State v. Putman
434 P.2d 77
N.M. Ct. App.
1967
Check Treatment

*1 552 Gen., Atty. M. Car- Witt, E. Boston Joel 434 P.2d 77 appel- Fe, for Atty. Gen., Santa son, Asst. Mexico, Plaintiff-Appellant, New

STATE of lant. v. Carlsbad, appellee. Windham, for Foster' Defendant-Appellee. PUTMAN, Haskel No. 56. OPINION Appeals of Mexico. of Court Kfew n WOOD, Judge. 6, 1967. Oct. information, defend- II the By of Count 2, Rehearing 1967. Denied Nov. sodomy. The informa- accused of ant was particu- by a bill of supplemented

tion was defendant’s The trial sustained court lars. the that quash ground the to motion on sodomy. did constitute alleged not acts (4), 21-2-1(5) appeals under The State § N.M.S.A. 1953. 40A- in sodomy is defined crime of §

The the portion of 9-6, The N.M.S.A. 1953. applicable reads: here statute “Sodomy person intention- consists of a ally anus taking or her or into his mouth organ any person the sexual of other charges: The information “ ** * take that defendant did said organ an- into his mouth the sexual of ”* * * person. other ' female, the Omitting name of the the particulars bill of states: “ * * *' the manner in which the de- sodomy up- act fendant committed the of her, placed tongue is that within on he his vagina.” her presented issue is as to (1) No whether allega- repugnancy is a the there between tions of the information and the bill of particulars, (2) uncertainty results whether in the information because of the acts al- leged particulars in the bill (3) of or wheth- alleged particulars er the acts in bill of the 41-6-36, surplusage. 41-6-35, are See § 41-6-38, 41-6-37 and N.M.S.A. 1953. alleged The issue is the acts whether sodomy. ruling the constitute offense of In alleged the that the acts did not constitute offense, only the trial the- court considered particulars; alleged acts in it the bill of alleged did not consider the acts the in- in formation.

553 First, Act, determining 40A-9-6, In whether the al acts whether the N.M. § offense, leged 1953, constitute the the informa only S.A. relates to the male sexual particulars organ. tion and the bill to of are be read

together single a v. as instrument. Norton Second, the specified whether the act in Reese, 602, (1966). 76 N.M. P.2d 205 417 particulars charged sodomy bill of such as ‘ together, alleged the do When read if acts 40A-9-6, by supra. crime is defined § in charged, not constitute the the offense with, I difficulty agreeing in have no may 41-6-9, quashed. formation be Section majority the that the both' includes statute 1953. N.M.S.A. male and organs. female sexual applies per Our statute os to acts as well appears It majority to me the take the per Compare acts as anum. Bennett v. position sustaining that in the motion to Abram, 28, (1953), 57 N.M. 253 P.2d 316 quash erroneously the trial court limited' statutory which was decided before our allegations consideration to the contained in definition was enacted. particulars the bill of and consideration should have been given likewise to the sodomy Our act to defines include charge in the information the that to end taking a organ into the mouth “the sexual if specification either instrument contains a any person.” of other not The statute is of charge acts sufficient to the the crime the organ limited to sexual the male. of motion should have been denied. “Any person” fe other includes male and proposition This suggested, was neither State, Compare male. v. 215 Ind. Connell argued, by parties or submitted as the I 318, 19 (1939). N.E.2d 267 read the briefs. Reading my the To parties mind the information and the trial and the particulars bill of together, alleged court treated the in the bill as defendant is acts accused of particular acts constituting upon prosecu- the the acts which the of offense sodomy. tion superseding was based and those as alleged Consequently, in the information. The order quashing Count II of the in- purpose for the of decision in this case I formation is reversed. The case is re- pleadings. feel we should so treat these manded with instructions to set the order position general aside and I to reinstate take the that as a rule charge. the the this court confine its decision to should It is so ordered. by errors and the asserted issues raised It, parties. course, through of that follows HENSLEY, Jr., J.,C. concurs. right parties adherence to this rule the of questions argue upon to which a decision is based will be denied. not S, J., part SPIES in concurring and dis- senting part. in statute, language As I read the the of 40A-9-6, supra, together the acts with

§ specified particulars appears in the bill it of SPIESS, Judge, Appeals of (con- Court obvious to me that if com- the defendant did curring part in dissenting and in part). specified sodomy mit the the act so crime of t I am unable to concur in the result by the as same is the defined statute was by reached majority the in this case. As I not committed. read the only record and the briefs two questions argued by are submitted and the For reasons I the stated would affirm the parties. order of the trial court.