N.M. R. Crim. P. Dist. Ct. 5-204
N.M. R. Crim. P. Dist. Ct. 5-204
Committee commentary. - This rule was designed to make clear that criminal pleadings should not be held invalid for any technical defect, error, or omission. See e.g., State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct. App. 1968). The defendant must show that prejudice resulted from the allowance of an amendment to the pleading. State v. Padilla, 86 N.M. 282, 523 P.2d 17 (Ct. App.), cert. denied, 86 N.M. 281, 523 P.2d 16 (1974).
ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-005, effective July 1, 2017, limited the provision in Paragraph F to bonds posted by paid sureties, and revised the citation form in the reference to Rule 5-406 NMRA; in Paragraph F, after "exonerate a bond", added "posted by a paid surety", after "automatic exoneration", deleted "pursuant to Subparagraphs (1) or (2) of Paragraph A of" and added "under", after "Rule 5-406", added "(A)(1) or (A)(2)", and after "NMRA", deleted "of these rules". The 2005 amendment, effective September 1, 2005, added Paragraphs E and F relating to refiled proceedings and the effect on bail. Compiler's notes. - Paragraphs A and C of this rule are similar to Rule 52 of the Federal Rules of Criminal Procedure. Paragraph B of this rule is similar to Rule 7(d) of the Federal Rules of Criminal Procedure. The annotations listed under "Defects, errors and omissions" make no distinction between pre- or post- verdict motions or appeals.
For motion for severance of offenses or defendants, see Rule 5-203 NMRA. For pretrial motions, defenses and objections, see Rule 5-601 NMRA. For post-conviction motions, see Rule 5-802 NMRA. I. GENERAL CONSIDERATION. Amendment of indictment. - Where the defendant was indicted for possession of child pornography with intent to distribute under the 1993 version of Section 30-6A-3 NMSA 1978 which required intent to distribute, and the trial court found the defendant guilty of sexual exploitation by possession under the 2001 version of the statute which does not require intent to distribute because the time frames for the corresponding criminal acts fell under the 2001 version, the amendment of the indictment did not charge an additional or different offense and the defendant's substantial rights were not prejudiced. State v. Dietrich, 2009-NMCA-031, 145 N.M. 733, 204 P.3d 748. Amendment of indictment to add lesser included offense. - Where, based on the victim's statements to police, defendant was indicted for criminal sexual penetration of a minor; at defendants' trial, the victim's testimony varied from an assertion of penetration to an assertion that defendant made contact with the victim's private part; and the court permitted the State to amend the indictment to charge the lesser included offense of criminal sexual contact of a minor, defendant was not prejudiced by the amendment of the indictment nor did the amendment constitute fundamental error because defendant was on notice of the lesser included offense and could have anticipated that evidence of criminal sexual contact of a minor would be presented at trial. State v. Romero, 2013-NMCA-101, cert. denied, 2013-NMCERT-009. Changing the date on the charges listed on the indictment does not create an entirely new charge. State v. Dombos, 2008-NMCA-035, 143 N.M. 668, 180 P.3d 675, cert. denied, 2008-NMCERT-002. Generally. - 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 as it is regarded as fundamental that the accused must be tried only for the offense charged in the information. State v. Villa, 1973-NMCA-125, 85 N.M. 537, 514 P.2d 56. Information not required to charge identical crime as complaint. - The information is not required to charge the identical crime stated in the complaint. State v. Vasquez, 1969-NMCA-082, 80 N.M. 586, 458 P.2d 838 (decided under former law). Showing of prejudice required. - Subdivisions (a) and (d) (see now Paragraphs A and D) require a showing of prejudice due to a defect, error or omission in an indictment, and where defendant has not made such showing, the indictment is legally sufficient. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888 (1975). Sufficiency of criminal trespass charge. - Where defendant's indictment for criminal trespass charged him with violation of a specific statutory section, stating the common name of the offense, the date and the county, it sufficiently informed defendant of what he must be prepared to meet and did not deprive him of due process. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896, cert. denied, 87 N.M. 299, 532 P.2d 888 (1975). Waiver of preliminary hearing or defects. - Pleading to an information waives the right to a preliminary hearing or any formal defects therein. State v. Paul, 1971-NMCA-040, 82 N.M. 619, 485 P.2d 375, cert. denied, 82 N.M. 601, 485 P.2d 357 (decided under former law). Effect of failure to request bill of particulars. - A defendant failing, as here, to request a bill of particulars, if he deems the information insufficient, will not be heard on appeal to complain of a deficiency in the information. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855 (decided under former law). Advance notice. - Lack of advance notice concerning the motion to amend the information which erroneously cited the wrong statute is not a meritorious claim since the amendment can be made at any time and, absent a showing of prejudice (here, defendant was given 24 hours' notice), is not grounds for reversal. State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965 (decided under former law). Period of cross-examination of victims following amendment not prejudicial. - When, based on evidence presented in depositions of the victims, the information was amended to delete and amend certain charges without adding any charges, the failure to give the defendant the opportunity to cross-examine the victims on the charges in the amended information was not prejudicial. State v. Trujillo, 1995-NMCA-008, 119 N.M. 772, 895 P.2d 672. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976). Am. Jur. 2d, A.L.R. and C.J.S. references. - Failure to swear or irregularity in swearing witnesses appearing before grand jury as ground for dismissal of indictment, 23 A.L.R.4th 154. When is dismissal of indictment appropriate remedy for misconduct of government official, 57 A.L.R. Fed. 824. 71 C.J.S. Pleading §§ 286 to 293. II. DEFECTS, ERRORS AND OMISSIONS. Where the defendant covertly videotaped minor female victims using the bathroom; the indictment failed to specify which photographs provided the factual basis for each count of the indictment for sexual exploitation of children but three months prior to trial the prosecution notified the defendant of the images that provided the factual basis for each count of the charge, the defendant was not prejudiced. State v. Myers, 2009-NMSC-016, 146 N.M. 128, 207 P.3d 1105, overruling, in part, State v. Rendleman, 2003-NMCA-150, 134 N.M. 744, 82 P.3d 554. Delay in filing information. - Where the procedural defect is the delay in filing the information, absent a showing of prejudice from this delay, a prosecution under the information is proper. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582. Explanation as to resubmitted matter entails no prejudice. - Where the prosecutor does no more than explain why a matter, previously considered, is again being presented to the grand jury, no prejudice to the defendant exists. State v. Saiz, 1979-NMCA-062, 92 N.M. 776, 595 P.2d 414. Omission of date. - To the extent that the complaint against defendant, standing alone, could be considered defective as not including the date, any such defect was cured by the bill of particulars, alleging the date of violation, filed by the state. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43. Specified date of offense is a material allegation. - When the state elects to proceed on a specific date, and so alleges in the charging document, the date specified becomes a material allegation of the offense charged, thereby precluding the state from establishing guilt based on a different date. State v. Mankiller, 1986-NMCA-053, 104 N.M. 461, 722 P.2d 1183. Date of acts. - The information charging defendant with sodomy (now criminal sexual penetration) was void for failure to give him notice of the charges against him where it failed to state the date of the offense so as to specify which of three different acts subsequently testified to by the state's principal witness was charged, and defendant's conviction was reversed. State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949. Correction of date did not prejudice defendant. - Trial court did not err in allowing the indictment to be amended to correct the date of the alleged incident since the defendant was not prejudiced thereby. State v. Marquez, 1998-NMCA-010, 124 N.M. 409, 951 P.2d 1070, cert. denied, 124 N.M. 311, 950 P.2d 284. Failure to note date of filing. - Jurisdiction of district court is not lost by the failure of the trial court to note the date of filing on the information, where there is nothing showing defendant was prejudiced in his defense on the merits. State v. Vigil, 1973-NMCA-089, 85 N.M. 328, 512 P.2d 88. Time of offense. - An indictment or information is not required to allege the time of the offense. State v. Selgado, 1967-NMSC-147, 78 N.M. 165, 429 P.2d 363 (decided under former law). Misjoinder of offenses. - An information shall not be invalid or insufficient because of a misjoinder of the offenses charged. State v. Everitt, 1969-NMCA-010, 80 N.M. 41, 450 P.2d 927 (decided under former law). Meaning of "duplicity". - "Duplicity" is the joinder of two or more distinct and separate offenses in the same count. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. Failure to charge offense. - In prosecution for evasion of gross receipts tax, indictment that was defective, because it failed to inform defendants of the charge that they attempted to evade a tax owed by the corporation that they owned, could properly be amended under this rule to include that defendants were officers and owners of the corporation and committed the offenses in their capacity as officers and owners, without prejudice to the substantial rights of the defendants on the merits. State v. Dunlap, 1977-NMCA-083, 90 N.M. 732, 568 P.2d 258. Omission of entrustment from embezzlement charge. - A pleading expressly charging embezzlement does not fail by omitting entrustment as a factor. State v. Konviser, 1953-NMSC-057, 57 N.M. 418, 259 P.2d 785 (decided under former law). Hearing of evidence by jury where joinder of crimes. - The fact that the jury heard evidence for two separate crimes under one information does not in itself afford proof of prejudice, as such proof is usually present where joinder is properly allowed. State v. Brewer, 1952-NMSC-029, 56 N.M. 226, 242 P.2d 996 (decided under former law). Addition of new charges. - Defendant was prejudiced when trial court permitted state to amend indictment, after all evidence was in, to allege three methods by which offense of criminal sexual penetration in the second degree could be committed rather than only one method as alleged in the original indictment, since the jury was permitted by such amendment to convict the defendant under a theory which had not been tried. State v. Armijo, 1977-NMCA-070, 90 N.M. 614, 566 P.2d 1152. Amended information to correct omission of count, not vindictive prosecution. - Where two counts were added by amendment to an information after they had inadvertently been omitted from the magistrate's written bind over order and from the original information, the filing of the amended information following the defendant's successful motion for a mistrial did not amount to vindictive prosecution. State v. Coates, 1985-NMSC-091, 103 N.M. 353, 707 P.2d 1163. Reinstatement of deleted charge. - Where the taking of evidence had been concluded before counts 2, 3 and 4, charging various degrees of murder with a firearm, were stricken and any defense to the firearm charge had been presented in defending against the firearm charge in those counts, there was no prejudice in the reinstatement of the firearm charge. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811. Conviction under necessarily included offense. - Conviction of first-degree murder under the felony-murder rule for an attempt to commit a felony when the charge under the indictment alleged the completion of the felony did not infringe fundamental rights of defendant, since the attempt to commit the crime charged is a necessarily included offense. State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533 (decided under former law). Conviction for voluntary manslaughter under information charging first-degree murder will be sustained where defendant fails to object to charge. State v. Parker, 1930-NMSC-004, 34 N.M. 486, 285 P. 490 (decided under former law). Charging in the alternative. - There was nothing unfair about charging the defendant in the alternative with fraud or embezzlement, particularly since the charges arose out of the same events and carried the same penalties, and defendant was furnished with a most detailed statement of fact including the complete district attorney's file, police reports and a citation of authorities the state was relying on in support of each of the alternative charges. State v. Ortiz, 1977-NMCA-036, 90 N.M. 319, 563 P.2d 113. Statutory misreference. - A statutory misreference did not make the information fatally defective when the amendment, to correct the statutory misreference, was proper. State v. Wesson, 1972-NMCA-013, 83 N.M. 480, 493 P.2d 965. Where allegations, notwithstanding the misreference to offense, are sufficient to charge the offense they provide no grounds for error. State v. Holly, 1968-NMCA-075, 79 N.M. 516, 445 P.2d 393 (decided under former law). If the acts charged in an indictment are sufficient to constitute an offense under any statutes, a misreference, whether in the caption of the indictment or in the body thereof, to the statutes violated, does not render the indictment invalid. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010 (decided under former law). Motion to dismiss because of statutory misreference in indictment was frivolous where misreference was patent typing error. State v. Trujillo, 1978-NMCA-041, 91 N.M. 641, 578 P.2d 342, cert. denied, 91 N.M. 751, 580 P.2d 972. Miswriting. - Where the indictment charged an offense under the statutes the indictment is not to be held invalid or insufficient because of a "miswriting" or similar defect. Rather, the indictment may be amended in respect to such defect, however, if defendant is prejudiced by any such defect the court may postpone the trial. No appeal "based on any such defect" is to be sustained "unless it is affirmatively shown that the defendant was in fact prejudiced thereby in his defense upon the merits." State v. Lucero, 1968-NMCA-021, 79 N.M. 131, 440 P.2d 806 (decided under former law). Where original indictment charged a common name - kidnapping, and referred to a specific section which defined kidnapping, and where the deficiency in charging kidnapping in the original indictment was limited to the use of "confined" rather than "held to service" against the will, that deficiency could not, as defendant contended, be considered as a charge of false imprisonment because the original indictment did not attempt to frame a false imprisonment charge. Correcting the deficiency merely involved amendment of the indictment to cure a drafting defect, which is authorized in Subdivision (a) (see now Paragraph A). State v. Padilla, 1974-NMCA-029, 86 N.M. 282, 523 P.2d 17, cert. denied, 86 N.M. 281, 523 P.2d 16. Failure to name victim. - An information is not fatally defective in failing to name the victim of the statutory rape (now criminal sexual penetration) charged. Ex parte Kelley, 1953-NMSC-011, 57 N.M. 161, 256 P.2d 211 (decided under former law). Inserting defendant's first name by amending information after testimony was closed but before case went to jury, where there was no surprise or prejudice, was not error. State v. Martinez, 1929-NMSC-040, 34 N.M. 112, 278 P. 210 (decided under former law). Failure to include exact baptismal name of deceased was not a fatal variance where there was no doubt of his identity. State v. Martinez, 1929-NMSC-040, 34 N.M. 112, 278 P. 210 (decided under former law). Use of witnesses not appearing on original charge. - Failure to endorse informer's name as witness on indictment was not grounds for reversal on basis of surprise appearance since no claim was made that the testimony could not be reasonably anticipated and since defendants never asserted they desired a delay in order to rebut the surprise testimony. State v. Maes, 1970-NMCA-053, 81 N.M. 550, 469 P.2d 529, cert. denied, 81 N.M. 588, 470 P.2d 309 (decided under former law). Whether names of witnesses may be endorsed on the information during trial is a matter resting within the sound discretion of the court. It is not enough that a defendant claim surprise or prejudice in the calling of an adverse witness or one whose name does not appear upon the information charging him with crime. Nor is the mere admission of testimony of such witness error; rather, error follows from a denial of an opportunity to rebut the objectionable evidence. Here, defendant knew the day before that the witness would testify, knew the nature of the testimony, did not request postponement or continuance and admission of testimony was not an abuse of discretion. State v. Carlton, 1972-NMCA-015, 83 N.M. 644, 495 P.2d 1091, cert. denied, 83 N.M. 631, 495 P.2d 1078 (decided under former law). That the court granted the prosecutor's motion to endorse the information thereby adding the witness's name who had testified, in the absence of abuse of discretion, was not error. State v. Lujan, 1968-NMSC-088, 79 N.M. 200, 441 P.2d 497 (decided under former law). Incorrect address. - When after the amendment the address of the offense is correctly stated, defendant has not asked for a postponement and has not shown that he is prejudiced by the amendment correcting the typing error, contention that indictment is fatally defective is without merit. State v. Lucero, 1968-NMCA-021, 79 N.M. 131, 440 P.2d 806 (decided under former law). III. SURPLUSAGE. Proof of identity