of New Mexico, Plaintiff-Appellee, v. Ernest TURNER, Defendant-Appellant.

No. 360.

Court of Appeals of New Mexico.

Feb. 13, 1970.

Rehearing Denied March 16, 1970.

Certiorari Denied April 14, 1970.

Charles G. Berry, McAtee, Marchiondo & Michael, Albuquerque, for defendant-appellant

James A. Maloney, Atty. Gen., Santa Fe, Justin Reid, Asst. Atty. Gen., for plaintiff-appellee.

OPINION

SPIESS, Chief Judge.

The defendant, Ernest Turner, was charged by an amended indictment with the crimes of aggravated burglary (§ 40A--16--4(C), N.M.S.A. 1953), and aggravated battery (§ 40A--3--5(B), N.M.S.A. 1953; now amended, see 1969 pocket supplement to Vol. 6, N.M.S.A. 1953). Trial by a jury resulted in verdicts of guilty as to both charges. This appeal is from the judgment on the verdicts.

A number of points are relied upon for reversal. Point I, together with a subpoint (a), in substance assert error on the part of the trial court in refusing to quash Count I of the initial indictment, and in refusing to quash Count II of the amended indictment. It is also urged that the trial court erred in allowing the state to file an amended indictment.

The initial indictment with respect to Count I accused defendant of aggravated burglary contrary to § 40A--16--4(C), supra. Further, under this count it is charged that '* * * Ernest Turner did without authority or permission enter a dwelling, towit: (sic) the residence of Francine Skidmore, 308 Morningside Dr., Apt. 208, Albuquerque, New Mexico, and after said entry the said Ernest Turner did commit battery upon the person of Francine Skidmore.'

Count II of the amended indictment accused defendant of aggravated battery contrary to § 40A--3--5(B), supra. Under this count it is alleged that '* * * Ernest Turner did unlawfully touch or apply force to the person of Francine Skidmore with a deadly weapon, towit: (sic) a hard blunt, unknown object in a manner whereby great bodily harm or death could be inflicted.'

It is argued that neither of these counts charge a crime. The reasons given are that Count I of the initial indictment fails to allege an entry with intent to commit any felony or theft therein, and Count II of the amended indictment fails to charge intent to injure. Intent, it is argued, is an essential ingredient as to each crime and in the absence of an allegation of intent the crime was not charged.

The language of the statute upon which the indictments were based is material to a consideration of this point. Section 40A--16--4(C), supra, states:

'Aggravated burglary consists of the unauthorized entry of any * * * dwelling * * * with intent to commit any felony or theft therein and the person * * *

'C. commits a battery upon any person while in such place, or in entering or leaving such place.'

With respect to aggravated battery, § 40A--3--5(B), supra, provides:

'Aggravated battery consists of the unlawful touching or application of force to the person of another with intent to injure that person or another and which * * *

'B. is done with a deadly weapon, or in any manner whereby great bodily harm or death can be inflicted.'

In charging each offense the initial indictment and amended indictment employed the name given the offense by statute and specifically referred to the section and subsection of the statute which created the offense. The controlling law is expressed by § 41--6--7, N.M.S.A. 1953:

'(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.'

In our opinion, Count I of the initial indictment and Count II of the amended indictment are clearly sufficient under the statute which we have quoted. See State v. Campos, 79 N.M. 611, 447 P.2d 20 (1968); State v. Jones, 73 N.M. 459, 389 P.2d 398 (1964); State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963); State v. Cummings, 63 N.M. 337, 319 P.2d 946 (1957); State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968).

