N.M. R. Crim. P. Dist. Ct. 5-201
N.M. R. Crim. P. Dist. Ct. 5-201
Committee commentary. - The Complaint. This rule governs complaints filed in the district court. If a complaint is filed in the district court, the district court shall set a first appearance under Rule 5-301 NMRA and proceed under the Rules of Criminal Procedure for the District Courts. Most complaints are filed in either the magistrate court or the metropolitan court. If the complaint charges solely a petty misdemeanor or misdemeanor, the magistrate or metropolitan court has jurisdiction to try the case. See NMSA 1978, § 35-3-4A(1985). If the complaint charges at least one capital, felonious, or other infamous crime, the defendant may be held to answer only on an information or indictment. N.M. Const. art. II, § 14; State v. Marrujo, 1968- NMSC-118, 79 N.M. 363, 443 P.2d 856. If the complaint charges a crime which is not within the jurisdiction of the magistrate or metropolitan court, the magistrate or metropolitan court may only
(1) determine initially if there is probable cause on which to confine the defendant;
(2) advise the defendant of his or her rights at the first appearance;
(3) set and review conditions of release; and
(4) conduct preliminary examinations. See NMSA 1978, § 35-3-4 (1985).
Under this rule, Rule 6-201 NMRA, and Rule 7-201 NMRA, a complaint must state the common name of the offense, and, if applicable, the specific section number of the New Mexico Statutes Annotated which defines the offense. Two decisions of the Court of Appeals interpreting the former magistrate rule indicate that the complaint must carefully set forth the name and section number. In State v. Raley, 1974-NMCA-024, 86 N.M. 190, 521 P.2d 1031, the Court held that the initials "D.W.I." were insufficient to state the common name of the offense. In State v. Nixon, 1976- NMCA-031, 89 N.M. 129, 548 P.2d 91, the Court held that it is not necessary to charge a specific subsection of the statutes. In both cases the Court determined that the complaint must be dismissed. However, since the cases were decided under the former magistrate rules, there is no discussion of Rule 6-303 NMRA of the present Rules of Criminal Procedure for the Magistrate Courts governing technical defects in the pleadings. See also Rule 5-204 NMRA, an identical rule in the Rules of Criminal Procedure for the District Courts, and commentary.
The Information. This rule allows a prosecution to be commenced by the filing of the information. As a practical matter, the prosecution is generally commenced by the filing of the complaint in the magistrate or metropolitan court followed by either an indictment or a preliminary hearing and information. Nothing, however, prohibits the prosecution from first filing the information. See State v. Bailey, 1956-NMSC-123, 62 N.M. 111, 305 P.2d 725. See also Pearce v. Cox, 354 F.2d 884 (10th Cir. 1965). In that event the accused is not required to plead to the information and may move the court to remand the case for a preliminary hearing. See Rule 5-601(C) NMRA and commentary. After the preliminary hearing, the defendant can then be tried on the information filed before the preliminary hearing. State v. Nelson, 1958-NMSC-018, 63 N.M. 428, 321 P.2d 202.
If the prosecution has been commenced by the filing of a complaint in the magistrate or metropolitan court and a preliminary hearing has been held, Paragraph C of this rule requires that the information be filed within thirty (30) days after completion of the preliminary examination. The information must conform to the bind-over order of the magistrate. State v. Melendrez, 1945-NMSC-020, 49 N.M. 181, 159 P.2d 768. It does not have to conform to the complaint which initiated the prosecution in the lower court. State v. Vasquez, 80 N.M. 586, 458 P.2d 838 (Ct. App. 1968).
The provision of Paragraph C of this rule requiring the information to contain the essential facts was taken from Rule 7 of the Federal Rules of Criminal Procedure. See generally, 1 Orfield, Criminal Procedure under the Federal Rules § § 7:83-7:87(1966). The United States Supreme Court has indicated that the pleading under Federal Rule 7 must be tested by two general criteria: (1) whether the pleading contains the elements of the offense to sufficiently apprise the defendant of what he or she must be prepared to meet; (2) whether he or she is accurately apprised of the charge so as to know if he or she is entitled to plead a former acquittal or conviction under the double jeopardy clause of the fifth amendment to the United States Constitution. Russell v. United States, 369 U.S. 749, 763-64 (1962). Compare State v. Vigil, 1973-NMCA-089, 85 N.M. 328, 512 P.2d 88, with State v. Foster, 1974-NMCA-150, 87 N.M. 155, 530 P.2d 949.
