{ "id": 1555208, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Bryan McCRARY and Bart Dewayne Burdick, Defendants-Appellants", "name_abbreviation": "State v. McCrary", "decision_date": "1982-01-07", "docket_number": "No. 5347", "first_page": "306", "last_page": "312", "citations": [ { "type": "official", "cite": "97 N.M. 306" }, { "type": "parallel", "cite": "639 P.2d 593" } ], "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": "30 Okl.Cr. 218", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 8852402 ], "weight": 2, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/okla-crim/30/0218-01" ] }, { "cite": "19 Cal.L.Rev. 330", "category": "journals:journal", "reporter": "Cal. L. Rev.", "year": 1930, "pin_cites": [ { "page": "645" } ], "opinion_index": 0 }, { "cite": "18 Cal.L.Rev. 324", "category": "journals:journal", "reporter": "Cal. L. Rev.", "weight": 2, "year": 1929, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "14 Ariz. 540", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 4828860 ], "weight": 2, "year": 1913, "opinion_index": 0, "case_paths": [ "/ariz/14/0540-01" ] }, { "cite": "4 Ariz.App. 185", "category": "reporters:state", "reporter": "Ariz. App.", "case_ids": [ 1240628 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/ariz-app/4/0185-01" ] }, { "cite": "48 N.M. 261", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560803 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/48/0261-01" ] }, { "cite": "62 N.M. 291", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714703 ], "weight": 3, "year": 1957, "opinion_index": 0, "case_paths": [ "/nm/62/0291-01" ] }, { "cite": "17 Idaho 453", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 8585909 ], "weight": 3, "year": 1909, "opinion_index": 0, "case_paths": [ "/idaho/17/0453-01" ] }, { "cite": "483 P.2d 1241", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1971, "opinion_index": 0 }, { "cite": "94 Cal.Rptr. 289", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1971, "opinion_index": 0 }, { "cite": "4 Cal.3d 660", "category": "reporters:state", "reporter": "Cal. 3d", "case_ids": [ 2319620 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/cal-3d/4/0660-01" ] }, { "cite": "253 N.W. 570", "category": "reporters:state_regional", "reporter": "N.W.", "year": 1934, "opinion_index": 0 }, { "cite": "214 Wis. 496", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8693259 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/wis/214/0496-01" ] }, { "cite": "93 N.M. 786", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568675 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0786-01" ] }, { "cite": "430 P.2d 399", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1967, "opinion_index": 0 }, { "cite": "78 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323864 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/78/0241-01" ] }, { "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" ] } ], "analysis": { "cardinality": 774, "char_count": 20515, "ocr_confidence": 0.78, "pagerank": { "raw": 7.895612950797388e-08, "percentile": 0.46052858680177877 }, "sha256": "f68357ad44b05a8daf3d54030a67dbe79e26062334ccb3941d0c54dffbaee23a", "simhash": "1:59525f6bb7519f03", "word_count": 3321 }, "last_updated": "2023-07-14T20:10:51.585150+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Bryan McCRARY and Bart Dewayne Burdick, Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nIs a prosecutor (in this case, an assistant district attorney), authorized to charge first degree murder in an information based on a magistrate\u2019s bind-over order for trial on second degree murder? No. We discuss (1) the applicability of State v. Melendrez, 49 N.M. 181, 159 P.2d 768 (1945); and (2) authority to charge.\nThe criminal complaint against each defendant charged murder in violation of \u00a7 30-2-1, N.M.S.A.1978. After a preliminary examination was held, the magistrate bound over each defendant for trial in the district court on the charge of \u201c2nd Degree Murder or lesser Offense\u201d. The prosecutor filed informations charging each defendant with murder in the first degree. Each defendant moved that the first degree murder charge be stricken from the information or, in the alternative, that the information be dismissed. After the cases were consolidated, the motions were denied. We granted an interlocutory appeal.\nState v. Melendrez\nIn Melendrez, the criminal complaint charged \u201c \u2018Assault With Intent to Kill\u2019 \u201d. After the preliminary examination, the justice of the peace issued a commitment (bind-over order) holding Melendrez on a charge of \u201c \u2018Assault With Intent to Murder and/or Maim\u2019 \u201d. The district attorney filed an information in two counts. Count I charged \u201c \u2018Assault With Intent to Murder\u2019 \u201d; Count II charged \u201c \u2018Assault With Intent to Maim.