*1
166
crimes then shall sen- prescribed punishment tence as him Mexico, Plaintiff-Appellee, STATE New ha- governing 29-5 section [40A-29-5] v. offenders, shall there- bitual and court RAMIREZ, Defendant-Appellant. Frankie upon the new sentence all deduct from No. 888. preceding actually next time served on the sis mine] sentence sentences shall the remainder of run concurrent.” [Empha- two [2] Court my opinion responses It is that
by the defendant constitute acknowl-
edgement same previous crimes
had convicted been “acknowledge” is charged. The word
as by “to "show word act as knowledge agrees a fact
one has of and Interna-
or truth”. Websters Third New Dictionary.
tional court then sentence went objection the de
defendant without having been never
fendant. This issue
presented upon nor ruled this not before
court is therefore (20) (2) N.M.S.A. 21-2-1 court. Tipton, 77 N. (Repl.Vol. 4). State ; Colvin,
M. State (Ct.App.1971); Sero, P.2d 503 N.M.
(Ct.App.1970).
Moreover, to consider we should refuse that the defendant issue for reason as specify
failed to it in his brief-in-chief
error, 21-2-1(15) (14) required is (Repl.Vol. 4).
(d) N.M.S.A.1953 time in defend for the first
sue was raised Puchi, reply brief. United States ant’s (9th 1971)Fredrick 441 F.2d Cir. States, (9th Cir. F.2d 536 Ariz.App. McCormick, 7 1947) State jurisdictional nor does
This issue rights question of fundamental involve a require spite consideration court. See
the rules and deci/ions of Garcia, McCarty, Albuquerque, 143 P. Scott Torres, 597, 435 ant-appellant. (Ct.App.1967). Gen., Atty. Norvell, Thomas L. David Gen., Atty. San- Whelan, Jr., Asst. Patrick respectfully several I these reasons plaintiff-appellee. Fe, ta dissent. *2 guide defined in New Mexico a to its
OPINION Specific use. intent not been defined has WOOD, Judge. Chief generally. instruc- appeal The is concerned with Schneiderman, In States v. 106 F. charges. on intent under two criminal tions Supp. Judge (U.S.D.C.S.D.Calif.1952), specific in- defined intent in an Mathes charged aggravat- was with Defendant jury: struction to the battery. 40A-3-5(C), N.M.S.A. ed Section 6, His re- (Repl.Vol. knowingly A does an act asserted quested instruction went to his knowingly which the law forbids who aggravated commit bat- lack of intent an the law com- fails do act which He claims tery because of his intoxication. the mands, purposely intending to violate refusing the the court erred recklessly law disregarding law or the quested instruction. specific acts with intent. the specific gist intent is the of Where refused intent The instruction on crime, instruction, requested, if must battery charge need aggravated
under the Gravson, given. State v. not con not be Defendant was reviewed. (1946). battery; aggravated victed con of was of victed of the lesser included offense Specific gist of the crime intent battery. pertaining The instructions to the a when it is made an of statuto- battery intent are aggravated to commit ry offense. simply pertinent battery convic Armijo People, 157 Colo. In tion. convict- the defendant was Defendant was also deadly weapon. The with a ed of assault rape. of N. intent.” “with statute contained the words requested M.S.A.1953 His The court said: instruction went to asserted lack the his The in the field of criminal distinction specified rape. intent to commit He claims intent” and a law a between request improperly was refused and well-recognized one “specific intent” is a the er given instruction the court was standing. given A crime long and is of roneous. The instruction informed a may combined with consist an act jury “rape requires specific in no or, hand, intent the other voluntary tent” and that drunkenness is a with consist an act combined justification neither excuse nor act, depend- intent to specific commit rape. requested crime of instruction The particular entirely upon the statute ing specific was refused because consid- the offense under which defines rape intent is not an element of defining eration. Where the statute 40A-9-2, supra. crime in- specific crime a intent as includes instruction given correct was specific criminality, gredient of its Scarborough, under State is essential and certainty as lished the same with Affirmed. of the crime. See other material element 32, p. Law Criminal It is so ordered. that in Colora- There no doubt but
COWAN, J., concurs. do, elsewhere, bodily injury upon commit SUTIN, J., specially concurring. necessary ele- and essential another is a SUTIN, Judge (specially concurring). assault ment of the offense known as deadly weapon. The meaning of with a “general intent” in criminal law should be the court]. of the court, use words “with intent” in a the trial no error preserved
statutory offense creates the doctrine of
review. Section 21-1-1(51)
(2)
(h), N.
M.S.A.1953
4) State v. Mora
Schultz,
ga,
1 Ohio Misc.
205 N.
(Ct.App.
*3
Neal,
People
E.2d
40 Cal.
1971).
App.2d 115,
People
intentional or of force another, person when done in a rude, angry insolent or manner.” Section 40A-3-4, GARCIA, Plaintiff-Appellant, Mella N.M.S.A.1953 “Aggravated Battery consists of the un- touching application
lawful or of force to ALBUQUERQUE CITY OF and R. J. Defendants-Appellees. Callahan, injure of another with intent to another.” Section No. 871. N.M.S.A.1953 Court of Rape as defined in 40A-9-2 omits Therefore, sqecific reference to “intent.” Aug. 23, Certiorari Granted 1972. not an essential as the majority opinion correctly states. [Em- phasis added]. “specific
Proof of intent” should be fi Trujillo,
nalized in New Mexico. says 224 P.2d majority “The rule seems to be that presumed from prohibited act, commission of [Emphasis .” This does added].
n appear to be the rule. Criminal Law § C.J.S. Hatley, (1963), says that “this is as a inferred matter of law.” See added]. People Neal, supra. “Specific intent” fact, proved independent as an ei-
ther direct or circumstantial evidence. Criminal Law 32. If there is directly substantial evidence which “specific
lishes intent” or from facts which inferred,
it can be then it is sufficient. matter, proof
If we do not finalize this intent”
will be identical. battery charge for
On the which defendant did not
ant
quest an instruction on to the attention of it was not called
Since