This rule must also be read in conjunction with Rule 5-204 and Rule 5-205. (A) and (B) Paragraphs A and B of Rule 5-205 (A) and (B) identify certain allegations which need not be included in the pleading. Rule 5-204 NMRA indicates that the pleading is not invalid because of defects, errors and omissions. In addition, the Court of Appeals has held that any asserted failure of the pleading to allege essential facts must be accompanied by a showing of prejudice because of that failure. State v. Cutnose, 1974-NMCA-130, 87 N.M. 307, 532 P.2d 896.
Paragraph C of this rule requires that the information be signed by the district attorney. See N.M. Const., art. II, § 14. This requirement can be met by the signature of an assistant district attorney. See NMSA 1978, § 36-1-2 (1984). The Constitution also indicates that the information may be filed by the attorney general. See also NMSA 1978, § 8-5-3 (1933). The deputy or an assistant attorney general would have the same authority as the attorney general. See NMSA 1978, § 8-5-5 (1988).
Article XX, Section 20 of the New Mexico Constitution contains language which would indicate that the accused must waive an indictment if the state proceeds by information. However, it has been held that Article II, Section 14 of the constitution, the section allowing prosecution by information, eliminated the necessity of a waiver of a grand jury indictment. See State v. Flores, 1968-NMCA-057, 79 N.M. 420, 444 P.2d 605.
For interpretation of the common name and specific statute section provisions of the information, see the discussion of the elements of a complaint, above.
The Indictment. For the law governing the grand jury procedure and return of indictments, see NMSA 1978, §§ 31-6-1 to -15 (1969, as amended through 2003). The elements of an indictment are the same as required for an information and would be interpreted by the same criteria. See e.g., Cutnose, 1974-NMCA-130. The state may proceed by indictment in the district court even if the prosecution was initiated originally by the filing of a complaint in the lower court. See State v. Peavler, 1975-NMSC-035, 88 N.M. 125, 537 P.2d 1387; State v. Ergenbright, 1973- NMSC-024, 84 N.M. 662, 506 P.2d 1209; State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940. This practice was recognized by the Supreme Court in the adoption of Rule 6-202(E) NMRA and Rule 7-202(E) NMRA, which provides that if the defendant is indicted before the preliminary examination, the magistrate or metropolitan court shall take no further action.
ANNOTATIONS Compiler's notes. - Paragraph A is similar to Rule 12(a) of the Federal Rules of Criminal Procedure. Paragraph B is similar to Rule 3 of the Federal Rules of Criminal Procedure. Paragraphs C and D are similar to Rule 7(c) of the Federal Rules of Criminal Procedure.