\u2019 \u201d Melendrez was convicted of Count I. On appeal, he contended that under N.M.Const., art. II, \u00a7 14 and New Mexico statutes,\nthe information filed by the district attorney must substantially charge the crime stated in the complaint filed with the justice of the peace ... or one which is included or embraced within it, and further contends that in case the crime charged in the information is not the one stated in the complaint ... or one included therein, the district court cannot over the objection of the defendant, legally proceed to try him for the offense charged in the information])]\n******\nIt appears that there are three views, influenced no doubt by the statutes of the various jurisdictions.\n1. The information must conform to the preliminary proceedings and charge an offense which is substantially the same as, or which is included in, that disclosed by the preliminary examination. [Hereinafter View No. 1.]\n2. On the other hand, some authorities require the information to conform with the complaint filed in the magistrate\u2019s court. [Hereinafter View No. 2.]\n3. Still other authorities require the information to conform with the commitment or order holding the accused to answer. [Hereinafter View No. 3.]\n******\n[W]e think the ... view numbered 3, supra, is the more reasonable and acceptable view under our statutes, and without expressing an opinion as to whether some other degree of conformity between the preliminary proceedings and the information will suffice, we hold that on the present record, where the crime charged in the complaint in the magistrate\u2019s court is kindred to that to which the accused is held to answer in a preliminary examination otherwise sufficient, and the information is in substantial accord with the magistrate\u2019s commitment, the district court committed no reversible error in overruling the legal exceptions to the proceedings mentioned in the early part of this opinion.\nDefendants rely on the statement in Melendrez that View No. 3 is the \u201cmore reasonable and acceptable view under our statutes\u201d.\nThe State points out that defendants overlook another statement in Melendrez:\nWhether it could be reasonably contended that the district attorney . . . might file an information charging an offense not named in the commitment [bind-over order] but supported by the evidence thus appearing to have been adduced at the preliminary examination is a question we do not decide.\nOur view of Melendrez is:\n1. The question to be decided was whether the preliminary examination was \u201csufficient to afford due process of law as a condition preliminary to the exercise of the power vested in the district attorney\" to file an information. Considering the kindred relationship between the complaint, the bind-over order and the information, there was no violation of due process.\n2. View No. 2 was rejected. \u201c[W]e do not think the decision of the prosecuting officers in the matter of the charge to be stated in information filed by them is limited by the single factor of the charge set forth in the complaint filed in the preliminary proceedings.\u201d\n3. Although View No. 3 was \u201cmore reasonable and acceptable\u201d, the validity of View No. 1 was not decided.\nMelendrez considered the relationship between the complaint, the bind-over order and the information in deciding a due process issue. This case does not involve the relationship of the complaint either to the bind-over order or to the information; this case involves the relationship of the bind-over order to the information. This case does not present a due process issue; the issue is the prosecutor\u2019s authority to file an information charging first degree murder when the bind-over order was for second degree murder. Melendrez does not answer that issue; Melendrez will be referred to subsequently because it provides guidance in deciding the issue presented.\nAuthority to Charge\nThe district attorney has no common law powers; \u201cThe constitution and statutes clearly prescribe and delimit his authority.\u201d State v. Reese, 78 N.M. 241, 430 P.2d 399 (1967); see Candelaria v. Robinson, 93 N.M. 786, 606 P.2d 196 (Ct.App.1980).\nWisconsin, without reference to any constitutional limitation, has held that the charge in the information is not limited by the bind-over-order. Hobbins v. State, 214 Wis. 496, 253 N.W. 570 (1934), states:\nSection 355.17, Stats., provides that the district attorney may file any information \u201csetting forth the crime committed, according to the facts ascertained on such (preliminary) examination and from the written testimony taken thereon, whether it be the offense charged in the complaint * * * or not.