The defendant has filed a motion for rehearing, resting same upon two points claimed to have been erroneously determined in our former opinion. The first relates to the trial court's refusal to set aside the verdict because of asserted disqualification of a juror by reason of relationship to the prosecuting witness. A reconsideration of what we already have said on this subject, in the light of the new argument advanced, leaves us still satisfied of the correctness of our conclusion.
The second ground advanced persuades us that something more should be said in *Page 455 view of defendant's contentions. This ground relates to the trial court's action in permitting certain witnesses to testify whose names were not indorsed on the information when filed, in conformity with the requirement of 1929 Comp. § 35-4402, controlling at the trial of the offense charged. The names of all witnesses but one, whose testimony was objected to upon this ground, were placed on the information on March 22, 1935, although the name Mrs. Lazaro Vigil was subsequently changed to Helena Vigil, the same person. Defendant's counsel examined the information on the date mentioned. The trial began on April 1st, some ten days later, both the State and the defendant announcing "ready." We previously held this claim of error ruled by the reasoning of our opinion in State v. Rucker, 22 N.M. 275, 161 P. 337, dealing with a similar statute relating to indictments and were content to rest the decision upon that authority.
Defendant complains, however, that we failed to dispose of his contention that the statute mentioned was adopted from Oklahoma, as indicated in State v. Taylor, 33 N.M. 35, 261 P. 808, and that, as there held dealing with another section of the same statute, we adopted the construction previously placed upon it by the Criminal Court of Appeals of Oklahoma. He also reminds us that in State v. Jones, 34 N.M. 499, 285 P. 501, the mandatory character of this statute was urged but that we there found it unnecessary to pass upon the question. Steen v. State,4 Okla. Crim. 309, 111 P. 1097, decided prior to the claimed adoption, is relied upon as construing the statute to be arbitrary and mandatory and as giving it an effect which renders the trial court's ruling on this point in the case at bar reversible error.
It appears there are two statutes in Oklahoma upon this subject, one with reference to indictments (Snyder's Comp.L. Okla. § 6691; Okla.Comp.St. 1921, § 2550) upon which prosecutions for felonies were then based; and the other relating to informations (Snyder's Comp.L.Okla. § 6644; Okla.Comp.St. 1921, § 2511) governing prosecutions for misdemeanors. The statutes are not identical, and accordingly different effect in certain respects has been given them. Whitworth v. State, 32 Okla. Crim. 200,239 P. 930, and cases cited. But that the facts here shown would not warrant a reversal under either Oklahoma statute as construed in that State is abundantly shown by Oklahoma decisions since the Steen Case, both prior to and since the adoption. See Ostendorf v. State, 8 Okla. Crim. 360, 128 P. 143, 147; Star v. State,9 Okla. Crim. 210, 131 P. 542; Leigh v. State, 34 Okla. Crim. 338,246 P. 667; Hochderffer v. State, 49 Okla. Crim. 420, 295 P. 236; Shaw v. State, 53 Okla. Crim. 389, 12 P.2d 550.
In Ostendorf v. State, which was a prosecution upon informationf for a misdemeanor, the court was construing the identical statute which it is claimed we adopted. When filed, the information bore the names of only two witnesses. When called for trial, it bore the names of four additional witnesses with the record silent *Page 456 as to when they were placed upon it. Both sides announced ready for trial, the jury was sworn, the county attorney made his opening statement, defendant's counsel declining to make one, and the court directed the State to call its witnesses. Whereupon defendant's counsel moved to strike from the information the names of the four witnesses not there when filed because "not originally indorsed upon the information" when filed and "that they have not been indorsed thereon since the filing * * * by order of the court; but, if so done by order of the court, without notice to the defendant."
The county attorney then asked leave to indorse the names of these witnesses, to which defendant objected because the trial already had begun. The court overruled the objection and directed that the trial proceed.
The facts, if anything, are stronger in that case than in the one at bar, to support a ruling in defendant's favor. It is not there shown that defendant knew prior to trial that the State proposed to use these witnesses. Here most of them, if indeed not every one challenged, had testified at the preliminary hearing and defendant's counsel had inspected the information some ten days before trial and then observed the names of these witnesses indorsed upon it, the name of Mrs. Lazaro Vigil being subsequently changed to Helena Vigil, the same person. Yet under the stronger state of facts shown in the Oklahoma case the court held and said: "The names of the witnesses objected to were on the back of the information when the trial began. There is no claim made that the appellant was surprised, and did not know that the names of such witnesses were on the back of the information at the time when he announced ready for trial, and that he would not have announced ready for trial if this fact had been known to him, or that indorsing these names on the back of the information required the appellant to make any further preparation for trial, and that there was any evidence which he might obtain to counteract or impeach their testimony. There being no showing of any injury to appellant, or that he suffered any surprise in this matter, we think that the motion came too late."
It is not here claimed there was any surprise. No attempt was made, by withdrawal of the announcement of ready previously made and motion for continuance, to prepare to meet the testimony reasonably to be anticipated from these witnesses. Defendant rests his position squarely upon a demand for technical compliance with the statute. The trial court's denial of defendant's objection to the testimony of these witnesses was the equivalent of leave to indorse their names on the information. In Shaw v. State, supra, the Criminal Court of Appeals of Oklahoma, speaking of both statutes, said: "Sections 2511 and 2550, Comp.St. 1921, provide for the indorsing of the names of witnesses on informations in cases less than capital. This court has held many times in such cases that the names of *Page 457 additional witnesses may be indorsed at any time within the discretion of the court. Such indorsement is not error unless there is an abuse of this discretion. Nelson v. State, 5 Okla. Crim. 368, 114 P. 1124; Bigfeather v. State, 7 Okla. Crim. 364, 123 P. 1026; Star v. State,9 Okla. Crim. 210, 131 P. 542; Montgomery v. State, 19 Okla. Crim. 224,199 P. 222."
And so, wholly aside from the question whether in view of our own decision in State v. Rucker, supra, we should feel disposed to follow by adoption a construction of this statute contrary in principle to that given a similar statute in the Rucker Case, we hold this claim of error to be without merit. Accordingly the motion for rehearing will be denied, and it is so ordered.
HUDSPETH and BICKLEY, JJ., concur.
BRICE, and ZINN, JJ., did not participate.
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