{ "id": 5357823, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Raul Rocha VASQUEZ, Defendant-Appellant", "name_abbreviation": "State v. Vasquez", "decision_date": "1969-08-29", "docket_number": "No. 338", "first_page": "586", "last_page": "588", "citations": [ { "type": "official", "cite": "80 N.M. 586" }, { "type": "parallel", "cite": "458 P.2d 838" } ], "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": "58 N.M. 404", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587696 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0404-01" ] }, { "cite": "72 N.M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2856248 ], "weight": 2, "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/72/0274-01" ] }, { "cite": "49 N.M. 181", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841554 ], "weight": 3, "year": 1945, "opinion_index": 0, "case_paths": [ "/nm/49/0181-01" ] }, { "cite": "77 N.M. 79", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2803920 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0079-01" ] }, { "cite": "77 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805178 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0168-01" ] }, { "cite": "74 N.M. 642", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805520 ], "weight": 3, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0642-01" ] }, { "cite": "74 N.M. 365", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2797636 ], "weight": 4, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0365-01" ] } ], "analysis": { "cardinality": 336, "char_count": 6832, "ocr_confidence": 0.676, "pagerank": { "raw": 1.0477102390708569e-07, "percentile": 0.5526783607847408 }, "sha256": "e31800b1fde714eea4ae8a68e823fd11657bda6cd6a1b2bb35333554e2aab9e0", "simhash": "1:83d6741a5845b160", "word_count": 1081 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SPIESS, C. J., and OMAN, J., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Raul Rocha VASQUEZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nThe issue is whether the preliminary examination was a sufficient preliminary examination of the charge on which defendant was convicted. Defendant had marijuana in his possession. The information charged defendant with unlawfully possessing narcotic drugs in violation of \u00a7 54-7-13, N.M.S.A.1953 (Repl.Vol. 8, pt. 2). He appeals his conviction of this charge. He asserts his preliminary examination was on a complaint of violating \u00a7 54-5-14, N.M.S.A.1953 (Repl.Vol. 8, pt. 2). He claims he did not have a preliminary examination concerning a violation of \u00a7 54\u20147-13, supra. He contends that without a preliminary examination on a complaint of violating \u00a7 54-7-13, supra, the trial court was without jurisdiction to proceed against him on that charge.\nThe jurisdictional question is not a claim that jurisdiction was absent, initially, because of the asserted lack of a preliminary examination. The district court acquired jurisdiction over the criminal charge upon the filing of the information. State v. Vaughn, 74 N.M. 365, 393 P.2d 711 (1964). The jurisdiction so acquired can, however, be lost \u201c * * * by failure of the court to remand for a preliminary examination when its absence is timely brought to the attention of the district court. * * * \u201d State v. Vaughn, \u2019supra.\nHere the asserted absence of a preliminary examination was timely raised. Defendant did not ask that he be accorded a preliminary examination on the basis of violating \u00a7 54-7-13, supra. He asked for a dismissal of the information. Defendant\u2019s failure to move for an abatement does not, however, dispose of the jurisdictional claim. State v. Vaughn, supra, states that the absence of a preliminary examination may be raised in an \u201cappropriate manner\u201d and:\n\u201c * * * When violation of a constitutional right in the proceedings before the magistrate is brought to the attention of the trial court and found to exist, the accused\u2019s right and the court\u2019s duty is to abate the information until there has been a proper preliminary examination, and remand the accused to the magistrate for such examination unless it be competently waived. * * * \u201d\nSince the charge was by criminal information, defendant had a right to a preliminary examination. N.M.Const. Art. II, \u00a7 14. There was no waiver of that right. If defendant\u2019s right to a preliminary examination had been violated the trial court\u2019s duty was to abate the information until a preliminary examination was held. Otherwise, the trial court would have lost its jurisdiction over the charge.