\u201d\nSection 361.18, Stats., provides that the magistrate shall commit or bind the defendant for trial \u201cif it shall appear that an offense has been committed and that there is probable cause to believe the prisoner guilty.\u201d\nThese statutes refute the contention of defendant upon this assignment of error. The district attorney in filing his information is not limited by the complaint. [Citations omitted.] Nor is he limited by the opinion of the magistrate as to the offense committed. Section 361.18, Stats., states the power of the magistrate and impliedly the limitation of his power. If it appears that any offense has been committed and that the defendant is probably guilty of any offense, he must hold the defendant for trial. That is all he is authorized to do. He is not authorized to restrict the action of the district attorney in filing an information or to limit the power of the circuit court in determining for what offense or upon what specific charges the defendant shall be tried. Cases from other jurisdictions having no such statutes as above cited are entirely pointless. The plea in abatement was rightly overruled.\nNew Mexico does not have a statute similar to quoted Wisconsin statute \u00a7 355.17. Historically, New Mexico has never had a similar statute. Compare N.M.Code 1915, \u00a7\u00a7 1857-1876; N.M.S.A.1929, \u00a7\u00a7 35-4401 through 35-4428 and 105-2201 through 105-2235; N.M.S.A.1941, \u00a7\u00a7 42-301 through 42-316 and 42-601 through 42-652; N.M.S.A.1953 (2d Repl. Vol. 6), \u00a7\u00a7 41-3-1 through 41-3-14 and 41-6-1 through 41-6-52. New Mexico Const., art. II, \u00a7 14, authorizes the district attorney to file an information, but there is neither statute nor rule prescribing or delimiting the district attorney\u2019s authority in filing an information.\nNew Mexico has, and has had, provisions similar to quoted Wisconsin statute \u00a7 361.-18. See the statutes discussed in Melendrez. Current R.Crim.Proc., Magis. Cts., 15(c) states: \u201cIf the court finds that there is probable cause to believe that the defendant committed an offense not within magistrate court trial jurisdiction, it shall bind the defendant over for trial.\u201d Compare R.Crim.Proc. 20(c). Melendrez points out that \u201can offense\u201d does not mean the offense charged in the complaint but \u201cthe offense found by the magistrate as a result of the preliminary examination to have been committed by the prisoner.\u201d We agree with Hobbins v. State, supra, when it states the magistrate is not authorized to restrict the action of a district attorney in filing an information; that, however, is not the question. The question is the district attorney\u2019s authority, not a restriction on that authority by a magistrate.\nCalifornia, on the basis of a constitutional provision and a statute, has held, with certain restrictions, that the charge in the information is not limited by the bind-over order. Jones v. Superior Court of San Bernardino County, 4 Cal.3d 660, 94 Cal.Rptr. 289, 483 P.2d 1241 (1971). The State suggests we adopt the California view. We cannot do so for two reasons. First, we do not have a similar statute. Second, our constitutional provision differs from the wording of the California constitutional provision. Compare N.M.Const., art. II, \u00a7 14 with the California provision quoted in Jones, supra. The California provision \u201cis not expressed in the negative or prohibitive form.\u201d See State v. McGreevey, 17 Idaho 453, 105 P. 1047 (1909). New Mexico\u2019s provision, quoted hereinafter, is expressed in the negative or prohibitive form.\nThe district attorney\u2019s authority in filing an information is the authority conferred by N.M.Const., art. II, \u00a7 14. The State suggests that authority includes filing an information on the basis of the evidence at the preliminary examination. Thus the State asks us to adopt View No. 1, stated in Melendrez. The Melendrez court characterized View No. 3, rather than View No. 1, as the more reasonable and acceptable view. View No. 1 raises problems from the point of view of good judicial administration because there would be factual problems as to whether the charge in the information did have support in the evidence at the preliminary examination. Compare Jones v. Superior Court of San Bernardino County, supra. An evidentiary hearing in the district court as to the factual validity of the charge in the information is not an attractive concept. Our answer, however, is not based on judicial administration concepts, but on the meaning of N.M.Const., art. II, \u00a7 14.\nA person may not be punished for a crime without a formal and sufficient accusation. State v. Chacon, 62 N.M. 291, 309 P.2d 230 (1957). Prior to the amendment of N.M. Const., art. II, \u00a7 14, effective January 1, 1925, the pertinent portion of that provision read:\nNo person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the militia when in actual service in time of war or public danger.