{ "id": 5358740, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Jake DURAN, Defendant-Appellant", "name_abbreviation": "State v. Duran", "decision_date": "1969-05-29", "docket_number": "No. 303", "first_page": "406", "last_page": "408", "citations": [ { "type": "official", "cite": "80 N.M. 406" }, { "type": "parallel", "cite": "456 P.2d 880" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "34 P. 448", "category": "reporters:state_regional", "reporter": "P.", "year": 1893, "opinion_index": 0 }, { "cite": "7 N.M. 241", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4657555 ], "year": 1893, "opinion_index": 0, "case_paths": [ "/nm/7/0241-01" ] }, { "cite": "43 N.M. 138", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568276 ], "weight": 2, "year": 1939, "opinion_index": 0, "case_paths": [ "/nm/43/0138-01" ] }, { "cite": "78 A.L.R.2d 908", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "opinion_index": 0 }, { "cite": "66 N.M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848430 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0289-01" ] }, { "cite": "419 P.2d 219", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2805699, 2807333 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0007-01", "/nm/77/0006-01" ] }, { "cite": "77 N.M. 7", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805699 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0007-01" ] }, { "cite": "59 N.M. 85", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589290 ], "weight": 4, "year": 1955, "opinion_index": 0, "case_paths": [ "/nm/59/0085-01" ] }, { "cite": "54 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582010 ], "weight": 2, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/54/0056-01" ] }, { "cite": "110 P. 854", "category": "reporters:state_regional", "reporter": "P.", "year": 1910, "opinion_index": 0 }, { "cite": "15 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 206030 ], "year": 1910, "opinion_index": 0, "case_paths": [ "/nm/15/0556-01" ] }, { "cite": "76 N.M. 376", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502468 ], "weight": 5, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0376-01" ] } ], "analysis": { "cardinality": 334, "char_count": 5634, "ocr_confidence": 0.678, "pagerank": { "raw": 3.6522782934977903e-07, "percentile": 0.8901331699261231 }, "sha256": "db5c56cda1a7e740f02bd2647040b7c9ad4c0d503c025e553abfa5a6dffdbbec", "simhash": "1:e7ac940b57a0edfe", "word_count": 919 }, "last_updated": "2023-07-14T15:41:23.226975+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN and HENDLEY, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Jake DURAN, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Judge.\nDefendant was convicted on two charges of aggravated battery. His appeal asserts the trial court erred in: (1) failing to submit a form of verdict covering the defense of insanity at the time the offenses were committed and (2) failing to instruct on lesser included offenses.\nSection 41-13-3, N.M.S.A.1953 (Repl.Vol. 6, Supp.1967) states in part:\n\u201cWhen the defense of 'not guilty by reason of insanity at the time of commission of an offense\u2019 is raised upon trial, the issue shall be determined * * * in jury trials by a special verdict of the jury. * * *\u201d\nThe jury was instructed concerning the issue of defendant\u2019s insanity at the time of commission of the two offenses. The trial court, however, did not submit a special verdict to the jury. In this case, the failure to comply with \u00a7 41-13-3, supra, is not reversible error.\nDefendant requested a form of special verdict. He contends, and we agree, that the record, showing settling of the instructions and the reading of the instructions to the jury, is not clear whether the special verdict form was to be submitted. The instructions did not identify the forms of verdict to be submitted but referred only to \u201c* * * proper forms of verdict. * *\nAfter closing arguments were completed, the trial court informed the jury: \u201c* * * I want to make it a little clearer in regard to these forms of verdict. * * *\u201d The court then stated that the jury would consider only two forms of verdict (guilty and not guilty) as to each \u25a0charge. There was no mention of a spe\u2022cial verdict concerning the insanity defense.