\nThe question is whether defendant\u2019s right to a preliminary examination had been violated. This issue arises because marijuana was held to be a narcotic drug in State v. Romero, 74 N.M. 642, 397 P.2d 26 (1964). The result was that we have two statutes involving the unlawful possession of marijuana\u2014\u00a7\u00a7 54-5-14, supra, and 54-7-13, supra. See State v. Tapia, 77 N.M. 168, 420 P.2d 436 (1966); State v. Chavez, 77 N.M. 79, 419 P.2d 456 (1966).\nDefendant asserts he had a preliminary hearing on a complaint charging him with violating \u00a7 54-5-14, supra, and did not have a preliminary hearing on a complaint charging him with violating \u00a7 54-7-13, supra. His reliance on the charge in the criminal complaint is misplaced. The information is not required to charge the identical crime stated in the complaint. Once a defendant appears before a magistrate for a preliminary hearing on a criminal complaint, \u00a7 41-3-12, N.M.S.A.1953 (Repl.Vol. 6) provides the magistrate is to conduct an \u201c * * * examination of the whole matter, * * State v. Melendrez, 49 N.M. 181, 159 P.2d 768 (1945) states:\n\u201c * * * if it appear that an offense has been committed, the punishment of which is not within the jurisdiction of the magistrate as a trial judge, and there is probable cause to believe the prisoner guilty thereof, the magistrate, without the necessity of further complaint, or further preliminary examination, shall commit or bail the accused to appear at the next term of the district court * (Emphasis added.)\nState v. Melendrez, supra, held a criminal information is sufficient if the crime charged in the complaint in the magistrate\u2019s court is kindred to that to which the accused is held to answer in the preliminary examination and the information is substantially in accord with the magistrate\u2019s commitment to district court (the bind over). Melendrez expressed no opinion as to whether \u201c * * some other degree of conformity between the preliminary proceedings and the information will suffice, * * Although it is urged that the situation here goes beyond the precise holding of Melendrez, we disagree. Rather, it is our opinion that the preliminary hearing in this case is sufficient under the Melendrez decision.\nThe criminal complaint charged defendant with possessing, planting, purchasing of cannabis indicia contrary to. \u00a7 54-5-14, supra. Cannabis indicia is marijuana. State v. Romero, supra. The charge which defendant was held to answer, as shown by the evidence at the preliminary hearing, was unlawful possession of marijuana. The charge in the criminal complaint was kindred to that to which defendant was held to answer.\nDefendant was committed or bound over to the district court for trial but the basis of the bind over is not stated. Defendant\u2019s appearance bond, however, makes it clear that the bind over included a \u201cpossession\u201d charge since the bond expressly refers to the crime of \u201cpossession\u201d. The information was substantially in accord with the magistrate\u2019s commitment.'\nThe criminal complaint charged defendant with unlawful possession of marijuana. He had a preliminary hearing and was held to answer to the charge of unlawful possession as a result of that preliminary hearing. The criminal information charged defendant with the same unlawful possession.\nHaving had a preliminary examination on the charge brought by the criminal information, we must determine the effect of the reference in the criminal complaint to \u00a7 54-5-14, supra. The criminal information referred to \u00a7 54-7-13, supra. The statutory reference in the criminal complaint did not result in defendant being deprived of his right to a preliminary examination since the offense of unlawfully possessing marijuana was sufficiently charged without regard to the statute. The reference to \u00a7 54\u20145-14, supra, was surplusage. See State v. Brown, 72 N.M. 274, 383 P.2d 243 (1963); Smith v. Abram, 58 N.M. 404, 271 P.2d 1010 (1954).\nThe judgment and sentence are affirmed.\nIt is so ordered.\nSPIESS, C. J., and OMAN, J., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Foster Windham, Carlsbad, for appellant.", "James A. Maloney, Atty. Gen., Santa Fe, Mark B. Thompson, III, Asst. Atty. Gen., for appellee." ], "corrections": "", "head_matter": "458 P.2d 838\nSTATE of New Mexico, Plaintiff-Appellee, v. Raul Rocha VASQUEZ, Defendant-Appellant.\nNo. 338.\nCourt of Appeals of New Mexico.\nAug. 29, 1969.\nFoster Windham, Carlsbad, for appellant.\nJames A. Maloney, Atty. Gen., Santa Fe, Mark B. Thompson, III, Asst. Atty. Gen., for appellee." }, "file_name": "0586-01", "first_page_order": 642, "last_page_order": 644 }