\nThe permissible use of an information was stated in N.M.Const., art. XX \u00a7 20, which read:\nAny person held by a committing magistrate to await the action of the grand jury on a charge of felony or other infamous crime, may in open court with the consent of the court and the district attorney, to be entered upon the record, waive indictment and plead to an information in the form of an indictment filed by the district attorney, and further proceedings shall then be had upon said information with like force and effect as though it were an indictment duly returned by the grand jury.\nState v. Chacon, supra, states:\nIt is worthy of note that when we reached the point in this state of readiness to supply as an aid to greater convenience in prosecuting crimes the use of informations, our legislature deemed it desirable if, indeed, not necessary, to do so by submitting a constitutional amendment.\nAfter the amendment, effective January 1, 1925, the pertinent portion of N.M.Const., art. II, \u00a7 14, read:\nNo person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination. [The emphasized language was added by the amendment.]\nMelendrez states:\nIt must be assumed that when the constitutional amendment was proposed in 1923 and adopted at the election held November 4, 1924, providing that punishment of capital, felonious or infamous crimes might be presented by information filed by the district attorney or the attorney general or their deputies, provided the person informed against had previously had a preliminary examination before an examining magistrate, the preliminary examination and the relation of the state\u2019s attorneys thereto were understood to be such as were then in vogue under existing laws of the state. See Chase v. Lujan, 48 N.M. 261, 149 P.2d 1003.\nThe state of the law at the time of adoption of the amendment was that the district attorney could not prosecute a felony charge by information except as provided by N.M.Const., art. XX, \u00a7 20.\nThe issue is the extent of the authority conferred upon the district attorney, by the amendment to N.M.Const., art. II, \u00a7 14, to prosecute by information.\nConsidering a constitutional provision similar to the New Mexico amendment, Arizona held \u201cthat the information filed by the prosecuting officer can charge only the offense for which a defendant is held to answer in the order of commitment.\u201d State v. Branham, 4 Ariz.App. 185, 418 P.2d 615 (1966); see Fertig v. State, 14 Ariz. 540, 133 P. 99 (1913).\nState v. McGreevey, supra, states:\nAfter an examination of the various constitutional and statutory provisions of the different states on this subject, and the constructions placed upon them by the highest courts of the states, we conclude that the general and prevailing opinion is to the effect that where the statute or Constitution says that \u201cno information shall be filed against any person until such person shall have had a preliminary examination,\u201d or until \u201cafter a commitment by a magistrate,\u201d such provision has the effect of prohibiting the filing of an information for any other offense than that for which the accused was held by the committing magistrate. Such is clearly and unmistakably the meaning and intent of our constitutional provision. It was undoubtedly the intention of the constitutional convention, when inserting the clause \u201cafter a commitment by a magistrate,\u201d in section 8 of the Bill of Rights, to prohibit the trial of any person for a felony or other offense, not cognizable by a probate or justice court, until after he had been accorded a preliminary examination and been committed to answer therefor by the committing magistrate. It was intended by this prohibition to accord every accused person a hearing before a committing magistrate on the particular offense for which he was subsequently to be tried on information of the public prosecutor. It was likewise intended that the \u201cprobable cause\u201d for informing against the defendant and putting him on trial in the district court should first be found by the magistrate. The act of preparing the information was left to the prosecutor, and is a ministerial act the same as if he were preparing an indictment or presentment for the grand jury....