{ "id": 2747531, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert LUCERO, Defendant-Appellant", "name_abbreviation": "State v. Lucero", "decision_date": "1968-04-19", "docket_number": "No. 117", "first_page": "131", "last_page": "133", "citations": [ { "type": "official", "cite": "79 N.M. 131" }, { "type": "parallel", "cite": "440 P.2d 806" } ], "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": "34 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1556107 ], "year": 1929, "opinion_index": 0, "case_paths": [ "/nm/34/0112-01" ] }, { "cite": "37 N.M. 131", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1575382 ], "weight": 2, "year": 1933, "opinion_index": 0, "case_paths": [ "/nm/37/0131-01" ] }, { "cite": "70 N.M. 108", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2851778 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0108-01" ] }, { "cite": "73 N.M. 280", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5321495 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/73/0280-01" ] } ], "analysis": { "cardinality": 244, "char_count": 3349, "ocr_confidence": 0.671, "pagerank": { "raw": 1.2212174255593023e-07, "percentile": 0.5982142202112942 }, "sha256": "47afdd4c9cafd8f7b8e67b1b8311244045b07b1f5931e9b4f3894b5cdfa51ccb", "simhash": "1:0d57fc2bd169104d", "word_count": 542 }, "last_updated": "2023-07-14T18:21:18.946358+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and ARMIJO, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert LUCERO, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nConvicted of burglary, defendant appeals. He contends the grand jury indictment (1) erroneously stated the place of the offense and (2) erroneously named the owner of the residence which was burglarized, On this basis defendant asserts the indictment was fatally defective.\nThe indictment charged defendant with burglary contrary to \u00a7 40A-16-3, N. M.S.A.1953. Under \u00a7 41-6-7, N.M.S.A. 1953, an indictment is valid and sufficient if it identifies the crime charged by reference to the statute establishing the offense. State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963).\nIn addition to charging the offense, the indictment stated the place of the offense and named the owner of the property. Defendant concedes that these allegations were ' unnecessary. See \u00a7\u00a7 41-6-12 and 41-6-15, N.M.S.A.1953.\nSurplusage.\nIt being conceded that the allegations as to place and ownership were unnecessary, \u00a7 41-6-36, N.M.S.A.1953 is applicable. This section provides that unnecessary allegations of an indictment may be disregarded as surplusage.\nPlace of the Offense.\nThe indictment charged an offense under \u00a7 41-6-7, N.M.S.A.1953. Accordingly, the indictment is not to be held invalid or insufficient because of a \u201cmiswriting\u201d or similar defect. Rather, the indictment may be amended in respect to such defect. If defendant is prejudiced by any such dc-feet the court may postpone the trial. No appeal \u201cbased on any such defect\u201d is to be sustained \u201cunless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits.\u201d Section 41-6-37, N.M.S.A.1953.\nThe indictment stated the burglarized residence was 2211 Indian School Road. Asserting there was a typing error, the State moved to amend and show the address as 2311 Indian School Road. The motion was granted.\nAfter the amendment the place of the offense was correctly stated. Defendant did not ask for a postponement and has not shown that he was prejudiced by the amendment correcting the typing error. His contention concerning the place of the offense is without merit. See State v. Peke, 70 N.M. 108, 371 P.2d 226 (1962). Name of Owner.\nSection 41-6-20, N.M.S.A.1953, provides:\n\u201cIn an indictment * * * it is sufficient for the purpose of identifying any person other than the defendant to state his true name or to state the name, appellation or nickname by which he has been or is known, * * *.\u201d\nThe indictment named Yolanda Duran as the owner of the burglarized residence. When asked to state her name she answered \u201cYolanda Duran.\u201d Upon questioning, she testified that she was divorced, that her married name had been Romero and that she goes by both \u201cDuran\u201d and \u201cRomero.\u201d Thus, \u201cYolanda Duran\u201d is either her true name or a name by which she is known. The name is sufficient under \u00a7 41-6-20. The contention concerning the name of the owner is without merit. Compare State v. Russell, 37 N.M. 131, 19 P.2d 742 (1933); State v. Martinez, 34 N.M. 112, 278 P.210 (1929).\nThe judgment and sentence are affirmed.\nIt is so ordered.\nOMAN and ARMIJO, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Robert M. St. John, Albuquerque, for appellant.", "Boston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "440 P.2d 806\nSTATE of New Mexico, Plaintiff-Appellee, v. Gilbert LUCERO, Defendant-Appellant.\nNo. 117.\nCourt of Appeals of New Mexico.\nApril 19, 1968.\nRobert M. St. John, Albuquerque, for appellant.\nBoston E. Witt, Atty. Gen., David R. Sierra, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0131-01", "first_page_order": 163, "last_page_order": 165 }