STATE of New Mexico, Plaintiff-Appellee, v. Victor Marcelino MATA, Defendant-Appellant.
No. 1323.
Court of Appeals of New Mexico.
July 10, 1974.
Certiorari Denied Aug. 14, 1974.
525 P.2d 908
We can say of the present statute, more forcefully than did the Grayned court of the statute attacked there, that it “. . . punishes only conduct which disrupts . . . normal school activities. That decision is made, as it should be, on an individualized basis, given the particular fact situation. Peaceful picketing which does not interfere with the ordinary functioning of the school is permitted. And the ordinance gives no license to punish anyone because of what he is saying.” Grayned v. City of Rockford, supra; also see Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965); Cameron v. Johnson, supra; McAlpine v. Reese, supra; State v. Sullivan, supra; People v. Witzkowski, supra; Sill v. Pennsylvania State University, supra; Dougherty v. Walker, supra; Furumoto v. Lyman, supra.
The statute is valid on its face.
4. Unconstitutional Statute Application.
Defendants assert that regardless of the statute‘s facial validity it was unconstitutionally applied. We disagree. Our benchmark is, again, the rule in Tinker. We review the facts de novo. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, 95 A.L.R.2d 1412 (1964).
The defendants pressed legitimate demands in an unobstructive way during the Administrative Council meeting. That conduct was protected. However, when their demands were not met they added coercive conduct to their protected speech and their constitutional protection ended. They refused to honor Dr. Meister‘s request to leave his office. He allowed them to remain through lunch, when he had no other business, but he had appointments in the afternoon. By refusing to leave when Dr. Meister returned from lunch the defendants substantially interfered in the functioning of the president‘s business. They argue that the president was too hasty and could have moved his meeting elsewhere. There are three answers to that argument: First, he had no way of knowing how long they would stay or how many appointments they would disrupt. Second, the same argument can be made for conduct manifestly unprotected, like the occupation of buildings to the exclusion of students and faculty. Third, “[i]t may be, as has been suggested, that in these cases of nonviolent violation, there is ‘sense in patient forbearance despite the wrong that the action involves.’ Patient forbearance, however, is the result of a prudential judgment and is not constitutionally compelled.” Wright, The Constitution on the Campus, 22 Vand.L.Rev. 1027 (1969).
Tinker does not compel a contrary conclusion. That case “. . . involve[d] direct, primary First Amendment rights akin to ‘pure speech.‘”
We hold the defendants’ conduct was unprotected.
The judgment is affirmed.
It is so ordered.
HERNANDEZ and LOPEZ, JJ., concur.
Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Steve Schmidt, Asst. Public Defender, Santa Fe, for defendant-appellant.
David L. Norvell, Atty. Gen., Bill Primm, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee.
OPINION
WOOD, Chief Judge.
Defendant appeals his convictions of aggravated burglary and aggravated assault.
Defendant entered the apartment of Mr. and Mrs. Cardona at approximately 5:30 a.m. The entry was made after cutting the screen door with a knife.
Mr. and Mrs. Cardona were in bed, asleep. Mrs. Cardona was nude. She awakened to find defendant sitting on the side of the bed, kissing her lips and fondling her breasts. She was scared; she yelled for her husband.
The husband awakened, saw defendant sitting on the bed and got up “to see who it was.” Defendant stood up at the same time with a knife in his hand about waist high. In Spanish, defendant said to Mr. Cardona, “‘Come on. Let‘s go.‘”
Mr. Cardona followed defendant into the kitchen. After entering the kitchen, defendant closed the knife blade and put the knife in his pocket. Defendant kept his hand in his pocket during the conversation that followed.
Aggravated burglary.
The element contested is that of defendant‘s intent to commit a felony. Defendant claims the evidence is insufficient to show such an intent. We disagree.
In this appeal, the State asserts defendant‘s intent upon entry was “to scare the dickens out of” the Cardonas. The State makes no effort to show that “scaring” is a crime, much less a felony.