\nThe authorities all agree that no formal or detailed charge or description of the offense is necessary in the complaint before the magistrate, and that all that is required is a general description or designation of the offense, so that the defendant may be given a fair opportunity to know, by a proffered preliminary examination, the general character and outline of the offense for which he is to have an examination. [Citations omitted.] It is also true that a preliminary examination on the charge of murder necessarily includes all the degrees of murder and manslaughter as well. An examination for the greater offense would include the lesser offenses which are necessarily and as a matter of law included within the offense named and charged. So in this case the examination on the charge of murder included the charge of manslaughter, and it was within the power of the magistrate to hold the defendant for manslaughter; but it was not within the power or authority of the prosecutor to file an information under that commitment for a higher or different offense than that for which he was committed.\nCalifornia, with a differently worded constitutional provision, has taken several positions on the issue. Jones v. Superior Court of San Bernardino County, supra, is the current position. The changes in position appear in law review comments cited in Melendrez; those comments are at 18 Cal.L.Rev. 324 (1929-30) and 19 Cal.L.Rev. 330, 645 (1930-31).\n18 Cal.L.Rev. 324, 326, states:\nThe notion has been prevalent in the cases that the constitutional or statutory guaranty of a preliminary examination and commitment before informations for felony may be filed was intended as a limitation on the prosecutor; that it was intended to take the place and perform the function of presentment by a grand jury; that therefore the magistrate has exclusive power to designate the offense for which the accused is to be tried. Thus .. . the prosecutor could not go outside the committing order in designating the offense in the information. [Citations omitted.] ... it should be observed that there are cases ... which use language to the effect that it is permissible for the prosecutor to charge the offense \u201caccording to the evidence disclosed at the preliminary examination.\u201d [Citations omitted.] This has been thought by some to allow the prosecutor to charge an entirely distinct offense from that charge by the magistrate. 1 CODE OF CRIMINAL PROCEDURE (Am.L.Inst.1928) 359. But the cases using such language are always careful to limit or qualify it with the statement that the prosecutor cannot charge an entirely distinct offense. The cases will thus allow the prosecutor some leeway in filing his information. He will not be held rigidly to the exact language used by the magistrate, but may alter the time, means, circumstances or the persons or things injured, as long as he charges substantially the same offense as that charged by the magistrate. Thus the prosecutor may charge robbery of A, although the magistrate charged robbery of B. But the prosecutor cannot charge rape when the committing order charges murder. This qualification allows the prosecutor to vary the charge in minor details to meet all possible evidence that may be adduced at the trial. For a very clear statement of the distinction see Payne v. State (1924) 30 Okl.Cr. 218, 235 Pac. 558, 559.\nThe above discussion points out that View No. 1 in Melendrez is a limited one; that the evidence at the preliminary examination may be utilized by the prosecutor to make changes in detail, but the evidence may not be utilized to charge an offense different from that designated in the bind-over order; the information must charge substantially the same offense as that charged by the magistrate.\nView No. 3 in Melendrez is that the information must conform with the order holding the accused to answer. Not only is this view \u201cthe more reasonable and acceptable\u201d, Melendrez, supra, N.M.Const., art. II, \u00a7 14, limits the authority of the district attorney, in charging a felony by information, to this view.\nBecause the informations were based on a preliminary examination resulting in a bind-over order for second degree murder, the assistant district attorney lacked authority to file an information charging first degree murder.\nThe order denying defendants\u2019 motions is reversed; the cause is remanded with instructions to strike the first degree murder charge from the informations.\nIT IS SO ORDERED.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "W. Gilbert Bryan, Bryan & Francoeur, Hobbs, for defendant-appellant McCrary.", "M. J. Collopy, Hobbs, for defendant-appellant Burdick.", "Jeff Bingaman, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "639 P.2d 593\nSTATE of New Mexico, Plaintiff-Appellee, v. Bryan McCRARY and Bart Dewayne Burdick, Defendants-Appellants.\nNo. 5347.\nCourt of Appeals of New Mexico.\nJan. 7, 1982.\nW. Gilbert Bryan, Bryan & Francoeur, Hobbs, for defendant-appellant McCrary.\nM. J. Collopy, Hobbs, for defendant-appellant Burdick.\nJeff Bingaman, Atty. Gen., Barbara F. Green, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0306-01", "first_page_order": 336, "last_page_order": 342 }