Rule 5-205 Unnecessary allegations.

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. SeeState 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. SeeState 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, seeState 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, seeState 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).