At trial, the prosecutor had two theories as to the felony intended at the time of entry—rape and aggravated assault. The trial court indicated agreement with the defense contention that the evidence was insufficient to show an intent to rape. The trial court asked the prosecutor if he wanted to withdraw rape. The prosecutor stated he would be satisfied with assault.
Thus, the felony intended at entry was limited to an assault. The felony of which the jury was informed was aggravated assault.
The trial court instructed the jury that aggravated assault consisted of unlawfully assaulting another with a deadly weapon.
Mrs. Cardona did not see the knife, but that is immaterial. Our concern is with defendant‘s intent upon entry. At the time of his unauthorized entry, defendant was armed with a deadly weapon. His kissing and fondling of Mrs. Cardona was an unlawful act. She was scared. Defendant concedes that his touching of Mrs. Cardona amounted to a battery. Intent may be proven by inference from the facts and circumstances. State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App. 1971); State v. Ortega, 79 N.M. 707, 448 P.2d 813 (Ct.App. 1968). The evidence is sufficient to establish that defendant‘s intent upon entry was to commit an aggravated assault.
Defendant raises three other issues concerning the aggravated burglary. These issues are directed to the sufficiency of the information to charge the crime and the sufficiency of the instructions defining the crime. None of these issues were raised in the trial court. None amounted to an issue that may be raised for the first time on appeal. They will not be reviewed. See Rule 11 of the Rules Governing Appeals.
Aggravated assault.
Defendant was not charged with an aggravated assault upon Mrs. Cardona. The charge was that aggravated assault was committed upon Mr. Cardona.
For there to be an aggravated assault there must first be an assault. For there to be an assault upon Mr. Cardona, there must have been an act, threat or conduct which caused Mr. Cardona to reasonably believe he was in danger of receiving an immediate battery.
The evidence is insufficient to show Mr. Cardona reasonably believed he was in danger of receiving an immediate battery.
The judgment and sentence for aggravated burglary is affirmed. The judgment and sentence for aggravated assault is reversed. The cause is remanded for further proceedings consistent with this opinion.
It is so ordered.
HENDLEY, J., concurs.
SUTIN, J., dissents.
SUTIN, Judge (dissenting).
I dissent.
To sentence defendant 10 to 50 years for aggravated burglary under the facts of this case is a miscarriage of justice. It is cruel and unusual punishment inflicted on a man who is innocent of the crimes with which he was charged.
Aggravated burglary carries punishment of a second degree felony which means imprisonment in the state penitentiary for a term of not less than 10 nor more than 50 years, or to the payment of a fine of $10,000, or to both such imprisonment and fine in the discretion of the court.
Second degree murder, kidnapping, criminal abortion which results in death, carry the same punishment. Voluntary and involuntary manslaughter, dangerous use of explosives, carry a much less punishment.
The defendant is entitled to a new trial or complete discharge.
We should keep in mind the inherent power of courts of review to protect a man‘s fundamental rights in every case. State v. Romero, 86 N.M. 244, 522 P.2d 579 (1974).
A. The majority opinion fails to answer questions of law raised by the defense.
The majority opinion refused to review three issues raised by defendant, none of which, it states, can be raised for the first time on appeal. This constitutes a reversal of previous decisions and a convenient method of wasting a man‘s life. Only one issue will be presented which should grant the defendant a new trial.
(1) The jury was not instructed on all essential elements of aggravated burglary.
The trial court instructed the jury in the language of the statute on aggravated burglary and contained the phrase “with intent to commit a felony,” but the word “felony” was not explained to the jury.
A jury cannot know which crime in the Criminal Code is designated by law as a felony, a misdemeanor or a petty misdemeanor; nor does it know the punishment authorized for conviction of the crime. A jury may convict a man of “intent to commit a felony” when the intent proved was to commit a misdemeanor or a petty misdemeanor. The jury is not allowed to guess or speculate on the meaning of the word “felony.” The jury needs guidance and explanation and assistance.
