I am of the opinion that the jurisdiction of the district court "was not invoked" by the information, and that its amendment at the trial court's suggestion was unauthorized.
The Fifth Amendment to the Federal Constitution which has application only to crimes against the United States, provides *Page 208 among other things, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * *."
The Federal courts have consistently held that this requirement cannot be waived, that it is jurisdictional, and that a judgment and sentence of a Federal court is void as being without jurisdiction to enter it unless the indictment upon which the defendant is tried states an offense against the United States. If the question of the insufficiency of the indictment is raised after trial, or in habeas corpus proceedings, matters of form are waived (no prejudice being shown), and it is sufficient that necessary facts to constitute a crime appear in any form or by fair construction within the terms of the indictment. Hagner v. U.S., 285 U.S. 427, 52 S. Ct. 417, 76 L. Ed. 861; Holmgren v. U.S.,217 U.S. 509, 30 S. Ct. 588, 54 L. Ed. 861, 19 Ann.Cas. 778; Albrecht v. U.S., 273 U.S. 1, 47 S. Ct. 250, 252, 71 L. Ed. 505, in which it is said: "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." Ex parte Bain,121 U.S. 1, 7 S. Ct. 781, 30 L. Ed. 849; Oesting v. U.S., 2 Cir.,234 F. 304; Danaher v. U.S., 8 Cir., 39 F.2d 325; Nicholson v. U.S., 8 Cir., 79 F.2d 387; Moore v. U.S., 10 Cir., 56 F.2d 794; 27 A.J. "Indictment Information", Secs. 3 and 7.
Sec. 14 of Art. 2 of the Constitution of New Mexico provides: "No 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 * * *."
There is no difference in the meaning of this constitutional provision as it has reference to crimes committed against the State of New Mexico than that of the Fifth Amendment to the Constitution of the United States in its application to Federal crimes. This is held by innumerable cases, State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1; Whitted v. State, 188 Ark. 11,63 S.W.2d 283; Houston v. State, 203 Ind. 409, 180 N.E. 582; State v. McDonald, 178 La. 612, 152 So. 308; Commonwealth v. Smith,116 Pa. Super. 146, 177 A. 73; State v. Richmond, W. Va.,22 S.E.2d 537; People v. Patrick, 175 Misc. 997, 26 N.Y.S.2d 183; Jackson v. State, 71 Okla. Crim. 258, 110 P.2d 929; State v. Estabrook,162 Or. 476, 91 P.2d 838; Marvel v. State, 3 W.W. Harr. 110, 131 A. 317, 42 A.L.R. 1058; Edmonds v. State, 30 Ohio App. 195,164 N.E. 649; People ex rel. Battista v. Christian, 249 N.Y. 314,164 N.E. 111, 61 A.L.R. 794, and see Anno. at 797, 27 A.J. "Indictment Information" Sec. 7.
I conclude that the jurisdiction of the trial court to enter its judgment depended upon whether the information upon which the appellant was convicted stated an offense against the State of New Mexico; that the appellant by going to trial, without reserving for review any question relating to the mere form of the information, has waived all other questions. *Page 209
It is asserted that the information before it was amended did not state an offense, in that ownership of the sheep alleged to have been stolen was not stated; and that the amendment permitted was one of substance and not merely of form.
If the district attorney had originally added the five words later inserted in the information by permission of the court, it would have been in the statutory form, and this question, regarding which the members of this court are not in agreement, might have been avoided.
The information purports to charge the violation of the following statute: "Any person who shall steal, embezzle, or knowingly kill, sell, drive, lead, or ride away, or in any manner deprive the owner of the immediate possession of any neat cattle, horse, mule, sheep, goat, swine, or ass; * * * shall be deemed guilty of a felony, and on conviction thereof", etc. Sec. 41-419 N.M.Comp. 1941.
It was held by the Territorial Supreme Court in Wilburn v. Territory, 10 N.M. 402, 62 P. 968, that this statute is a special act, enacted for the protection of the owners of live stock; that it is so entitled, and is no part of, nor has any connection with, the general act defining the punishment of the crime of larceny.
