STATE V. VILLA, 1973-NMCA-125, 85 N.M.
537, 514 P.2d 56 (Ct. App. 1973)
STATE OF NEW MEXICO, Plaintiff-Appellee
vs.
GILBERT VILLA, JR., Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1973-NMCA-125, 85 N.M. 537, 514 P.2d 56
Appeal from the District Court of
Roosevelt County, Blythe, Judge
DAVID L. NORVELL, Attorney General, LEE
GRIFFIN, Ass't. Atty. Gen., Santa Fe, New Mexico, Attorneys for Appellee.
FRED THARP, JR., Public Defender, Clovis,
New Mexico, Attorney for Appellant.
WOOD, Chief Judge, wrote the opinion.
William R. Hendley, J., B. C. Hernandez,
J.
{*538} WOOD, Chief
Judge.
{1} The appeal is concerned
with the variance between the offense charged and the offense for which
defendant was convicted in 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 "... driving his automobile on the left side of the roadway
within a legally designated no passing zone contrary to the provisions of
Section 64-18-4, [64-18-14]..." N.M.S.A. 1953 (2d Repl. Vol. 9, pt. 2).
{2} The trial court convicted
defendant of violating § 64-18-14, supra, on the theory that the
"no-passing" violation was a lesser included offense. Defendant
asserts, and the State agrees, that a violation of § 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.
{3} The 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 § 64-18-14, supra. The
{*539} trial court noted the pendency of this
motion in entering its written "Judgment and Sentence" but did not
rule on this motion.
{4} Could the State's motion,
if granted, validate defendant's conviction? State v. La Rue,
67 N.M. 149,
353
P.2d 367 (1960) states: "... a person cannot be convicted of an offense of
which he is not charged...." Smith v. Abram,
58 N.M. 404,
271 P.2d 1010
(1954) states: "That 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...."
{5} Sections 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 "... allegations of an indictment...
which state the particulars of the offense... and the evidence offered in
support thereof...." Under § 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,
"... so as to state the particulars of the offense, as proved...."
{6} Neither § 41-6-37(2),
supra, nor § 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 §n 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, § 15 at 1223 (1968).
"... [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' [N.M. Const. Art.
II, § 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 be tried only for the offense charged in the information...."
(Our emphasis)
{8} The State's motion to
amend, even if granted, could not validate defendant's conviction.
{9} Defendant 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 "no-passing"
offense on the theory that it was a lesser included offense. Defendant's "no-passing"
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
"Judgment and Sentence" is reversed. The cause is remanded with
instructions to dismiss the homicide by vehicle charge, and for such further
proceedings as may be appropriate.
William R. Hendley, J., B. C. Hernandez, J.