STATE оf New Mexico, Plaintiff-Appellee, v. Raymond L. BACHICHA, Defendant-Appellant.
No. 912.
Court of Appeals of New Mexico.
Oct. 13, 1972.
503 P.2d 1175
William H. Carpenter, Mercer & Carpenter, Albuquerque, for defendant-appellant.
David L. Norvell, Atty. Gen., James H. Russell, Jr., Asst. Atty. Gen., Sаnta Fe, for plaintiff-appellee.
OPINION
HENDLEY, Judge.
Convicted of the unlawful taking of a vehicle contrary to
The trial сourt‘s instructions Nos. 2 and 5 read as follows:
“No. 2—The Statute under which this charge is brought reads as follows: 64-9-4. UNLAWFUL TAKING OF A VEHICLE.—(a) Any person who shall take аny vehicle intentionally and without
consent of the owner thereof shall be guilty of a felony.” “No. 5—You are instructed that the intent with which an act is done is a mental process and, as such, gеnerally remains hidden within the mind where it was conceived and is seldоm, if ever, susceptible of proof by direct evidence, but must be inferred and established by the acts, conduct and doings of the person having such intent and from the facts and circumstances surrоunding such acts, conduct and doings, and in determining the intent with which the defеndant in this case committed the act or acts charged in this indictment, if you find that he did so, it is proper for you to consider his acts, conduct and doings together with all the other facts and cirсumstances proved on the trial of this case.”
Defendant‘s trial counsel made no objection to these instructions nor did he request a proper instruction. Defendant‘s counsel contends that the instruction omitted an essential element of the crime, namely, criminal intent. He further contends that such an omission is jurisdictional and may be raised for the first time on appeal. Wе agree.
Criminal intent is an essential element of the unlawful taking of a vehicle. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969). Failure to instruct on an essential element is jurisdiсtional and may be raised the first time on appeal. State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969).
The state would have us find that an instruction on criminal intent is included in instruction No. 5, and that that instruction “* * * could have only suggested to the jury that they must сonsider such an element: * * * [criminal intent].” and that instruction No. 5 “* * * alsо concerns the determination of criminal intent.” The state would have us reach this conclusion by reading instruction Nos. 2 and 5 together. State v. Gruender, 83 N.M. 327, 491 P.2d 1082 (Ct.App.1971). However, in reading the instructions as a whole we fail to find thе jury was instructed on the essential element of criminal intent. The jury must have more than a suggestion. It must be instructed on the essential element of a “conscious wrongdoing“. Compare State v. Austin, supra.
Reversed and remanded for a new trial.
It is so ordered.
COWAN, J., concurs.
SUTIN, dissents.
SUTIN, Judge (dissenting).
The reason I dissent is that Bachicha should be discharged because
I raise this question sua sponte. Tate, Sua Sponte Consideration on Appeal, 9 Trial Lawyers Journal (July, 1970). It is my belief that the Supreme Court will do the same. This is the third case on appeal in which the constitutionality of the statute has been raised sua sponte. Yet, the parties havе not sought finality. It is regrettable if the statute is held unconstitutional that persons charged with this statutory violation spent time in prison.