{ "id": 5320768, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Albert GARCIA, Defendant-Appellant", "name_abbreviation": "State v. Garcia", "decision_date": "1968-02-23", "docket_number": "No. 92", "first_page": "777", "last_page": "781", "citations": [ { "type": "official", "cite": "78 N.M. 777" }, { "type": "parallel", "cite": "438 P.2d 521" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "213 F.2d 810", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 542754 ], "year": 1954, "opinion_index": 0, "case_paths": [ "/f2d/213/0810-01" ] }, { "cite": "78 N.M. 770", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5322151 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/78/0770-01" ] }, { "cite": "154 Neb. 895", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2613892 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/neb/154/0895-01" ] }, { "cite": "190 F.2d 16", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 481243 ], "opinion_index": 0, "case_paths": [ "/f2d/190/0016-01" ] }, { "cite": "212 P. 341", "category": "reporters:state_regional", "reporter": "P.", "year": 1923, "opinion_index": 0 }, { "cite": "28 N.M. 344", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842071 ], "year": 1923, "opinion_index": 0, "case_paths": [ "/nm/28/0344-01" ] }, { "cite": "82 A. 664", "category": "reporters:state_regional", "reporter": "A.", "year": 1912, "opinion_index": 0 }, { "cite": "85 Vt. 366", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 769856 ], "year": 1912, "opinion_index": 0, "case_paths": [ "/vt/85/0366-01" ] }, { "cite": "235 N.Y.S. 173", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1929, "opinion_index": 0 }, { "cite": "134 Misc. 228", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 791667 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/misc/134/0228-01" ] }, { "cite": "163 N.Y.S.2d 201", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1957, "opinion_index": 0 }, { "cite": "7 Misc.2d 859", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1016655 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/misc2d/7/0859-01" ] }, { "cite": "17 Cal.Rptr. 71", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1961, "opinion_index": 0 }, { "cite": "197 Cal. App.2d 58", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2318911 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/cal-app-2d/197/0058-01" ] }, { "cite": "199 N.E. 281", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1935, "opinion_index": 0 }, { "cite": "362 Ill. 142", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2594065 ], "year": 1935, "opinion_index": 0, "case_paths": [ "/ill/362/0142-01" ] }, { "cite": "124 N.W.2d 457", "category": "reporters:state_regional", "reporter": "N.W.2d", "year": 1963, "opinion_index": 0 }, { "cite": "21 Wis.2d 405", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8676257 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/wis-2d/21/0405-01" ] }, { "cite": "64 N.M. 59", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5344921 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/nm/64/0059-01" ] }, { "cite": "136 P. 47", "category": "reporters:state_regional", "reporter": "P.", "year": 1913, "opinion_index": 0 }, { "cite": "18 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4696467 ], "year": 1913, "opinion_index": 0, "case_paths": [ "/nm/18/0246-01" ] }, { "cite": "62 N.M. 170", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714022 ], "weight": 2, "year": 1957, "opinion_index": 1, "case_paths": [ "/nm/62/0170-01" ] }, { "cite": "85 Vt. 336", "category": "reporters:state", "reporter": "Vt.", "year": 1912, "opinion_index": 1 }, { "cite": "23 Ct.Cl. 218", "category": "reporters:specialty", "reporter": "Ct. Cl.", "case_ids": [ 3477935 ], "year": 1888, "opinion_index": 1, "case_paths": [ "/us-ct-cl/23/0218-01" ] }, { "cite": "75 A.2d 538", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1950, "opinion_index": 1 }, { "cite": "145 Me. 313", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 603264 ], "year": 1950, "opinion_index": 1, "case_paths": [ "/me/145/0313-01" ] }, { "cite": "140 S. W. 294", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1911, "opinion_index": 1 }, { "cite": "100 Ark. 409", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312282 ], "year": 1911, "opinion_index": 1, "case_paths": [ "/ark/100/0409-01" ] }, { "cite": "412 P.2d 232", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 5316673 ], "year": 1966, "opinion_index": 1, "case_paths": [ "/colo/159/0400-01" ] }, { "cite": "82 A. 664", "category": "reporters:state_regional", "reporter": "A.", "year": 1912, "opinion_index": 1 }, { "cite": "235 N.Y.S. 173", "category": "reporters:state", "reporter": "N.Y.S.", "year": 1929, "opinion_index": 1 }, { "cite": "134 Misc. 228", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 791667 ], "year": 1929, "opinion_index": 1, "case_paths": [ "/misc/134/0228-01" ] }, { "cite": "18 N.M. 246", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4696467 ], "year": 1913, "opinion_index": 1, "case_paths": [ "/nm/18/0246-01" ] } ], "analysis": { "cardinality": 748, "char_count": 15379, "ocr_confidence": 0.669, "pagerank": { "raw": 3.304040843512964e-07, "percentile": 0.872058950155009 }, "sha256": "817dc6283dff37c6bc6a9e03253b4894b0d0f148808f4d2c04ae043dcdc55eb7", "simhash": "1:3e6eb0237824dcc3", "word_count": 2605 }, "last_updated": "2023-07-14T21:27:10.359171+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN, J., concurs.", "ARMIJO, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Albert GARCIA, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nWhat is the meaning of \u201ccommitted\u201d in \u00a7 40A-22-8, N.M.S.A.1953 ? The statute reads:\n\u201cEscape from jail consists of any person who shall have been lawfully committed to any jail, escaping or attempting to escape from such jail.\u201d\nThe criminal complaint charged defendant with a petty misdemeanor. An arrest warrant was issued. Defendant was arrested and jailed. The jury determined that he got out of jail through the roof and convicted him of violating the above statute. Defendant appeals. ,(\nDefendant\u2019s position is that one cannot commit the statutory offense of \u201cescape from jail\u201d unless one had been \u201ccommitted\u201d to jail. By \u201ccommitted\u201d defendant means an order of a court or magistrate which directs a confinement. He asserts that such an order is lacking in his case.\nThe legislature has not defined \u201ccommitted\u201d as used in \u00a7 40A-22-8. We must determine the legislative intent as expressed in the words of the statute. Ex parte DeVore, 18 N.M. 246, 136 P. 47 (1913). Valley Country Club, Inc. v. Mender, 64 N.M. 59, 323 P.2d 1099 (1958), states:\n\u201cUnless'the contrary appears, statutory words are presumed to be used in their ordinary and usual sense and with the meaning commonly attributable to them.\u201d\nNothing to the contrary appearing, the legislature is presumed to have used the common meaning of \u201ccommitted.\u201d\nWhat is that common meaning? Web.ster\u2019s Third New International Dictionary Unabridged (1966) indicates that \u201ccommit\u201d is a very wide term; that it may have either of two common meanings. See State ex rel. Hake v. Burke, 21 Wis.2d 405, 124 N.W.2d 457 (1963).\nThese two common meanings are:\n(1) Delivery into another\u2019s charge; to place in confinement. In this sense \u201ccommitted\u201d means no more than lawful confinement in jail. People v. Emblen, 362 Ill. 142, 199 N.E. 281 (1935); In re Klein, 197 Cal. App.2d 58, 17 Cal.Rptr. 71 (1961).\n(2) An order of a court or magistrate directing a confinement. Schildhaus v. City of New York, 7 Misc.2d 859, 163 N.Y.S.2d 201 (1957); People ex rel. Wojek v. Henderson, 134 Misc. 228, 235 N.Y.S. 173 (1929); In re Edson, 85 Vt. 366, 82 A. 664 (1912). This is the meaning that defendant would apply.\nWe do not choose between these meanings. Under either meaning defendant was committed to jail.\n\u201cCommitted\u201d as placing in confinement. Under this meaning defendant was committed if lawfully confined in jail. The arrest warrant directed the arresting officer to bring defendant before the magistrate \u201cforthwith.\u201d Section 41-1-1, N.M.S.A. 1953. This means with reasonable promptness and dispatch; it does not mean that defendant must be taken before the magistrate \u201cregardless of the time of day or night.\u201d State v. Montgomery, 28 N.M. 344, 212 P. 341 (1923). Until taken before the magistrate he is lawfully confined. State v. Montgomery, supra. Being lawfully confined, defendant was committed tp jail.