State v. Johnson

COMPTON, Chief Justice.

The initial opinion filed herein having heretofore been withdrawn by order of the Court, the following is substituted therefor.

'Appellant was convicted by a jury in Eddy County of the crime of grand larceny and he appeals, asserting fundamental error. The information reads:

“C. N. Morris, Assistant District Attorney for Eddy County, New Mexico, accuses L. H. Johnson, alias Bill ..Johnson, of the crime of ‘Grand Lar- , ceny’, in that he did, on or about the ■ 15th day of February, 1953, in Eddy County, New Mexico, steal from the Warehouse of the A & A Equipment Company, owned and operated by Mort B. Aldridge, Carlsbad, Eddy County, ..New Mexico, property of the . said A & A Equipment Company, ex- . ceeding the value of $20.00, namely . one Maytag Automatic Washing Machine, valued in excess of $300.00, contrary to Sec. 41-4502, NMSA, 1941 Comp.”

It is first contended that the information charges the crime of “larceny from a warehouse”, as defined by § 40-45-6, 1953 Comp., and that the prosecution should have been for that offense, if at all. That the information is not skillfully drawn, is obvious; but, we are not impressed with the contention. Tested either by the common law or by statute, it sufficiently charges the crime of grand" larceny. Stripped of surplusage, it charges that L. H. Johnson, in the County of Eddy, State of New Mexico, on or about the 15th day of’ February, 1953, did steal one Maytag Washing Machine of the value of $300, the property of A & A Equipment Company. The additional averment is surplusage and its effect, if any, was merely to place an additional burden upon the State in proving the case. The information uses the common law name of the offense, “grand larceny”. It further particularizes the offense by referring to the section of the statute defining grand larceny, “§ 41-4502, 1941 Comp.” § 40-45-2, 1953 Comp.

In charging an offense, § 41-6-7, 1953 Comp., provides:

“(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.

‘ ifc * * * * *

“(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." (Emphasis ours.)

Compare Smith v. Abram, 58 N.M. 404, 271 P.2d 1010, where an incorrect section had been inserted in the information.

The offense was charged as having been committed on the 15th day of February, 1953. The information was filed January 4, 1954. Meanwhile, on June 12, 1935, § 41-4502, 1941 Comp, was amended by substituting $50 in lieu of $20. The trial court' instructed the jury that one of the. material allegations of the information to be established by the evidence beyond a reasonable doubt, was that the offense occurred on February 18, 1-953, or at some time within three years next preceding the date the information was filed. Clearly, there was a period from July 1, 1953 to January 4, 1954, that $20 could not have been made the basis of grand larceny. But the error was harmless. The evidence conclusively shows that the offense occurred prior to the effective date of the amendment. Moreover, the error was waived. The attention of the trial court was not called to the fact that it might be committing error, thus affording the court an opportunity to correct it. Section 21-2-1, 1953 Comp., Supreme Court Rule 20, subd. 1; Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231; State v. Knowles, 32 N.M. 189, 252 P. 987; State v. Layton, 32 N.M. 188, 252 P. 997; Blacklock v. Fox, 25 N.M. 391, 183 P. 402.

The alleged errors are made the basis of appellant’s claim of fundamental error. While the doctrine of fundamental error has its place in our jurisprudence, obviously, it has no application here. Seuderi v. Moore, 59 N.M. 352, 284 P.2d 672; State v. Garcia, 19 N.M. 414, 143 P. 1012.

The judgment will be affirmed, and it is so ordered.

LUJAN, SADLER and McGHEE, JJ., concur.