State v. VALDEZ
Decision Date | 22 October 1947 |
Docket Number | No. 5045,5045 |
Parties | STATE v. VALDEZ et al. |
Court | New Mexico Supreme Court |
Frazier & Quantius, of Roswell, for appellants.
C. C. McCulloh, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.
The appellants appealed from a judgment entered against them in the district court of Chaves County, by which they were sentenced to ninety days imprisonment in jail and assessed fines of $250 each. The information to which they pleaded guilty, omitting the formal part thereof, reads: '* * * did unlawfully operate a game of chance, to-wit: poker and dice, contrary to the form of statute in such cases made and provided, and against the peace and dignity of the State of New Mexico.'
On April 1, 1947, appellants were arraigned in the district court and entered their respective pleas of guilty. They were not represented by counsel although the court advised them of their rights in that respect. On April 2, 1947, appellants, through counsel filed a motion praying leave to withdraw their pleas of guilty, which was denied.
This information was undoubtedly attempted to be drawn under Section 41-2201, 1941 N.M.Comp., which provides, in part: 'It shall hereafter be unlawful to play at, run, or operate any game or games of chance such as * * * poker * * *orany other game or games of chance played with dice * * * for money or anything of value * * *.' (Emphasis ours)
Appellants contend, and we think rightly so, that the information does not charge a public offense, and, further, that although their pleas of guilty are equivalent to a conviction, yet, if the acts charged do not constitute a public offense, their pleas confess nothing. The omission is of matter of substance, and not a defect or imperfection in the matter of form only within the meaning of the statute and the fact that the information charged them with 'unlawfully' operating a game of chance did not alter the situation. State v. Newton, 16 N.D. 151, 112 N.W. 52, 14 Ann.Cas. 1035; see, also 22 Corpus Juris Secundum, Criminal Law, § 424, on page 658.
The pleader, by omitting the allegation that the operation of such game was 'for money or anything of value' failed to charge them with any offense. State v. Gray, 38 N.M. 203, 30 P.2d 278; State v. McMath, 34 N.M. 419, 283 P. 51;State v. Newman, 29 N.M. 106, 219 P. 794; United States v. Medina, 15 N.M. 204. 103 P. 976. The mere playing or operating of a game of chance, unless it be for money or something of value, does not violate the provisions of the Act. Ex parte Hamm, 24 N.M. 33, 172 P. 190, L.R.A.,N.S., 1918D, 694.
The District Court of Appeals (criminal), Third District, California, in the case of Ex parte Capanna, 45 Cal.App. 501, 187 P. 1077, 1078, which involved the same question before us under a similar statute, said:
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