For defects, errors and amendment of information or indictment, see Rule 5-204 NMRA. For criminal complaint form, see Rule 9-201 NMRA. For criminal information form, see Rule 9-203 NMRA. For grand jury indictment form, see Rule 9-204 NMRA. I. GENERAL CONSIDERATION. Constitutional rights not denied where information used rather than indictment. - There is no denial of a state or federal constitutional right where a defendant is proceeded against by information rather than by grand jury indictment. State v. Franklin, 1968-NMSC-176, 79 N.M. 608, 446 P.2d 883, cert. denied, 394 U.S. 965, 89 S. Ct. 1318, 22 L. Ed. 2d 566 (1969). A person who is arrested before an information is filed is not forthwith entitled to grand jury action in his case and the subsequent filing of an information does not violate N.M. Const., art. XX, § 20, relating to waiver of indictment and plea to information in form of indictment. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506 (decided under former law). Testimony by witness not listed. - Whether witness who was not listed on the indictment could be allowed to testify in rebuttal was a matter within the discretion of the trial court. State v. Barboa, 1973-NMCA-025, 84 N.M. 675, 506 P.2d 1222 (decided under former law). Right to preliminary examination. - When the charge is by criminal information, defendant had a right to a preliminary examination. State v. Vasquez, 1969-NMCA-082, 80 N.M. 586, 458 P.2d 838 (decided under former law). When charged by criminal information, a defendant has a right to a preliminary examination. No such right exists if the defendant is indicted by a grand jury. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (decided under former law). Which is critical stage. - Where complaint and information are utilized in lieu of indictment, the preliminary hearing has been held to be a critical stage of the criminal process for purposes of applying the right-to-counsel provision of U.S. Const., amend. VI. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271 (decided under former law). Which can be waived. - Pleading to an information waives the right to a preliminary hearing or to challenge 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). Use of specific or general statutes. - For a specific and not a general statute to apply to a crime the specific and general statute must condemn the same offense, that is, the same proof is required under either the specific or general statute. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628. 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). For comment, "The Use of an Information Following the Return of a Grand Jury No Bill: State v. Joe Nestor Chavez," see 10 N.M.L. Rev. 217 (1979-80). For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 1 Am. Jur. 2d Actions § 57 et seq. Bail: effect on liability of bail bond surety of state's delay in obtaining indictment or bringing defendant to trial, 32 A.L.R.4th 600. Limitations on state prosecuting attorney's discretion to initiate prosecution by indictment or by information, 44 A.L.R.4th 401. 1A C.J.S. Actions §§ 237 to 242. II. COMMENCEMENT OF PROSECUTION. Indictments to be filed. - Neither the New Mexico Constitution nor these rules require that indictments be "returned in open court." Those provisions speak only in terms of "filing." State v. Ellis, 1976-NMCA-036, 89 N.M. 194, 548 P.2d 1212, cert. denied, 89 N.M. 206, 549 P.2d 284. District court acquires jurisdiction over criminal charge upon filing information. State v. Vasquez, 1969-NMCA-082, 80 N.M. 586, 458 P.2d 838 (decided under former law). Where no complaint, information or indictment has been filed which names the accused, no criminal prosecution has been commenced and the defendant is not an "accused" or a "defendant." Sanchez v. Attorney Gen., 1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170. Constitutional provisions. - Under N.M. Const., art. II, § 14, for capital, felonious or infamous crimes a defendant may be proceeded against either by a grand jury indictment or by a criminal information. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271. State to choose information or indictment. - The choice to proceed by information or indictment is that of the state. State v. Burk, 1971-NMCA-018, 82 N.M. 466, 483 P.2d 940, cert. denied, 404 U.S. 955, 92 S. Ct. 309, 30 L. Ed. 2d 271. Charge need not be dismissed because of unverified information. - It is error for the trial court to dismiss robbery charges on the ground of an unverified information, where the prosecution has been commenced by criminal complaint, and defendants have already been arrested and have appeared at a preliminary examination before the information is filed. State v. Smallwood, 1980-NMCA-037, 94 N.M. 225, 608 P.2d 537. Investigation not basis for malicious prosecution claim. - The investigative report of a drug inspector regarding the filling of forged prescriptions by a pharmacist did not initiate criminal proceedings against the pharmacist and could not be used as the basis for a