We have held, inferentially at least, in a number of cases (Territory v. Valles, 15 N.M. 228, 103 P. 984; State v. Lucero,17 N.M. 484, 131 P. 491; State v. Roberts, 18 N.M. 480,138 P. 208; State v. Cason, 23 N.M. 77, 167 P. 283; State v. Parsons,23 N.M. 520, 169 P. 475,) that ownership is an element of the crime of larceny of live stock and must be alleged in the indictment; and this is the general rule. Thomas v. State, 96 Ga. 311,22 S.E. 956; Commonwealth v. Morse, 14 Mass. 217; State v. Ellis,119 Mo. 437, 24 S.W. 1017; Long v. State, Tex.Cr.App.,20 S.W. 576; People v. Cleary, 1 Cal. App. 50, 81 P. 753; Buffington v. State, 124 Ga. 24, 52 S.E. 19; State v. Wasson, 126 Iowa 320,101 N.W. 1125; Hughes v. State, 74 Miss. 368, 20 So. 838; State v. Potter, 195 Iowa 163, 191 N.W. 855; State v. Long, 278 Mo. 379,213 S.W. 436; Looney v. State, 80 Tex.Crim. R., 189 S.W. 954; State v. Jensen, 83 Utah 452, 30 P.2d 203; Von Tonglin v. State,200 Ark. 1142, 143 S.W.2d 185; People v. Smith, 341 Ill. 649,173 N.E. 814; State v. Flowers, 311 Mo. 510, 278 S.W. 1040; State v. Cohen, 105 N.J.L. 529, 147 A. 325; Talamentez v. State,123 Tex. Crim. 580, 59 S.W.2d 1084; State v. Behrens, 153 Wash. 280,279 P. 607; Webber v. State, 70 Ga. App. 95, 27 S.E.2d 411; Ex Parte Clark, 42 Cal. App. 574, 109 P.2d 407; Cassell v. State,76 Okla. Crim. 79, 128 P.2d 1016, 134 P.2d 372; Byrd v. State, 146 Fla. 686, 1 So. 2d 624; People v. Price, 46 Cal. App. 59, 115 P.2d 225; Carter v. State, 138 Tex.Crim. R., 137 S.W.2d 37; Johnson v. State, 186 Miss. 405, 191 So. 127; State v. Conley, Mo.,123 S.W.2d 103; State v. Akers, 106 Mont. 43, 74 P.2d 1138; Lovejoy v. State, 130 Neb. 154, 264 N.W. 417; State v. Phillpot, 222 Iowa 1334, 271 N.W. 617.
The majority apparently agree that the decisions of this court, and courts generally, *Page 210 have held that an indictment or information for the crime of larceny must charge ownership in some person, but that the general rule has been abrogated by certain rules promulgated by this court, as follows:
"Form of information. — The information may be in substantially the following form:
"In the (here state the name of the court) the ____ day of ____, 19__.
"The State of New Mexico vs. A.B.
"X.Y., ____ district attorney for the county of ____, accuses A.B. of (here charge the offense in one of the ways mentioned in section 42-607 — e.g., murder (assault with intent to kill, poisoning an animal contrary to section 31 of the Penal Code)) and charges that (here the particulars of the offense may be added with a view of avoiding the necessity for a bill of particulars)." Sec. 42-606, N.M.Comp. 1941 (Trial Court Rule 35-4407).
"The indictment or information may charge, and is valid and sufficient if it charges, the offense for which the defendant is being prosecuted in one (1) or more of the following ways: (a) By using the name given to the offense by the common law or by a statute. (b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged." Sec. 42-607, N.M.Comp. 1941, (Trial Court Rule 35-4408).
"When an indictment or information charges an offense in accordance with the provision of section 42-607, but fails to inform the defendant of the particulars of the offense sufficiently to enable him to prepare his defense, or to give him such information as he is entitled to under the constitution of this state, the court may, of its own motion, and shall, at the request of the defendant, order the district attorney to furnish a bill of particulars containing such information as may be necessary for these purposes; or the district attorney may of his own motion furnish such bill of particulars." Sec. 42-608, N.M.Comp. 1941, (Trial Court Rule 35-4409).
"Ownership. — (1) An indictment or information need contain no allegation of the ownership of any property, unless such allegation is necessary to charge the offense under section 42-607.
"(2) In charging an offense in which an allegation of ownership of property is satisfied by proof of possession or right of possession any statement in an indictment, information or bill of particulars which implies possession or right of possession is a sufficient allegation of ownership." Sec. 42-615, N.M.Comp. 1941 (Trial Court Rule 35-4416).
"An indictment or information need not state any matter not necessary to be proved." Sec. 42-618, N.M.Comp. 1941 (Trial Court Rule 35-4419). *Page 211
"No indictment or information that charges an offense in accordance with the provisions of section 42-607 shall be invalid or insufficient because of any defect or imperfection in, or omission of, any matter of form only, or because of any miswriting, misspelling or improper English, or because of the use of sign, symbol, figure or abbreviation, or because of any similar defect, imperfection or omission. The court may at any time cause the indictment, information or bill of particulars to be amended in respect to any such defect, imperfection or omission." Sec. 42-637 N.M.Comp. 1941 (Trial Court Rule 35-4442).
Sec. 42-641 (Trial Court Rule 35-4446) provides sixteen short forms of indictments and informations that may be used in cases in which they are applicable. The form for larceny is, "A.B. stole from C.D. one horse."
