State v. Apodaca , 42 N.M. 544 ( 1938 )

The State, by its Attorney General, has filed a motion for rehearing upon the sole ground that its suggestion in its answer brief calling our attention to the fact that appellant had failed to make any assignment of errors as required by paragraph 1 of Rule XII of our Rules was not expressly passed on in the opinion of the court.

Our decision on the merits of the case is not challenged; on the other hand, it is approved. It is urged, however, that it would be beneficial to the Bench and Bar to have an expression of the court as to what constitutes an assignment of error, whether a motion for new trial may be substituted therefor, whether the court will review errors appearing on the face of the record irrespective of assignments, whether the requirement of assignment of errors may be waived by the filing of an answer brief by the appellee without filing a motion to dismiss the appeal. We consider it inappropriate to enter into a discussion of these interesting questions except insofar as is necessary to dispose of the present motion. We have re-examined the record and the original briefs and we observe in appellee's brief that immediately after stating that it has no objection to appellant's statement of the case nor to his statement of the facts, the following appears:

"Answers to Points Relied upon for Reversal

"Before stating our Answers to Points Relied upon by Appellant for Reversal, we call the court's attention to the fact that we are unable to find any assignment of errors either in the Praecipe (Tr. 73-74) or in Appellant's Brief in Chief as contemplated by paragraph 1 of Rule XII, Rules of the Supreme Court of New Mexico.

"Although Appellant lists four points in his brief, we believe that the third and fourth point substantially raise the same proposition and we shall therefore limit our answer to appellant's points to three rather than to four, as follows:"

It thus appears that appellant's points or contentions are intelligible. It is true that they were not entitled "Assignments of Error" but appellee was not misled. Earlier decisions indicate that if it is appellee's contention that no assignments of error have been made, the proper practice is to move to dismiss the appeal. Such a motion under our rules must be supported by separate briefs. See paragraph 2, Rule XVI, Supreme Court Rules. Furthermore, the suggestion of lack of assignments of error made in appellee's brief heretofore quoted was not further argued or presented. Had the able presentation now made by Mr. Federici, Assistant Attorney General, been incorporated in his answer brief on the merits, we would doubtless have expressly commented on the matter. We appraised the situation as a waiver of the failure to file or present formal assignments of error. We do not regard the omission to present formal assignments of error as jurisdictional where an attempt has been made to present points relied upon for reversal. If assignments of error are assailed as being insufficient, it is within the discretion of the court to allow an amendment thereof "in the furtherance of justice and on terms." See Rule XII, Sec. 1. Sec. 4 of Rule XVI also lends support to this view. It is as follows: "No motion to dismiss an appeal or writ of error, strike a bill of exceptions or otherwise dispose of any cause except upon its merits, where such motion is based upon other than jurisdictional grounds, will be granted except upon a showing, satisfactory to the court, of prejudice to the moving party, or that the ends of justice require the granting thereof. No such motion will be entertained unless filed before the movant has filed his brief on the merits."

What we have just said would, of course, be without force if the presentation of the assignment of errors is jurisdictional. In 3 Am.Jur., Appeal Error, § 695, after discussing the necessity for assignment of errors, it is said: "Under the liberal practice prevailing in some jurisdictions, plain errors not assigned may be reviewed."

See also 4 C.J.S., Appeal Error, § 1239, where it is said: "It is often held, either because of express exception to that effect or because the court has discretion in the matter, that an appellate court will consider plain errors or fundamental errors apparent on the face of the record even though they have not been assigned."

The Attorney General cautions us that we have not reserved the power in our rules to consider plain or fundamental errors, and says that the basis of the holding of the United States Supreme Court in Columbia Heights Realty Co. v. Rundolph, 217 U.S. 574,30 S. Ct. 581, 54 L. Ed. 877, 19 Ann.Cas. 854, to the effect that the court did not regard itself as under an absolute obligation to dismiss a writ of error or appeal because of the non-assignment of error where there appeared a plain error in the record, was the provision of a then existing rule of court as follows [page 583]: "When there is no assignment of errors, as required by § 997 of the Revised Statutes, counsel will not be heard, except at the request of the court; and errors not specified according to this rule will be disregarded; but thecourt, at its option, may notice a plain error not assigned orspecified", and that our rules do not contain such a reservation. However, we said in State v. Garcia, 19 N.M. 414,143 P. 1012, that the statutory rule requiring parties to take exceptions at the time a ruling is made and which prohibited the taking of exceptions in the Supreme Court to any proceedings in the district court, except such as shall have been expressly decided in that court, was a rule intended to be restrictive upon the rights of the parties, but that the Supreme Court possessed an inherent power to see that a man's fundamental rights are protected in any case, saying [page 1015]:

"* * * Where a man's fundamental rights have been violated, while he may be precluded by the terms of the statute or the rules of appellate procedure from insisting in this court upon relief from the same, this court has the power, in its discretion, to relieve him and to see that injustice is not done.