claim of malicious prosecution. Johnson v. Weast, 1997-NMCA-066, 123 N.M. 470, 943 P.2d 117. III. COMPLAINT. Charge of burglary and grand larceny. - A criminal complaint subscribed by a county sheriff and charging defendant with burglary and grand larceny was insufficient to invoke the jurisdiction of the court in that the crimes charged therein purport to be in each case a felony and such as can be prosecuted only upon indictment or presentment by a grand jury, or by an information filed by the district attorney, attorney general or their deputies, as required by N.M. Const., art. II, § 14. State v. Chacon, 1957-NMSC-030, 62 N.M. 291, 309 P.2d 230. Defective complaint. - To the extent that the complaint against defendant, standing alone, could be considered jurisdictionally defective for not setting forth all of the elements listed in this rule, any such defect was cured by the bill of particulars filed by the state; and even if complaint were defective, such defect would not be jurisdictional. State v. Pina, 1977-NMCA-020, 90 N.M. 181, 561 P.2d 43. IV. INFORMATION. A. IN GENERAL. Constitutionality of provisions permitting felony prosecution by information. - The provisions of N.M. Const., art. II, § 14, permitting the prosecution of a felony by information, does not violate either U.S. Const., amend. V, requirement of a grand jury indictment or the due process clause of the U.S. Const., amend. XIV. State v. Reyes, 1967-NMCA-023, 78 N.M. 527, 433 P.2d 506. The purpose of a criminal information is to furnish the accused with such a description of the charge against him as will enable him to prepare a defense and to make his conviction or acquittal res judicata against a subsequent prosecution for the same offense. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228; State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101; State v. Martin, 1980-NMCA-019, 94 N.M. 251, 609 P.2d 333, cert. denied, 94 N.M. 628, 614 P.2d 545. The purpose of a criminal information is to furnish the accused with such a description of the charge against him as will enable him to make a defense, to make his conviction or acquittal res judicata against a subsequent prosecution for the same offense, and to give the court reasonable information as to the nature and character of the crime charged. State v. Herrod, 1972-NMCA-163, 84 N.M. 418, 504 P.2d 26 (decided under former law). The purpose of a criminal information is to furnish the accused with such a description of the charge against him as will enable him to make a defense. State ex rel. Apodaca v. Our Chapel of Memories of N.M., Inc., 1964-NMSC-068, 74 N.M. 201, 392 P.2d 347(decided under former law). The object of an information is first to furnish an accused with a description of the charge against him as will enable him to make his defense and to avail himself of his conviction or acquittal against a subsequent prosecution for the same offense; and second, that the court may be informed as to the facts alleged so it may determine whether the facts are sufficient to support a conviction, if one should be had. Ex parte Williams, 1954-NMSC-005, 58 N.M. 37, 265 P.2d 359 (decided under former law). Information and bill of particulars read together. - In determining whether the acts alleged constitute the offense, the information and the bill of particulars are to be read together as a single instrument. When read together, if the acts alleged do not constitute the offense charged, the information may be quashed. State v. Putman, 1967-NMCA-020, 78 N.M. 552, 434 P.2d 77 (decided under former law). Bill of particulars to be furnished even though information valid. - Bill of particulars must still be furnished, if requested, even though information is valid under the constitution and statutes. State v. Graves, 1963-NMSC-183, 73 N.M. 79, 385 P.2d 635 (decided under former law). Waiver of relief for violation. - Any relief available for a Subdivision (c) (see now Paragraph C) violation is waived where this violation is raised for the first time on appeal. State v. Keener, 1981-NMCA-139, 97 N.M. 295, 639 P.2d 582. B. ESSENTIAL FACTS. Charge of criminal sexual penetration. - Where the information charged that defendant committed an act of sexual intercourse with a female under the age of 16 years, who was not his wife, the facts were a sufficient charge of the "essential facts" of statutory rape (now criminal sexual penetration), and the information did not fail to charge a crime by not specifically stating the sex and age of defendant. State v. Vigil, 1973-NMCA-089, 85 N.M. 328, 512 P.2d 88. An information containing an open charge of murder meets all the requirements of this rule where it contains the essential facts and refers to the common name of the offense and to the applicable statutory section. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds, State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228. C. SUFFICIENCY OF REFERENCE TO OFFENSE. Charge of 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). Charge defendant burglarized outhouse in nighttime was sufficient. State v. Mares, 1956-NMSC-031, 61 N.M. 46, 294 P.2d 284 (decided under former law). Charge of grand larceny was sufficient. State v. Johnson, 1955-NMSC-070, 60 N.M. 57, 287 P.2d 247 (decided under former law). Charge of embezzlement, which made entrustment the stepping stone to committing the crime, was a sufficient allegation of entrustment as a factor. State v. Konviser, 1953-NMSC-057, 57 N.M. 418, 259 P.2d 785 (decided under former law). Charge that defendant delivered alcoholic liquor to a minor, contrary to provision of 60-10-16 NMSA 1978 (now 60-7B-1 NMSA 1978), prohibiting sale of liquor to minors unless accompanied by parent, guardian, etc., was not fatally defective in failing to set out that such minor was not accompanied by a parent, guardian or other person having custody. State v. Cummings, 1957-NMSC-105, 63 N.M. 337, 319 P.2d 946 (decided under former law). Case committed from magistrate court. - A criminal information is sufficient if the crime charged in the complaint in the magistrate's court is kindred to that to which the accused is held to answer in the preliminary examination and the information is substantially in accord with the magistrate's commitment to district court. State v. Vasquez, 1969-NMCA-082, 80 N.M. 586, 458 P.2d 838 (decided under former law). Identification of offense as felony or misdemeanor is not required. Roessler v. State, 1969-NMCA-003, 79 N.M. 787, 450 P.2d 196, cert. denied, 395 U.S. 967, 89 S. Ct. 2115, 23 L. Ed. 2d 754 (1969) (decided under former law). Charge defendant did "murder" a certain named person sufficiently apprised defendant of the nature of the offense. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646 (decided under former law). Charge of statutory rape (now criminal sexual penetration) is valid and states the requisite essential facts when it charges that offense by referring both to the common name of the offense and its statutory section number. State v. Vigil, 1973-NMCA-089, 85 N.M. 328, 512 P.2d 88. Information in statutory form enumerating sections defining offense and penalties was sufficient. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58 (decided under former law). Citation of repealed embezzlement statute, instead of statute which superseded it, was sufficient. Smith v. Abram, 1954-NMSC-061, 58 N.M. 404, 271 P.2d 1010 (decided under former law). Reference to section of statute creating crime is sufficient. State v. Lott, 1963-NMSC-219, 73 N.M. 280, 387 P.2d 855 (decided under former law). Reference to the section of a statute creating a crime is sufficient to identify the crime charged. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228. Reference to specific section of municipal code sufficiently alleged offense of disturbing the peace. Village of Deming v. Marquez, 1965-NMSC-006, 74 N.M. 747, 398 P.2d 266 (decided under former law). Voiding of penalty section is not sufficient grounds to void information which is sufficient under section without reference to penalty provisions. State v. Ferris, 1969-NMCA-093, 80 N.M. 663, 459 P.2d 462 (decided under former law). V. INDICTMENTS. A. IN GENERAL. Use of false evidence. - The knowing use of false evidence or the failure to correct false evidence at grand jury proceeding was a violation of due process where the evidence was material to the guilt or innocence of the accused. Where the only grand jury witness upon whose testimony the indictment was based gave false testimony, indictment based on such evidence violated defendant's right to due process. State v. Reese, 1977-NMCA-112, 91 N.M. 76, 570 P.2d 614. Indictment for criminal trespass charging violation of a specific statutory section, stating the common name of the offense, the date and the county, 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). Specificity of charging statute. - Indictment was not void under the specific versus general statute rule requiring charge under specific statute where the offense condemned is the same, where the father is charged with first-degree murder and not child abuse, because the offense of murder (30-2-1 NMSA 1978) and the offense of child abuse (30-6-1 NMSA 1978) resulting in the child's death are not the same, and the proof required for the two offenses is not the same, since, generally speaking, murder requires an intent, whereas child abuse does not. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628. An attack on the eligibility of one grand juror does not raise an issue as to the jurisdiction of the court, but goes only to the procedural requirements for returning an indictment. State v. Velasquez, 1982-NMCA-154, 99 N.M. 109, 654 P.2d 562, cert. denied, 99 N.M. 148, 655 P.2d 160. Second indictment titled "Superseding Grand Jury Indictment" was proper since it fit the definition and form of an indictment as set out in this rule. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31. Use of the defendant's testimony at a second grand jury hearing for impeachment at trial did not affect the validity of the second indictment since it was ordered in response to the defendant's own motion. State v. Martinez, 1996-NMCA-109, 122 N.M. 476, 927 P.2d 31. B. ESSENTIAL FACTS. Generally. - What essential facts are required by Subdivision (d) (see now Paragraph D) depends on that which is conveyed by other parts of the indictment. Where the indictment provided the date, common name and statutory section number of the offense, identified witnesses upon whose testimony the indictment was based, including named personnel at the hospital, which was the scene of the offense, and defendant did not assert what essential facts were missing, the appellate court would not hold the indictment failed to allege essential facts. And since Rule 7(a) and (d) (see now Rule 5-204 NMRA) require a showing of prejudice due to a defect, error or omission in an indictment, which defendant has not made, the indictment charging criminal trespass was 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). Indictment to give details of charge. - An indictment which does not furnish defendant with specific details as to the charges against which he is compelled to defend, fails to give him proper notice of the charges. State v. Naranjo, 1980-NMSC-061, 94 N.M. 407, 611 P.2d 1101. Murder. - Where count one of the indictment referred to specific section numbers, and charged defendant with the murder of the named victim in a certain county on a specified date in violation of specific statutes, no essential facts were missing, and there was no violation of Subdivision (d) (see now Paragraph D). 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. Sufficiency of reference to diverse dates. - Where the indictment charged defendant with receiving and concealing stolen property contrary to statutory provisions and further charged that: "On diverse dates between March 20, 1965, and the 19th day of March, 1968 . . . [the defendant] did buy, procure, receive, or conceal things of value knowing the same to have been stolen or acquired by fraud or embezzlement" the indictment was in substantially the form prescribed by statute, and, insofar as form is concerned, no greater degree of conformity was required. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970) (decided under former law). C. SUFFICIENCY OF REFERENCE TO OFFENSE. Charging of accessory. - Supreme court has held previously that 30-1-13 NMSA 1978, relating to accessories, does not require a person to be charged as an accessory and that an accessory may be charged and convicted as a principal. Subdivision (d) (see now Paragraph D), which requires that the indictment allege "essential facts constituting the offense," does not change the procedure authorized by Section 30-1-13 NMSA 1978, since "the offense," as used in Subdivision (d) (see now Paragraph D), means the principal offense. Thus, defendant was not required to be charged as an accessory and indictment was sufficient where the language contained therein informed defendant of the essential facts of the charge of armed robbery. State v. Roque, 1977-NMCA-094, 91 N.M. 7, 569 P.2d 417, cert. denied, 91 N.M. 4, 569 P.2d 414. Sufficiency of statutory reference. - An indictment is valid and sufficient if it identifies the crime charged by reference to the statute establishing the offense. State v. Lucero, 1968-NMCA-021, 79 N.M. 131, 440 P.2d 806) (decided under former law). It is sufficient if an indictment charges an offense by reference to the section or subsection creating the offense. State v. Garcia, 1969-NMCA-039, 80 N.M. 247, 453 P.2d 767 (decided under former law). An indictment could charge by using the name given to the offense by the common law or by a statute and was valid and sufficient if it identified the crime charged by reference to the statute establishing the offense. State v. Walsh, 1969-NMCA-123, 81 N.M. 65, 463 P.2d 41 (decided under former law). Where the initial indictment and amended indictment employed the name given the offense by statute and specifically referred to the section and subsection of the statute which created the offense, it cannot be said that the indictment failed to charge the particular offenses and consequently was not subject to amendment. State v. Turner, 1970-NMCA-024, 81 N.M. 450, 468 P.2d 421, cert. denied, 81 N.M. 506, 469 P.2d 151 (decided under former law). Where the offense was charged in the name given it by the statute, stated in almost the identical language of the statutory definition thereof, had in terms of substantially the same meaning and express reference was made to the statute creating the offense, the requirements of former provisions regarding charging the offense were satisfied. State v. Lindsey, 1969-NMCA-121, 81 N.M. 173, 464 P.2d 903, cert. denied, 398 U.S. 904, 90 S. Ct. 1692, 26 L. Ed. 2d 62 (1970) (decided under former law). An indictment is valid and sufficient where it refers to the statute creating the offense and also charges the offense in terms of the statutory language. State v. Herrod, 1972-NMCA-163, 84 N.M. 418, 504 P.2d 26 (decided under former law).