\nWe are not required to reject this meaning because of the rule that penal statutes are to be strictly construed. Although there is to be strict construction of the penal statutes, \u201cthey are not to be subjected to any strained or unnatural construction in order to work exemptions from their penalties.\u201d Ex parte DeVore, supra. If the meaning is doubtful, the spirit or reason of the law prevails over the literal meaning to prevent injustice. Accordingly, we may apply common sense in order to avoid an absurd result. Ex Parte DeVore, supra.\nTo hold that \u201ccommitted\u201d does not mean a lawful confinement would be a strict construction. Under this meaning, unless there were an order of confinement, one does not violate the statute by breaking out of jail. Such would be a strained construction. The reason and common sense of the.statute is that a person who is lawfully confined in jail is to be punished if he breaks jail. The rule of strict construction does not require us to hold otherwise.\n\u201cCommitted\u201d as an order of confinement. Under this meaning, defendant was committed if there was an order of the magistrate directing that he be confined. The arrest warrant directed that defendant be brought before the magistrate; it did not specifically order confinement in jail. However, under our statutes, such an order is implied.\nUpon issuance of an arrest warrant, \u00a7 41-4-1, N.M.S.A.1953, provides that the issuing official \u201cmust make an order to admit tiie * * * person for whom such warrant shall be issued, to bail.\u201d Section 41-4 \u2014 1 further requires that the issuing official \u201cshall * * * cause to be endorsed upon such warrant, authority to the officer making the arrest, to take bail for the appearance of the defendant.\u201d The justice of the peace complied with these requirements by fixing and endorsing on the warrant the amount of the bond.\nOne of the objects of bail is to relieve the accused of imprisonment before trial. United States ex rel. Heikkinen v. Gordon, 190 F.2d 16 (8th Cir.1951); State ex rel. Smith v. Western Surety Co., 154 Neb. 895, 50 N.W.2d 100 (1951). Section 41\u2014 4\u20141 affirmatively provides for release by giving bail. Though \u201cphrased in the affirmative, it implies a negative.\u201d Tijerina v. Baker, 78 N.M. 770, 438 P.2d 514, opinion issued January 22, 1968, and not yet reported . The implied negative is that the accused is jailed if bond is not given. The power to require bail connotes the power to imprison in the absence of such bail. Shrode v. Rowoldt, 213 F.2d 810 (8th Cir. 1954).\nThe order of the justice of the peace fixing the bond and authorizing the arresting officer to take the bail so fixed, impliedly ordered the officer to confine defendant in jail if bail was not given.\nSection 41^4 \u2014 2, N.M.S.A.1953, provides that if bail is not given the arresting officer is to immediately take the defendant before the officer issuing the arrest warrant. This means with reasonable promptness and dispatch. State v. Montgomery, supra. We are concerned here with the interval between the arrest and the appearance before the magistrate. During that time, the order fixing and authorizing the taking of bail is impliedly an order for the confinement of the accused, a commitment. Compare \u00a7 42-2-11, N.M.S.A.1953.\nWhether \u201ccommitted\u201d in \u00a7 40A-22-8, N. M.S.A.1953, means \u201cplacing in confinement\u201d or \u201can order of confinement,\u201d defendant was \u201ccommitted\u201d to jail when he left the jail through the roof.\nThe judgment and sentence are affirmed.\nIt is so ordered.\nOMAN, J., concurs.\nARMIJO, J., dissents.", "type": "majority", "author": "WOOD, Judge." }, { "text": "ARMIJO, Judge\n(dissenting).\nI am unable to agree with the majority opinion and would reverse the judgment and sentence and discharge appellant.\nSince no definition has been given the word \u201ccommitted\u201d as used in \u00a7 40A-22-8, N.M.S.A.1953, the intent of the legislature should be ascertained.\nAppellant was arrested on a warrant issued by a justice of the peace on a complaint signed by his wife and a peace officer charging the offense of assault, a petty misdemeanor. The warrant commanded the officer to forthwith bring appellant before the judge to answer the complaint. Appellant was not taken before the judge but instead was lodged in jail. Two days later following a head count of prisoners he was found to be missing. The record is silent as to when the officers intended to take appellant before the judge. \u2022- \u2022\nAt common law the offense of \u201cescape\u201d was a misdemeanor whereas other similar offenses such as \u201cprison breach\u201d were felonies. Ex parte DeVore, 18 N.M. 246, 136 P47, 49 (1913).