"The restrictions of the statute apply to the parties, not to this court. This court, of course, will exercise this discretion very guardedly, and only where some fundamental right has been invaded, and never in aid of strictly legal, technical, or unsubstantial claims. * * *"

This case has often been followed, and there is no opinion in our reports which has received more general approval.

Since this reserved power exists in the court, however guardedly we may choose to exercise it, it would appear that the presentation of assignments of error is not jurisdictional and so there is afforded a field for the operation of Sec. 4 of Rule XVI, quoted supra. We are not to be understood as holding that the exercise of the reserved power is limited to such situations as existed in State v. Garcia, supra. See Gonzales v. Rivera,37 N.M. 562, 25 P.2d 802.

As to the fundamental character of the error in the case at bar, we are confronted on the first page of appellant's brief with the assertion that the prosecuting witness in a statutory rape case was not shown to have been under the age of sixteen years at the time of the alleged offense. If that were true, then the crime charged was not committed.

It thus appears that the appellee, having filed its brief on the merits, without filing a motion to dismiss supported by separate briefs, is hardly in a position to urge the point now renewed.

Manifestly the appellee was not prejudiced in the case at bar by the defect complained of because its counsel was able to understand what appellant relied upon for reversal of the judgment. In Tharp v. City of Clovis, 33 N.M. 308, 265 P. 717, we declined to dismiss a case and affirm a judgment because of defectively stated assignments of error. We quoted with approval language of the Supreme Court of Minnesota, Calderwood v. Jos. Schlitz Brewing Co., 107 Minn. 465, 121 N.W. 221, replying to an attack on assignments of error as follows: "In view of the importance and public character of the questions involved, and of the tendency of current practice to consider the merits of an appeal, and not to dispose of it on mere technicalities, we feel constrained to overrule the defendant's objection."

That the case at bar is one of public character is apparent. That the tendency of current practice is to liberalize the procedure is undoubted and is manifested by our rules of appellate procedure in many instances. As was said in the Tharp Case, at one time just a little while ago we dispensed with assignments of error entirely. Again in State v. Vargas, 42 N.M. 1, 74 P.2d 62, we went into a matter not adequately presented by an assignment of error on account of general interest in a question of law thought important to be settled.

For over eighty years from the time of the promulgation of the Kearny Code, September 22, 1846, until repealed by an Act of March 14, 1927, Ch. 93, L. 1927, the law was that: "No assignment of error or joinder in error upon any appeal in any criminal case shall be required." Sec. 6 of the same Act amended Sec. 46, Ch. 43, L. 1917, so as to read as follows: "The procedure on appeals and writs of error in criminal cases shall be governed by the procedure on appeals and writs of error in civil cases except as otherwise specified by law or rule of the Supreme Court." This statute was unchanged and was adopted as a rule of this court. See Rule V, Sec. 3.

It has been said that: "* * * After a statutory system or policy has been long established and is well defined, it will not be lightly presumed to be departed from or abandoned." Lewis' Sutherland, Statutory Construction, 2nd Ed. § 581. We may not rely upon the historical background further than to say that we would probably be warranted in giving our rule a liberal application in a criminal case so as not to turn an appellant out of court for failure to present proper assignments of error if by other means he has invoked our review of errors of the trial court, which if not corrected would deprive him of his life or liberty.

The Attorney General calls our attention to the decision of the Iowa Supreme Court in Andrews v. Burdick, 62 Iowa 714,16 N.W. 275, holding that the requirement of an assignment of error may be waived, but stated [page 279]: "We are not to be understood as holding that the court may not require an assignment of errors, notwithstanding the waiver of the parties. The court may, upon its own motion, enforce the rule requiring the assignment, though waived by the parties." We approve this cautionary statement.

It is interesting to note that our Rules respecting assignment of errors as interpreted are in accord with the views expressed in the Report of the Committee on Simplification and Improvement of Appellate Practice made to the annual meeting this year of the American Bar Association, a portion of which is as follows:

"There is an additional reason for employing no assignment of error other than the statement of points in the brief when such a course is possible. Assignments of error are often treated by appellate courts as limitations upon the scope of the review, and no questions will be considered unless they are shown to be embraced within the formal assignments, even though they are plainly disclosed by the record, have been clearly raised by the appellant in his brief and argument, and the appellee has had full opportunity to answer them. Technical hazards of this kindshould not exist in a modern system of appellate procedure.

"We recommend that assignments of error shall be required prior to making up the record on appeal only when the appellant proposes to omit some portions of the proceedings and record of the trial court, and that in other cases errors as well as cross-errors shall be assigned only in the briefs in the form of points relied upon for reversal. This is the method adopted by the new Federal Rules. We also recommend that assignments of error made otherwise than in the briefs shall not constitutelimitations upon the scope of review except so far as may benecessary to protect parties from actual prejudice." (Emphasis ours.)

From all of the foregoing, we are constrained to deny the motion for rehearing, and it is so ordered.

HUDSPETH, C.J., and SADLER, BRICE, and ZINN, JJ., concur.