N.M. R. Crim. P. Dist. Ct. 5-205
N.M. R. Crim. P. Dist. Ct. 5-205
Committee commentary. - Section 14 of Article 2 of the New Mexico Constitution gives the defendant a right to "demand the nature and cause of the accusation." This rule provides a basic procedure for the exercise of an accused's right to determine the "nature of the accusation" to provide more specificity of the factual allegations clarifying what he or she is alleged to have done in violation of the law. See State v. Crews, 110 N.M. 723, 739, 799 P.2d 592, 608 (Ct. App. 1989) (recognizing that "[t]he purpose of a statement of facts is to provide the defendant with sufficient information about the nature and character of the crime charged"). A motion for a statement of facts should not be confused with a motion for discovery of the evidence that may prove or disprove those factual allegations, "the cause of the accusation," addressed in the discovery provisions of Rules 5-501 to -512 NMRA.
The statement of facts replaces the bill of particulars, former Trial Court Rule 35-4409 (compiled as 41-6-8 NMSA, 1953 Comp., abrogated by the supreme court with the adoption of these rules). This rule is designed to avoid the technicalities of the bill of particulars without diminishing the basic constitutional right of the defendant. See State v. Campos, 79 N.M. 611, 447 P.2d 20 (1968); State v. Graves, 73 N.M. 79, 385 P.2d 635 (1963).
For a prerule decision holding that the place of the commission of the offense or the owner of the property were not necessary allegations, see State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct. App. 1968). For a prerule decision holding that the degrees of the crime need not be set forth in the charge, see State v. Roy, 40 N.M. 397, 60 P.2d 647 (1936). As indicated in the rule, any of these allegations could be necessary under certain circumstances to give the defendant notice of the crime charged. State v. Foster, 87 N.M. 155, 530 P.2d 949 (Ct. App. 1974).
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-008, effective May 13, 2013, revised the committee commentary.
For methods of prosecution, see Rule 5-201 NMRA. For defects, errors or omissions, see Rule 5-204 NMRA. For pretrial motions, see Rule 5-601 NMRA. For right to demand the nature and cause of accusation against defendant, see N.M. Const., art. II, § 14. I. UNNECESSARY ALLEGATIONS. 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). A charging document need not allege time or date of offense charged unless such allegations are necessary to give a defendant notice of the crime charged. Thus, where the time of commission of the alleged offenses was an element unessential to the crimes charged, and thus an allegation unnecessary to the information, the criminal information sufficiently charged the offenses. State v. Cawley, 1990-NMSC-088, 110 N.M. 705, 799 P.2d 574. Exception to time as unnecessary allegation. - The information charging defendant with sodomy 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. Where a criminal offense is charged generally, and is then followed with a detailed statement of the facts, the prosecution is limited to establishing the facts so detailed; therefore, surplusage provisions of these rules making an allegation of the time of the offense unnecessary are inapplicable where the amended indictment gave defendant notice that he was charged with crimes on specific dates and the trial court's refusal to instruct that guilt was to be determined on the basis of acts occurring on or about the dates of the two burglaries charged was reversible error where there was evidence of several burglaries, and evidence connecting the defendant to at least one additional burglary for which defendant was not being tried. State v. Salazar, 1974-NMCA-026, 86 N.M. 172, 521 P.2d 134. Address and ownership. - 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). Means by which offense committed. - The means or elements of embezzlement are not required to be alleged. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010 (decided under former law). Criminal information charging defendant with "possession of cocaine to-wit: by consumption" charged the usual crime of possession of cocaine; the additional language concerning consumption was simply additional information provided by the state to show how it planned to prove possession and including the method of proof in the charging instrument did not change the basic charge of possession of cocaine that is criminalized pursuant to 30-31-23 NMSA 1978. State v. McCoy, 1993-NMCA-064, 116 N.M. 491, 864 P.2d 307, rev'd in part on other grounds sub nom. State v. Hodge, 1994-NMSC-087, 118 N.M. 410, 882 P.2d 1. Value. - Although information should have alleged value, jurisdiction does not depend upon the value of the property embezzled; value merely denotes the grade of the offense. Roehm v. Woodruff, 1958-NMSC-083, 64 N.M. 278, 327 P.2d 339 (decided under former law). Ownership. - Laws making allegations regarding ownership unnecessary in an information which charges larceny and provides for a bill of particulars is not unconstitutional since ownership in any particular person is not an element of the offense. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444 (decided under former law). Intent. - Where criminal intent is an essential part of the offense, failure to allege such intent would be a fatal defect, although intent may be alleged in general terms, or by use of equivalent terms. State v. Shedoudy, 1941-NMSC-044, 45 N.M. 516, 118 P.2d 280, rev'd on other grounds, 1944-NMSC-042, 48 N.M. 354, 151 P.2d 57 (decided under former law). Checks included as money. - Checks are included within scope of information which charged embezzlement of money. State v. Peke, 1962-NMSC-033, 70 N.M. 108, 371 P.2d 226, cert. denied, 371 U.S. 924, 83 S. Ct. 293, 9 L. Ed. 2d 232 (1962) (decided under former law). II. STATEMENT OF FACTS. Failure to request statement of facts is waiver. - Where an information charged conspiracy to commit a felony as well as three other separate felonies, it provided sufficient notice of the underlying felony or felonies. When the defendant did not request a statement of facts, he waived any claim that he did not know which of the three felonies, or whether all of them, constituted the felony he was charged with conspiring to commit. State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545. Notice by other means. - Although a defendant may not have requested a statement of facts, the purpose of this rule has been fulfilled when, through some other method, e.g., affidavits attached to criminal complaints, the defendant was put fully on notice of the crimes with which he was charged and the circumstances surrounding them. State v. Hernandez, 1986-NMCA-040, 104 N.M. 268, 720 P.2d 303, cert. denied, 104 N.M. 201, 718 P.2d 1349. Providing grand jury tapes fulfilled purpose of statement of facts. - Where a defendant was provided with grand jury tapes, the purpose of a statement of facts was fulfilled, as the defendant was provided with adequate information upon which to prepare his defense. State v. Aaron, 1984-NMCA-124, 102 N.M. 187, 692 P.2d 1336. Where error to deny bill of particulars. - In prosecution for burglary, court committed reversible error when it failed to grant motion for bill of particulars as to where robbery occurred, the type of building wherein it occurred and the type of container valuables were allegedly taken from. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635 (decided under former law). Charge of larceny of "certain articles of personal property" of a certain value, in possession of sheriff, was such that motion for bill of particulars should not have been denied. State v. Campos, 1968-NMSC-177, 79 N.M. 611, 447 P.2d 20 (decided under former law). Error to deny bill of particulars where there is insufficient specificity in charging document. - Where defendant was indicted on twelve counts of criminal sexual penetration of a minor, and where the indictment charged six factually undifferentiated acts per victim occurring between two dates, about two months apart, the district court erred in denying defendant's motion for a bill of particulars, because procedural due process requires the State to provide reasonable notice of charges against a person and a fair opportunity to defend, and a charging defect encompassed by cookie-cutter allegations within a broad time period gives rise to the possibility that a defendant might suffer double jeopardy in his initial trial by being convicted and punished multiple times on undifferentiated counts for what might have been the same offense. State v. Huerta-Castro, 2017-NMCA-026. Bill to be provided despite valid information. - Validity of information under constitutional statutes does not satisfy requirement of bill of particulars if requested. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635 (decided under former law). Where defendant given entire transcript and exhibits. - Defendant who was given entire transcript of 172 pages and 11 exhibits from the preliminary hearing, and asked for bill of particulars yet was evasive when asked by the court what he wanted, and did not answer the question, was not entitled to bill of particulars, was afforded reasonable information, and state was not required to plead the evidence. State v. Archuleta, 1970-NMCA-131, 82 N.M. 378, 482 P.2d 242, cert. denied, 82 N.M. 377, 482 P.2d 241 (1971) (decided under former law). Where bill not requested. - Defendant who never requested bill of particulars will not be heard to complain on appeal that bill was not furnished him. State v. Gibby, 1967-NMSC-219, 78 N.M. 414, 432 P.2d 258 (decided under former law). Bill of particulars to become matter of record. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646 (decided under former law). Where sufficient notice of offense. - Charge of murder "by shooting with a gun" was sufficient to enable defendant to prepare defense without bill of particulars. State v. Smith, 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146 (decided under former law). Information charging larceny of sheep is sufficient and may be supplemented by a bill of particulars. State v. Shroyer, 1945-NMSC-014, 49 N.M. 196, 160 P.2d 444 (decided under former law). Denial of motion upheld. - District court did not err in denying defendant's motion for a statement of facts, where it was admitted that trial counsel did receive a copy of the grand jury indictment and police report and interviewed the state's witnesses. State v. Serna, 1991-NMCA-102, 112 N.M. 738, 819 P.2d 688. Am. Jur. 2d, A.L.R. and C.J.S. references. - 61A Am. Jur. 2d Pleading §§ 31 to 33, 35 to 37, 57, 58, 623. 71 C.J.S. Pleading §§ 6, 26, 36.