\nThe earlier statute dealing with escape, Chapter 111, Laws 1959, now repealed, read as follows:\n\u201c40-41-2 ESCAPING FROM JAIL-PENALTY. \u2014 Any person who shall have been committed to jail, under any criminal charge, and shall, before the final trial of the cause for which he was imprisoned, or before the completion of the sentence, in case he shall be convicted in the court in which the charge may be pending, escape from jail, or from lawful custody of an officer, such person shall be guilty of a felony and upon conviction shall be punished by imprisonment in the state penitentiary for not less than one [1] year and not more than five [5] years.\u201d\nThe Legislature segregated the provisions of the former act into escape after being lawfully committed to any jail, \u00a7 40A-22-8, N.M.S.A.1953, and another dealing with escape from custody of an officer after lawful arrest by one charged with the commission or alleged commission of a felony, \u00a7 40A-22-10, N.M.S.A.1953. The violation of either statute is made a felony.\nObviously, a person in custody under lawful arrest for felony or alleged commission of a felony, would violate the provisions of \u00a7 40A-22-10, N.M.S.A.1953, if he escaped and the place whether from jail or elsewhere, would make no difference.\nSection 40A-22-8, N.M.S.A.1953, on the other hand, makes no distinction as to whether the commitment be for felony, misdemeanor or otherwise, and it would have been the simplest of tasks for the legislature had it intended to do so to have enlarged on the means by which the offense could occur simply by having added one or more words such as custody, confinement or other words of similar import following the use of the word \u201ccommitted\u201d in the statute.\nEscape, at common law, is defined as a departure from lawful custody with the intent to evade the due course of justice; Lewis v. People, Colo., 412 P.2d 232 (1966), and the very foundation of the crime of escape is the lawful confinement of the prisoner. Houpt v. State, 100 Ark. 409, 140 S. W. 294 (1911) and commitment by lawful authority is the very essence of the lawfulness of the detention. Smith v. State, 145 Me. 313, 75 A.2d 538 (1950).\nThe warrant under which the arrest was made, directed the officer to forthwith bring appellant bef\u00f3te the judge to answer the' complaint. No other orders either written or oral were issued by the court and the initial confinement in jail was custodial, simply as detention or for want of bail as distinguished from being under formal commitment.\nThe case of Smith v. State, supra, in construing the following provision of the Maine statute dealing with escape' from jail, which read in part: \u201cWhoever, being lawfully detained for any criminal offense in any jail * * * breaks or escapes therefrom, * * said:\n\u201cWhile in a colloquial sense it may be said that one who is arrested on a charge of crime is arrested for a criminal offense and that one who is detained in jail to await trial for criminal offense with which he is charged, or to answer to an indictment for a criminal offense if the same may be returned against him, is detained for a criminal office, [sic] he is not in fact detained in jail for the criminal offense nor is he in fact in custody for the crime. In view of the fact that this statute categorically provides that the sentence for its violation shall commence \u2018after the completion of any sentence imposed for the crime for which he was then in custody\u2019, and in view of the fact that the statute provides for a maximum penalty of imprisonment for a term of seven years, thus changing a common law crime from a misdemeanor to a felony, we believe that the purpose of the act was to provide for the punishment of those who, having been convicted of crime, escape from jail or other place of detention, except the State Prison, either before or after sentence. Had the legislature intended to include within the terms of the statute those charged with the commission of crime, or those committed in default of bail to await action by the grand jury, it could easily have employed apt language therefor.