of victim is not surplusage. State v. Vallo, 1970-NMCA-002, 81 N.M. 148, 464 P.2d 567 (decided under former law). Address and ownership of burglarized residence. - The allegations as to address and ownership of burglarized residence are unnecessary, and may be disregarded as surplusage. State v. Lucero, 1968-NMCA-021, 79 N.M. 131, 440 P.2d 806 (decided under former law). IV. VARIANCES. Generally. - Variance between evidence and allegations was not sufficient grounds for acquittal where no prejudice was shown, and failure of defense counsel to object did not establish ineffective counsel. State v. Chacon, 1969-NMCA-112, 80 N.M. 799, 461 P.2d 932 (decided under former law). Under Paragraph C a variance is not treated as a different offense; a defendant would be able to preclude a second prosecution and avoid double jeopardy by demonstrating the variance. State v. Johnson, 1986-NMCA-084, 105 N.M. 63, 728 P.2d 473, cert. denied, 481 U.S. 1051, 107 S. Ct. 2185, 95 L. Ed. 2d 84 (1987). The defendant was properly convicted of resisting, evading or obstructing an officer, because the evidence supported the verdict of the jury to that charge, and his opportunity to prepare and defend against the charge was not impaired by the fact that such an offense varied from the crime charged in the criminal information, i.e., aggravated assault upon a peace officer. State v. Hamilton, 1988-NMCA-023, 107 N.M. 186, 754 P.2d 857. Failure to allege offense. - Information may be quashed where the acts alleged in the information and bill of particulars, when read together, do not constitute the offense which is charged. State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434 P.2d 77 (decided under former law). Variance of name. - When the indictment named Yolanda Duran as the owner of the burglarized residence and upon questioning she testified that she was divorced, that her married name had been Romero and that she goes by both "Duran" and "Romero," "Yolanda Duran" is either her true name or a name by which she is known and is sufficient identification for the purpose of identifying the owner of the burglarized residence. State v. Lucero, 1968-NMCA-021, 79 N.M. 131, 440 P.2d 806. Specified date of offense is material allegation. - When the state elects to proceed on a specific date, and so alleges in the charging document, the date specified becomes a material allegation of the offense charged, thereby precluding the state from establishing guilt based on a different date. State v. Mankiller, 1986-NMCA-053, 104 N.M. 461, 722 P.2d 1183. Variance of date. - Where, on two separate incidents, defendant directed the victim to perform oral sex on defendant's friend after the three injected methamphetamine together; defendant was charged with causing criminal sexual penetration during the commission of a felony; the information and the State's pretrial alibi notice did not allege precise dates of the incidents, but generally alleged that the offenses occurred on or about November 12, 2007; the affidavit for defendant's arrest warrant stated that the victim said the incidents occurred between Halloween and Thanksgiving; at trial, the victim testified that the victim was unsure of the dates of the incidents because the victim was high on methamphetamine; on cross examination, the victim testified that the incidents probably occurred a couple of weeks before Halloween; defendant presented the defense that defendant was absent from the state from November 2 to December 10, 2007; defendant used the victim's uncertainty about the exact dates of the incidents to attack the victim's credibility; and the district court allowed the State to amend the dates of the offenses to allege that they occurred on, about or between October 1, 2007 and November 22, 2007, defendant was not prejudiced by the amended date description and defendant waived any claim of prejudice when defendant attempted to exploit the victim's uncertainty about the dates. State v. Stevens, 2014-NMSC-011. Variance of date. - Although the complaint charged that a sheep slaughter without inspection occurred on or about March 17, 1976, the bill of particulars stated the killing occurred on March 17, 1976, and the proof at trial was that the slaughter occurred on March 16, 1976, there was nothing showing the variance prejudiced defendant's rights. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43. Variance of ownership. - Where the amendment of the information charging larceny was made to conform to the evidence, that three people instead of one owned the trailer involved, the trial court was of the opinion that the defendant was not prejudiced thereby, especially since defendant made no request for a continuance or postponement and did not show that he was in fact prejudiced by the amendment. State v. Parker, 1969-NMCA-056, 80 N.M. 551, 458 P.2d 803, cert. denied, 80 N.M. 607, 458 P.2d 859 (decided under former law). Variance in verb tense. - In a criminal fraud case, the defendants' argument that the instruction using the words "would pay" constituted a material variance from the language of the indictment using the words "were paying," was without merit. State v. Crews, 1989-NMCA-088, 110 N.M. 723, 799 P.2d 592. Amendment to add alternative murder theory. - Allowing the state to amend the indictment to add the charge of depraved mind murder did not add a different offense, but rather added an alternative theory of first degree murder, and defendant was thus not prejudiced by the amendment. State v. Lucero, 1998-NMSC-044, 126 N.M. 552, 972 P.2d 1143. Amendment to add predicate felonies to felony murder charge. - Where defendant was charged by indictment with felony murder; the indictment listed attempted murder and kidnapping as predicate felonies and stated that the defendant murdered the victim while in the commission of attempted murder or kidnapping; after the conclusion of the state's evidence, the district court permitted the state to include the predicate felonies of aggravated assault with a deadly weapon against defendant's friend and an individual who assisted the friend; the individual who assisted the friend was not identified in the indictment as a victim of any of the predicate felonies; defendant was also charged by indictment with attempted murder of the friend and aggravated assault with a deadly weapon against the friend and the individual who assisted the friend; the attempted murder and the aggravated assault charges arose from the same underlying conduct as the felony murder; and defendant was aware that defendant had to defend against the aggravated assault charge with respect to the individual who assisted the friend and had notice that the victim's murder occurred while in the commission of the attempted murder and aggravated assault against the friend, defendant's substantial rights were not prejudiced by the addition of the predicate felonies. State v. Branch, 2010-NMSC-042, 148 N.M. 601, 241 P.3d 602. Amendment charging new offense not permitted. - Paragraph C of this rule does not authorize the trial court to permit an amended information that charges defendant with an additional or different offense. State v. Roman, 1998-NMCA-132, 125 N.M. 688, 964 P.2d 852. No prejudice by amendment where defendant on notice. - There is no surprise to the defendant as a result of an amendment of an indictment where he is on notice from the beginning that he must defend against each element originally alleged. State v. Vialpando, 1979-NMCA-083, 93 N.M. 289, 599 P.2d 1086, cert. denied, 93 N.M. 172, 598 P.2d 215. Effect of jury verdict on variance. - Variance between indictment and proof offered at trial as to the name and address of the party and place burglarized is not jurisdictional as the error can be cured by verdict of the jury. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973); State v. Montgomery, 1923-NMSC-001, 28 N.M. 344, 212 P. 341 (cases decided under former law). V. EFFECT. Generally, as to deficiencies raised through habeas corpus. - In habeas corpus proceeding the information or indictment under which a petitioner was sentenced is not open to review on grounds of deficiencies therein on claim embezzlement charge failed to allege value or property embezzled. Such proceeding is a collateral attack upon the judgment and the only question for decision is whether the trial court possessed jurisdiction of the parties, jurisdiction of the subject matter, and the power impose the sentence. Roehm v. Woodruff, 1958-NMSC-083, 64 N.M. 278, 327 P.2d 339 (decided under former law). Variance. - Variance, relating to name and address of parties and place burglarized, between the particulars stated in the indictment and the proof thereof at the trial is not sufficient to warrant a reversal when raised for the first time on appeal. State v. Jaramillo, 1973-NMCA-029, 85 N.M. 19, 508 P.2d 1316, cert. denied, 85 N.M. 5, 508 P.2d 1302, 414 U.S. 1000, 94 S. Ct. 353, 38 L. Ed. 2d 236 (1973) (decided under former law). A variance between charge and proof cannot be raised for the first time after verdict by a motion for new trial or in arrest of judgment. State v. Mares, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law).