(dissenting).
Section 40A-29-3.1(A), N.M.S.A.1953 (Repl.Vol.1964, Supp.1969), set out in the majority opinion, merely increases the penalty to be imposed by “a separate finding of fact” after conviction and before judgment and sentence are imposed. It does mot provide a new or separate crime which ;grants a defendant trial by jury. See, State v. Knight, 75 N.M. 197, 402 P.2d 380 (1965); State v. Silva, 78 N.M. 286, 430 P.2d 783 (Ct.App.1967).
■ The uniform practice in the second judicial district is to enter, after conviction, a printed form pleading called “Judgment and Sentence.” By conviction in this case is meant the establishment of guilt by a verdict of the jury. State v. Larranaga, 77 N.M. 528, 424 P.2d 804 (1967). Before '“Judgment and Sentence” was entered, the trial court found that a firearm was used 'in the commission of the crime of statutory jape.
First, defendant contends the increase of the minimum and maximum sentence by five years denied him the right to trial by jux-y. This claim of error has no merit. The imposition of a sentence or increase in the penalty is not an essential element of the crime of statutory rape. “A sentence is not an element of the conviction; rather, the sentence is a consequence of the conviction.” State v. Ferris, 80 N.M. 663, 666, 459 P.2d 462, 465 (Ct.App.1969). The defendant had a trial by jury on the merits. He was not denied this right.
A “separate finding of fact” for an increased penalty is made from all the evidence introduced at the trial. The defendant was denied the right to a jui-y detei-mination of this finding.
The issxte is: Did the denial of jury determination of “a separate finding of fact” after conviction prevent the imposition of ..an increased penalty?
In my opinion, the defendant waived this question. The record shows that at the time for presentation to the court by the district attorney of a special interrogatory, defendant’s counsel stated he did not know the procedure at that time. When the trial court announced it was a matter for sentencing, no objections were made. Defendant had notice before conviction of the additional penalty. No request was made by defendant that the special interrogatory be submitted to the jury. Such requirement can be waived expressly or by implication. See, State v. Knight, supra.
Because of the importance of the question, the answer should be found. In the nine jurisdictions set forth in the majority opinion, none of the states, nor the United States, had statutes comparable with § 40A-29-3.1(A), supra. None of the opinions are applicable.
The language of the statute is clear that “a separate finding of fact” can be made by “the court or jury.” It does not say “the court and jury,” nor “the judge and jury.”
Where the statute provides that “the court shall determine the issue,” it means the “judge” and not the “judge and jury.” Howard v. State, 83 Nev. 53, 422 P.2d 548, 549 (1967); Campbell v. Superior Court, In and For County of Gila, 12 Ariz.App. 398, 470 P.2d 718 (1970).
The woi'd “or” as used above means that the • legislature granted an alternative choice in the determination of the special finding of fact. It may be done by the judge, who presides over the trial, or, if he chooses, or is requested to do so, he may submit the determination to the jury. This is the legislative intent. Pompano Horse Club v. State, 93 Fla. 415, 111 So. 801, 52 A.L.R. 51 (1927). If the legislature had intended a different construction, it would have used language similar to that in Supreme Court Rule 35(a)(2) [§ 41-23-35(a)(2), N.M.S.A.1953 (2nd Repl.Vol. 6, Supp.1972) :
. . . [T]he issue shall be determined in nonjury trials by the court and in jury trials by a special verdict of the jury.
The trial judge made a separate finding of fact that the defendant used a firearm in the commission of statutory rape. This was in accord with the statute.
Second, the defendant contends that since he was not charged in the indictment with a violation of § 40A-29-3.1(A), supra, the trial court erred in imposing the additional penalty.
Since the indictment was sufficient without reference to the penalty, any reference to the penalty in the indictment is surplus-age. State v. Ferris, supra; State v. Garcia, 80 N.M. 247, 453 P.2d 767 (Ct.App.1969).
The judgment and sentence of the trial court should be affirmed.