\u201d (Emphasis added)\nIn People ex rel. Wojek v. Henderson, 134 Misc. 228, 235 N.Y.S. 173, 178 it was said:\n\u201cA commitment is a warrant, order, or process, by which a court or magistrate directs a ministerial officer to take a person to prison or to detain him there.\u201d\nSuch process, such as a warrant issued by a magistrate, which on its face does not direct one to be committed to prison but only to be received into custody and safely kept for further examination is not a commitment. Gilbert v. United States, 23 Ct.Cl. 218, (1888).\nThe officers\u2019 authority to confine appellant to jail temporarily is not questioned, but being a ministerial officer he had no authority to commit a person to jail. In re Edson, 85 Vt. 336, 82 A. 664 (1912), it is stated as follows:\n\u201c* * * When an officer has one under legal arrest, by virtue of either civil or criminal process, or without process, where that can be dispensed with, and it is his duty to detain his prisoner until he can have him before some court, or may properly commit him to some reformative or penal institution, he may in the mean; time detain him in any proper and suitable place; and he may use the common jail as a suitable place of detention, and such detention is not deemed a commitment to jail.\u201d\nThe endorsement of bail requirement had the effect of authorizing the release of the prisoner upon the same being furnished and in its absence to confine.\nTo use the jail door as the point of demarcation from whence the offense could be committed under the facts of this case would indeed result in a strained construction of the intent of the legislature, since obviously no violation could occur if the escape took place after arrest but before incarceration.\nNote may be also made of the fact that the degree of force which may be used in apprehending a misdemeanant is far less than the force that may be used for apprehending felons or those charged with felony.\nSee Padilla v. Chavez, 62 N.M. 170, 306 P.2d 1094 (1957) in which the court said:\n\u201c* * * The same rule applies if a mis-demeanant is under arrest and breaks away and flees. The officer is not authorized to shoot or kill him merely to stop the flight. * * * \u201d\nOn the other hand, we find the legislature providing that homicide is justifiable when committed by a public officer when necessarily retaking felons after rescue or escape or fleeing from justice or to prevent escape from lawful custody or confinement. Section 40A-2-7, N.M.S.A.1953.\nA review of criminal codes of other jurisdictions, dealing with escape i.e., Arizona, Washington, Oklahoma, Texas, California and Wyoming disclose a definite distinction between a person escaping while held for felony or for misdemeanor in relation to the penalty imposed; for example see Arizona Revised Statutes, Vol. 5, \u00a7 13-393, Criminal Code which states:\n\u201cA'person who, being confined in a county jail, escapes therefrom, is guilty of a felony if the confinement is upon a charge, arrest, commitment or conviction for a felony, and is guilty of a misdemeanor if the confinement is upon a charge, arrest, commitment or conviction for a misdemeanor.\u201d\nThe conclusion I reach is that the intent of the word \u201ccommitted\u201d as used in the act in question was in its traditional and technical sense and that it was incumbent on the state to prove beyond a reasonable doubt the existence of a lawful commitment issued by proper authority as this element of the crime is a traversable fact.\nBy nothing which has been said has it been the intent of the writer to condone self help nor the act done by appellant in this case.", "type": "dissent", "author": "ARMIJO, Judge" } ], "attorneys": [ "Eugene E. Brockman, Tucumcari, for defendant-appellant.", "Boston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Sante Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "438 P.2d 521\nSTATE of New Mexico, Plaintiff-Appellee, v. Albert GARCIA, Defendant-Appellant.\nNo. 92.\nCourt of Appeals of New Mexico.\nFeb. 23, 1968.\nEugene E. Brockman, Tucumcari, for defendant-appellant.\nBoston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Sante Fe, for plaintiff-appellee." }, "file_name": "0777-01", "first_page_order": 817, "last_page_order": 821 }