{ "id": 2770406, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert VILLA, Jr., Defendant-Appellant", "name_abbreviation": "State v. Villa", "decision_date": "1973-08-22", "docket_number": "No. 1139", "first_page": "537", "last_page": "539", "citations": [ { "type": "official", "cite": "85 N.M. 537" }, { "type": "parallel", "cite": "514 P.2d 56" } ], "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": "62 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714703 ], "weight": 2, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0291-01" ] }, { "cite": "39 N.M. 142", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573413 ], "weight": 2, "year": 1935, "opinion_index": 0, "case_paths": [ "/nm/39/0142-01" ] }, { "cite": "17 A.L. R.3d 1181", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "year": 1968, "opinion_index": 0 }, { "cite": "55 N.M. 161", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582983 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0161-01" ] }, { "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": "67 N.M. 149", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715645 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0149-01" ] }, { "cite": "85 N.M. 208", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772333 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0208-01" ] } ], "analysis": { "cardinality": 322, "char_count": 4885, "ocr_confidence": 0.695, "pagerank": { "raw": 1.0674785254072814e-07, "percentile": 0.5587192535163247 }, "sha256": "ae3141cce9b64e068181e783d94d3564c78f7136436ae89fe25239b948ce5cb8", "simhash": "1:13daf022956a9548", "word_count": 804 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and HERNANDEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Gilbert VILLA, Jr., Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nThe appeal is concerned with the variance between the offense charged and the offense for which defendant was convicted iti a trial to the court without a jury. The indictment charged homicide by vehicle on the basis of reckless driving. Sections 64-22-1 and 64-22-3, N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2). The trial court found defendant guilty of \u201c. . . driving his automobile on the left side of the roadway within a legally designated no passing zone contrary to the provisions of Section 64\u2014 18-4, [64-18-14] ...\u201d N.M.S.A.1953 (2d Repl. Vol. 9, pt. 2).\nThe trial court convicted defendant of violating \u00a7 64-18-14, supra, on the theory that the \u201cno-passing\u201d violation was a lesser included offense. Defendant asserts, and the State agrees, that a violation of \u00a7 64-18-14, supra, is not a lesser included offense. We also agree that it is not a lesser included offense. State v. Trujillo (Ct.App.), 85 N.M. 208, 510 P.2d 1079, decided May 16, 1973.\nThe State did not rely on a lesser included offense theory. After the oral finding of guilt and oral pronouncement of sentence, but before entry of a written judgment, the State moved to amend the indictment by adding a second count. This second count would have charged defendant with a violation of \u00a7 64-18-14, supra. The trial court noted the pendency of this motion in entering its written \u201cJudgment and Sentence\u201d but did not rule on this motion.\nCould the State\u2019s motion, if granted, validate defendant\u2019s conviction? State v. La Rue, 67 N.M. 149, 353 P.2d 367 (1960) states: \u201c . . . a person cannot be convicted of an offense of which he is not charged. . . .\u201d Smith v. Abram, 58 N.M. 404, 271 P.2d 1010 (1954) states: \u201cThat a person may not be punished for a crime without a formal and sufficient accusation even if he voluntarily submits to the jurisdiction of the court cannot be questioned. Such is the undisputed law in all jurisdictions. . . .\u201d\nSections 41-6-37 and 41-6-39, N.M.S.A. 1953 (2d Repl. Vol. 6), subsequently repealed, were in effect at the time the indictment was filed in this case. Section 41-6-37(2), supra, pertains to variance between the \u201c . . . allegations of an indictment . . . which state the particulars of the offense . . . and the evidence offered in support thereof. . . .\u201d Under \u00a7 41-6-37(2), supra, the indictment may be amended to conform to the evidence. Section 41-6-39, supra, authorizes amendment of the indictment after verdict and before sentence is pronounced, \u201c . . . so as to state the particulars of the offense, as proved. . . . \u201d\nNeither \u00a7 41-6-37(2), supra, nor \u00a7 41-6-39, supra, apply to the situation in this case. Both sections go to amendment of the indictment to conform to evidence introduced in support of the charge made in the indictment. See State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951). Neither apply to the situation of first convicting a defendant of an offense without charging him with that offense and then moving to amend the indictment by adding that charge subsequent to conviction. Section 41-6-37(2), supra, and \u00a7 41-6-39, supra, do not authorize amendments to accuse a defendant of a crime different from the crime originally charged. Annot., 17 A.L. R.3d 1181, \u00a7 15 at 1223 (1968).\nAs stated in State v. Loveless, 39 N.M. 142, 42 P.2d 211 (1935):\n\u201c . . . [I]t was error for the court to instruct the jury that the defendant was on trial for an offense distinct from the one of which he was charged. Of what good would be the constitutional guaranty to the accused 'to demand the nature and cause of the accusation\u2019 [N.M.Const. Art. II, \u00a7 14] if the court may instruct the jury that the accused, is charged with an offense of which he is not charged? We regard it as fundamental that the accused must he tried only for the offense charged in the information. . . . \u201d (Our emphasis)\nThe State\u2019s motion to amend, even if granted, could not validate defendant\u2019s conviction.\nDefendant was not convicted of homicide by vehicle. Instead, he was impliedly found not guilty of that offense when he was erroneously found guilty of the \u201cno-passing\u201d offense on the theory that it was a lesser included offense. Defendant\u2019s \u201cno-passing\u201d conviction cannot stand because, at this point, he has never been charged with that offense. See State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957). The \u201cJudgment and Sentence\u201d is reversed. The cause is remanded with instructions to dismiss the homicide by vehicle charge, and for such further proceedings as may be appropriate.\nIt is so ordered.\nHENDLEY and HERNANDEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Fred Tharp, Jr., Public Defender, Clovis, for defendant-appellant.", "David L. Norvell, Atty. Gen., Lee Griffin, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "514 P.2d 56\nSTATE of New Mexico, Plaintiff-Appellee, v. Gilbert VILLA, Jr., Defendant-Appellant.\nNo. 1139.\nCourt of Appeals of New Mexico.\nAug. 22, 1973.\nFred Tharp, Jr., Public Defender, Clovis, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Lee Griffin, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0537-01", "first_page_order": 599, "last_page_order": 601 }