These rules, with others promulgated at the same time, constituting a code of criminal procedure, must be construed together.
The use of the prescribed forms in the preparation of indictments and informations is discretionary, but it can be seen that this court had in mind that ownership was an element of the offense.
According to Rule 35-4419, supra, the information "need not state any matter not necessary to be proved." Larceny is a crime against the possession of personal property and cannot be proved without proof of ownership (general or special) in some person, known or unknown.
Section 14 of Article 2 of this State's Constitution, supra, which provides that no 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 * * *" cannot be changed at the caprice of the Legislature, or by rules promulgated by this court; and we should not assume that such rules had that effect if any other construction is possible. Indeed Rule 35-4442, supra, prohibits the amendment of informations except in matters of form, which inferentially means the substance of a crime must be charged. If we can consistently say (which I doubt) that we may by rule change the meaning of the words "indictment" and "information" from their meaning as understood by the people of this state when they adopted the constitutional provision quoted, in 1924; we cannot so change the meaning as that the elements of a crime need not be charged therein.
The statute under which appellant stands charged, is special, and the crime charged is statutory. The value of the property stolen is not an element of the crime, as in common-law grand larceny; but irrespective of the value of the property stolen the statutory name for the crime is "grand larceny." Sec. 41-420 N.M.Comp. 1941.
According to Trial Court Rule 35-4408, supra,
"The indictment or information may charge, and is valid and sufficient if it *Page 212 charges, the offense for which the defendant is being prosecuted in one (1) or more of the following ways:
"(a) By using the name given to the offense by the common law or by a statute."
Obviously this way of describing the offense was not followed.
The second way is as follows: "By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense, or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged."
It is difficult to separate the "definition" of larceny of livestock from the other offenses named in the statute, and I will not attempt it. This court never intended that one could be held for a crime on a void charge. It appears from other of these rules that the name of the owner must be alleged. The form prescribed for larceny (A.B. stole from C.D. one horse), and Rule 35-4416 providing the manner in which ownership may be charged, strongly indicate that there was no intention that this essential allegation could be dispensed with.
I have not overlooked Trial Court Rule 35-4416, supra. The first paragraph has no application because the allegation of ownership is, and has always been, necessary in this state to charge the offense of larceny of livestock. The second paragraph does not apply because, while proof of possession satisfies the allegation of ownership, there is no statement in the information which implies possession or right of possession in any person.
We stated in State v. Roy, 40 N.M. 397, 60 P.2d 646, 657, 110 A.L.R. 1: "If an indictment or information be deemed insufficient, we have provided by rule that the defendant may call for a bill of particulars. This protects the rights of the accused. This bill of particulars must state as much as may be necessary to give the defendant and the court reasonable information as to the nature and character of the crime charged. This bill of particulars becomes a matter of record. The information and bill of particulars can be read together."
We did not intend to say that if an indictment or information is so defective as that it does not charge an offense, that a bill of particulars could remedy the information, notwithstanding it becomes a matter of record. The information and bill can be read together and do protect the defendant against all matters of form supplied by it. But if there is a total failure to state a crime in the information, it is not remedied by a statement of the deficiency in that regard in the bill of particulars.
This is evident from the following statements in the opinion in State v. Roy, supra:
"Certain elements of an information became early established as indispensable, viz.: (1) A statement of the particular crime of which the defendant is accused; (2) a statement of the act or acts done by the defendant constituting the crime. This was, *Page 213 andstill is, the established law in this jurisdiction. * * *
"An information or indictment is sufficient if from itslanguage and form those elements which the Constitutionguarantees to an accused are therein found." (Emphasis mine.)
We were discussing approvingly the sufficiency of an information that charged the crime of murder in the statutory short form, which is: "A.B. murdered C.D."
It is stated in the majority opinion, "Ownership of property stolen not being `of the essence of the crime', it would have been sufficient to have alleged merely that the defenadnt `committed the crime of larceny.'" In other words, an information charging that "the defendant stole" is sufficient. But why be so liberal with information to one charged with crime? Why would not it be sufficient to charge that the defendant "commited a felony"? Or to hide from him all possible information and simply charge that he "committed a crime." The district attorney could, under the form suggested by the majority, prove ownership in any one of hundreds of owners of sheep in Rio Arriba county. It would charge no specific crime. It is suggested that ownership could be supplied by a bill of particulars. It would be just as easy so to supply the information if the charge was that the defendant "committed a crime," or it could be so supplied without an indictment or information.
There being no information as required by the State Constitution to authorize the holding of the defendant to answer for a felonious crime, the judgment should be reversed and the cause dismissed.
SADLER, J., concurs.