OPINION
Dеfendant was charged by complaint in magistrate court with failure to appear, contrary to § 31-3-9, N.M.S.A.1978. Following a preliminary hearing, he was bound over on the offense charged. A criminal information was filed, charging that defendant did “willfully fail to apрear in District Court .... ” The trial court quashed the information. The State appeals and we reverse.
In its letter-order dismissing the information, the trial court noted that no evidence had been presented at the preliminary hearing to show notificаtion to defendant of the hearing date; it concluded that the State had failed to show that defendant acted willfully as rеquired by the statute, thus warranting dismissal of the charge.
We calendared this case for summary reversal. The statute does not рrovide for express notice to the defendant; we viewed engrafting a requirement of notice as adding words to the stаtute. See State v. Mobbley,
In a timely mеmorandum defendant opposed summary reversal. He posits two reasons why the trial court was correct in dismissing the information, couching those reasons in terms of failure to show probable cause at the preliminary hearing. Specifiсally, defendant contends there was no proof of willfulness, on the sole ground that there was no proof that defendant had been notified of his court date. He also contends that there was a failure of proof that defendant’s appearance was required. State v. Easterling,
The preliminary hearing is not a trial on the merits with a view of determining defendant’s guilt or innocence. State v. Garcia,
Turning first to the defendant’s argument that under Easterling, supra, there was no proof that his appearance was required, two officers testified that March 31, 1982, was defendant’s trial date. That was sufficient evidence tо establish reasonable grounds for the magistrate’s order binding defendant over for district court proceedings. State v. Selgаdo,
Regarding the requirement of “willfully” failing to appear, defendant relies on United States v. DePugh,
The word “willfully,” as used in our statute, concerns defendant’s state of mind. See State v. Aranda,
The presence or absence of notice to the defendant may have a bearing at trial on the question of willfulness, depending upon the other fаcts of the case. But, as we observed in Mobbley, supra, “we are not concerned [here] with a factual determination by a jury.” Although it may be a matter of evidence on “just cause” or “excuse,” express notice to the defendant is not an independent element, apart from the determination of willfulness, which the State must prove at either the preliminаry hearing or at trial. See State v. Moss,
Since willfulness is a factual question, the court erred in deciding it in advance of trial. State v. Mares, supra. The defendant, knowing he was supposed to maintain contact with his attorney, did not do so and he left town without assuring that he could be reached at a forwarding address. The evidence presented at the preliminary hearing was sufficient to establish reasonable grounds for the judgment of the magistrate. See State v. Vallejos, supra.
Becausе the information charged a crime in the words of the statute and because there was probable cause to find that defendant willfully failed to appear in district court, the trial court erred in quashing the information. It did so upon its finding that there was insuffiсient evidence to establish probable cause. As a result of our calendar assignment, our review determines ■ that thе evidence was sufficient. In so holding, however, we have not overlooked the basic question — whether the district court may review the sufficiency of the evidence for a probable cause determination. New Mexico law prohibits district court review of the sufficiency of the evidence to indict. Buzbee v. Donnelly,
The cause is remanded for reinstatement of the information and for trial. IT IS SO ORDERED.