\nDefendant made no objection to the trial \u2022court\u2019s explanation concerning the verdicts submitted for the jury\u2019s consideration. There was no objection to the absence of the special verdict form until the guilty verdict had been returned and the jury had been discharged.\nState v. James, 76 N.M. 376, 415 P.2d 350 (1966) states that it was defendant\u2019s duty \u201c* * * to point out to the trial court any claimed errors in the administration of justice as they occurred, so that the court might have corrected of [sic] avoided such errors. * * *\u201d\nDefendant knew of the forms of verdict being submitted before the jury began its deliberations. Yet, defendant waited until after the verdict was returned and until after the jury was discharged before objecting to the failure to submit a form of special verdict. He did not point out the claimed error when it occurred. Compare Territory v. Kennedy, 15 N.M. 556, 110 P. 854 (1910). Defendant waived his right to object to the omission. See Mitchell v. Allison, 54 N.M. 56, 213 P.2d 231 (1949).\nFailure to instruct on lesser included offenses.\nThe trial court refused defendant\u2019s request to instruct on assault, aggravated assault and battery. See \u00a7\u00a7 40A-3-1, 40A-3-2 and 40A-3-4, N.M.S.A.1953 (Repl.Vol. 6). Defendant contends these crimes were lesser offenses included in the charge of aggravated battery. See \u00a7 40A-3-5, N.M.S.A.1953 (Repl.Vol. 6). Defendant claims the trial court erred in refusing to instruct the jury concerning these asserted lesser included offenses.\nDefendant had the right to have instructions on lesser included offenses submitted to the jury. Section 41-13-1, N.M.S.A.1953 (Repl.Vol. 6); 5 Anderson, Wharton\u2019s Criminal Law and Procedure \u00a7 2099 (1957). This right depends, however, on there being some evidence tending to establish the lesser included offenses. As stated in State v. Sandoval, 59 N.M. 85, 279 P.2d 850 (1955):\n\u201c* * * [I]t is only where there is some evidence tending to reduce the offense charged to a lessor [sic] degree or grade, that a refusal to instruct as to included offenses, is error. * * *\u201d\nState v. Ortega, 77 N.M. 7, 419 P.2d 219 (1966); State v. James, supra.\nBattery is included within the offense of aggravated battery. Battery requires an \u201c* * * intentional touching or application of force to the person.of another * * Section 40A-3-4, supra. Aggravated battery requires that the touching or application of force be with \u201c* * * intent to injure. * * *\u201d Section 40A-3-5, supra. The evidence on the issue of intent is such that the jury could have found no intent at all (see State v. Padilla, 66 N.M. 289, 347 P.2d 312, 78 A.L.R.2d 908 (1959) ), or an intent to apply force or an intent to injure. The proof here is such that we cannot say that defendant should have been convicted of aggravated battery or acquitted. State v. James, supra; State v. Sandoval, supra.\nThere was evidence tending to establish the included offense of battery. The trial court erred in refusing to instruct on this lesser included offense. State v. Mitchell, 43 N.M. 138, 87 P.2d 432 (1939); compare Chacon v. Territory, 7 N.M. 241, 34 P. 448 (1893).\nWe need not decide whether either assault or aggravated assault are offenses included in the charge of aggravated battery. Even if they are included offenses, the proof here is of a battery. Defendant should be convicted of some degree of battery (either aggravated or simple) or acquitted. State v. James, supra; State v. Sandoval, supra.\nFor the error in failing to instruct on the included offense of battery, the cause is reversed with instructions to set aside the judgment and sentence and grant defendant a new trial.\nIt is so ordered.\nOMAN and HENDLEY, JJ., concur.", "type": "majority", "author": "WOOD, Judge." } ], "attorneys": [ "Thomas A. Sandenaw, Charles W. Durrett, Durrett & Conway, Alamogordo, for appellant.", "James A. Maloney, Atty. Gen., Vince D\u2019Angelo, Asst. Atty. Gen., Santa Fe, for appellee." ], "corrections": "", "head_matter": "456 P.2d 880\nSTATE of New Mexico, Plaintiff-Appellee, v. Jake DURAN, Defendant-Appellant.\nNo. 303.\nCourt of Appeals of New Mexico.\nMay 29, 1969.\nRehearing Denied June 24, 1969.\nThomas A. Sandenaw, Charles W. Durrett, Durrett & Conway, Alamogordo, for appellant.\nJames A. Maloney, Atty. Gen., Vince D\u2019Angelo, Asst. Atty. Gen., Santa Fe, for appellee." }, "file_name": "0406-01", "first_page_order": 462, "last_page_order": 464 }