In State v. Lott, supra, the Supreme Court considering the effect of this statute, said:

'The purpose of a criminal information is to furnish the accused with such a description of the charge against him as will enable him to make a defense and to make his conviction or acquittal res judicata against a subsequent prosecution for the same offense, and to give the court reasonable information as to the nature and character of the crime charged. Ex parte Williams, 58 N.M. 37, 265 P.2d 359; State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1. The information did specifically charge the defendant with being an habitual criminal under the provisions of § 41--16--3, supra. Regard must be given to such reference to the statute in determining the sufficiency of an information. Section 41--6--7(2), N.M.S.A.1963; State v. Shroyer, 49 N.M. 196, 160 P.2d 444; Ex parte Williams, supra. C. f. State v. Ardovino, 55 N.M. 161, 228 P.2d 947. And, identification of the crime charged by reference to the section of the statute creating it was said in State v. Cummings, 63 N.M. 337, 319 P.2d 946, to be sufficient. Furthermore, the defendant may ask for and is entitled to a bill of particulars if he contends that the information is insufficient to enable him to prepare his defense or to give him any information to which he is entitled under the Constitution. A defendant failing, as here, to request a bill of particulars, if he deems the information insufficient, will not be heard on appeal to complain of a deficiency in the information. State v. Roy, supra. In addition, it is neither argued nor shown that defendant was prejudiced in his defense by the omission.'

We consider it appropriate here to say that defendant did not request a bill of particulars, nor has prejudice been argued or shown by reason of the omissions which he asserts render the counts insufficient to charge the crimes. Defendant cites the following cases as supporting authority: State v. Ocanas, 61 N.M. 484, 303 P.2d 390 (1956); State v. Ferguson, 56 N.M. 398, 244 P.2d 783 (1952); State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (s951); State v. Trujillo, 54 N.M. 307, 224 P.2d 151 (1950); State v. Grubaugh, 54 N.M. 272, 221 P.2d 1055 (1950); State v. Valdez, 51 N.M. 393, 185 P.2d 977 (1947); Territory v. McGrath, 16 N.M. 202, 114 P. 364 (1911); State v. Ortega, 79 N.M. 707, 448 P.2d 813 (Ct.App.1968); State v. Hinojos, 78 N.M. 32, 427 P.2d 683 (Ct.App.1967).

In our view, none of these cases lend support to defendant's position. Territory v. McGrath, supra, was decided before the adoption of § 41--6--7, supra. Ortega involved simply a question as to the sufficiency of evidence to support the charge; Hinojos involved the sufficiency of evidence to support the charge of burglary. Trujillo considered the sufficiency of evidence to support the verdict, and the propriety of a particular instruction and in addition, consideration was given to a motion for a new trial based upon newly discovered evidence. Ocanas dealt with the admission of evidence of prior convictions, the sufficiency of evidence to sustain the charge involved and a particular instruction. Grubaugh involved failure of proof of the crime charged and like the above cases did not relate to the sufficiency of an indictment or information.

While Valdez and Ardovino were both related to the sufficiency of an information, there is no indication that the information in either case made reference to the offense by name. Further, the information in Valdez, as in Ardovino, did not refer to the section of the statute creating the offense. In Ferguson the section number of the statute creating the offense sought to be charged was endorsed upon the back of the information. The text of the information itself failed to state facts sufficient to charge a crime. The court declined to hold that the endorsement of the section number creating the offense on the back of the information adequately charged the offense.

By subpoint A defendant asserts that '(t)he court committed reversible error by allowing the prosecution to file the amended indictment.'

Section 41--6--37, N.M.S.A. 1953, permits the amendment of indictments which charge an offense by providing that:

'(1) No indictment or information that charges an offense in accordance with the provisions of section 42--607 (41--6--7) shall be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling or improper English, or because of the use of sign, symbol, figure or abbreviation, or because of any similar defect, imperfection or omission. The court may at any time cause the indictment, information or bill of particulars to be amended in respect to any such defect, imperfection or omission.'

Defendant's argument appears to be based upon the proposition that the initial indictment failed to charge the particular offenses and consequently was not subject to amendment. In our opinion, as we have stated, the initial indictment did charge the offenses. Consequently, we do not consider the permission to amend as erroneous. Furthermore, the amended indictment tended to more clearly state the offenses charged by the initial indictment. Village of Deming v. Marquez, 74 N.M. 747, 398 P.2d 266 (1965).

Defendant's Point...