Rule 41(a) of the Rules of Criminal Procedure [
The court must instruct the jury upon all questions of law necessary for guidance in returning a verdict. [Emphasis added].
A failure to instruct on an essential element of a crime is jurisdictional and can
“Intent to commit a felony” is an essential element of aggravated burglary. United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971); United States v. Seegers, 144 U.S.App.D.C. 162, 445 F.2d 232 (1971); Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868 (1972); Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968); Adkins v. State, 389 P.2d 915 (Alaska, 1964). See, State v. Vigil, 85 N.M. 328, 334, 335, 512 P.2d 88 (Ct.App. 1973), concurring opinion.
We have held that the failure to define “assault” is prejudicial error where a defendant is tried for assault with intent to commit a violent felony, to-wit: rape, because the jury was allowed to guess or speculate as to the meaning of the word “assault.” State v. Jones, supra. This same rule applies to aggravated burglary. It is prejudicial error to fail to instruct sua sponte on a definition of “felony” and to fail to advise the jury which acts would amount to a felony that the defendant, upon entry, may have intended to commit. People v. Failla, 51 Cal.Rptr. 103, 414 P.2d 39 (1966); State v. Fierro, 15 Ariz.App. 369, 488 P.2d 1006 (1971).
Failla, supra, is interpreted to mean that prejudice must be demonstrated before the failure to define a felony in the context of a burglary instruction will constitute reversible error. People v. McManis, 26 Cal.App.3d 608, 102 Cal.Rptr. 889, 893 (1972). See also, People v. Hawkins, 268 Cal.App.2d 99, 73 Cal.Rptr. 748, 752 (1968); City of Albuquerque v. Ackerman, 82 N.M. 360, 364, 482 P.2d 63 (1971). Prejudice is obvious.
Under Rule 41(a), the necessity of guidance to the jury is a mandatory duty of the trial court to avoid guess and speculation in returning a verdict.
In the instant case, the jury does not know what a felony or a misdemeanor is. Even if we assume it does know, it cannot know whether defendant‘s conduct constitutes a felony or a misdemeanor without guidance. The jury had to guess or speculate which felony, if any, the defendant intended to commit upon entering the home. The jury had to guess or speculate whether defendant‘s conduct constituted a felony or a misdemeanor.
The failure to instruct the jury on the meaning of the phrase “with intent to commit a felony” is reversible error which entitled defendant to a new trial.
B. Defendant was not guilty of aggravated burglary.
(1) There was no evidence of intent, upon entry, to commit an aggravated assault.
The majority opinion holds that defendant was not guilty of aggravated assault on Mr. Cardona. I concur.
Did defendant intend, upon entry, to commit an aggravated assault? The majority opinion limits its scope to Mrs. Cardona.
By a wave of the wand, the majority opinion holds that “The evidence is sufficient to establish that defendant‘s intent upon entry was to commit an aggravated assault.” Upon what evidence? (1) Defendant was armed with a deadly weapon and (2) “His kissing and fondling of Mrs. Cardona was an unlawful act. She was scared.”
Upon entry, Mrs. Cardona was asleep. He could not intend to assault her with a deadly weapon while she was asleep. He would have to awaken her and then use his knife and unlawfully assault or strike at Mrs. Cardona by committing an unlawful act, threat or menacing conduct which caused her to reasonably believe she was in danger of receiving an immediate battery.
In order to constitute a felony, aggravated battery includes unlawful touching with intent to injure a person by use of a deadly weapon.
The fact is, that after the wife awakened, the husband and wife dominated the scene, called the police, scared the defendant, and caused the defendant to run away. Defendant was a fool, but he did not deserve 10 to 50 years in the penitentiary.
The defendant had no intent, upon entry to commit any felony. He might be guilty of criminal trespass, a petty misdemeanor.
Hernandez, J., filed opinion concurring in part and dissenting in part.