{
  "id": 5363579,
  "name": "STATE of New Mexico, Plaintiff-Appellee, v. Charles P. WALSH, Defendant-Appellant",
  "name_abbreviation": "State v. Walsh",
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  "last_updated": "2023-07-14T14:30:08.757301+00:00",
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  "casebody": {
    "judges": [
      "OMAN and WOOD, JJ., concur."
    ],
    "parties": [
      "STATE of New Mexico, Plaintiff-Appellee, v. Charles P. WALSH, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "OPINION\nHENDLEY, Judge.\nConvicted of armed robbery, (\u00a7 40 A-16-2; N.M.S.A.1953 (Repl. Vol. 6)) defendant appeals raising six points for reversal. Defendant\u2019s second part of the first point is dispositive of the appeal. We reverse for the reasons hereinafter stated.\nDefendant contends in his first point that:\n\u201cTHE TRIAL COURT ERRED IN REFUSING TO QUASH THE INDICTMENT FOR FAILURE TO INCLUDE AN ESSENTIAL ELEMENT OF THE CRIME CHARGED AND FOR FAILURE TO INSTRUCT THE JURY ON ALL OF THE ELEMENTS OF THE CRIME CHARGED.\u201d\nTHE INDICTMENT.\nThe indictment reads in part: \u201cThe Grand Jury Charges: * * * Charles P. Walsh, * * * of ROBBERY WHILE ARMED WITH A DEADLY WEAPON, contrary to Sections 40A-16-2, 40A-29-3(B), and 40A-1-13, N.M.S.A.1953. * *\u201d D\u00e9fendant contends that the phrase \u201cROBBERY WHILE ARMED WITH A DEADLY WEAPON\u201d in the indictment failed to specify the crime of armed robbery since the element of \u201cuse or threatened use of force or violence\u201d was not included.\nThis contention must fail for two reasons. First, the phrase \u201cby use or threatened use of force or violence\u201d is a part of the definition of, and is included in, the word \u201crobbery.\u201d Section 40A-16-2, supra. Section 41-6-7(1) (a), N.M.S.A. 1953 (Repl. Vol. 6) states an indictment may charge \"[b]y using the name given to the offense by the common law or by a statute.\u201d Secondly, it is well established in this jurisdiction that an indictment is valid and sufficient if it identifies the crime charged by reference to the statute establishing the offense. State v. Lucero, 79 N.M. 131, 440 P.2d 806 (Ct.App.1968); Village of Deming v. Marquez, 74 N.M. 747, 398 P.2d 266 (1965); State v. Lott, 73 N.M. 280, 387 P.2d 855 (1963).\nTHE INSTRUCTIONS.\nThe trial court instructed the jury that \u201c* * * Robbery While Armed with a' Deadly Weapon consists of committing a theft of a thing of value from the person or immediate control of another while armed with a deadly weapon.\u201d\nThe trial court refused defendant\u2019s Requested Instruction No. 1 which states in part:\n\u201cRobbery as defined in Sec. 40A-16-2 of the New Mexico Criminal Code is committed by one who, commits a theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence. That section further provides that whoever commits this crime of robbery while armed with a deadly weapon is guilty of a second degree felony.\u201d\nThe record does not affirmatively show defendant\u2019s objection to the court\u2019s instruction. However, we consider the refusal to give an instruction containing an essential element of the crime charged, in the absence of any other instructions covering that element, to be jurisdictional. Compare Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, 162 A.L.R. 1330 (1945), wherein it was stated:\n\u201cIt is true that no exception was taken to the trial court\u2019s charge. * * * [But] * * * where the error is so fundamental as not to submit to the jury the essential ingredients of the only offense on which the conviction could rest, we think it is necessary to take note of it on our own motion. * * *\u201d\nJurisdictional questions may be raised for the first time on appeal. See State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.) decided September 19, 1969, and authorities cited therein.\nThe cases are too numerous to cite for the proposition that an essential element of the crime of robbery is the \u201cuse or threatened use of force or violence.\u201d Some courts use different words, such as, force or fear, force or intimidation, violence or threats, and so on. Section 40A-16-2, supra defines robbery as:\n\u201c* * * the theft of anything of value from the person of another or from the immediate control of another, by use or threatened use of force or violence.\u201d (Emphasis added.)\nSee also 2 Anderson, Wharton\u2019s Criminal Law and Procedure, \u00a7 554 (1957).\nPlaintiff contends \u201cthat force or violence automatically exists when a deadly weapon is displayed or used as it was in this case.\u201d Plaintiff relies on State v. Sanchez, 78 N.M. 284, 430 P.2d 781 (Ct. App.1967) and states that since \u201c[n]o weapon was used\u201d in that case that we \u201c[i]mply that if a weapon had been used there would not have been any need for testimony from the victim that he was induced to part with his chattels by the use of force or violence.\u201d We do not so read Sanches.\nSanches simply states that since the victim did not testify as to the manner in which the defendant put his fist against the victim\u2019s back nor did the victim testify as to his reaction-to this act, we could not \u25a0ascertain \u201cwithout more, [what] constitute^] the force or fear sufficient to sustain a robbery conviction [.]\u201d\nFurther, the fact that a weapon was used does not reach the issue. The \u00fase of a weapon is evidence concerning the'use of force or violence. The issue here is not whether there was evidence of force or violence but the failure to inform the jury of the elements of the crime charged.\n[6] Since \u201cuse or threatened use of force or violence\u201d is an essential element of the crime charged a failure to instruct on this essential element is reversible error. State v. Grayson, 50 N.M. 147, 172 P.2d 1019 (1946); State v. Benton, 275 N.C. 378, 167 S.E.2d 775 (1969).\nReversed and remanded.\nIt is so ordered.\nOMAN and WOOD, JJ., concur.",
        "type": "majority",
        "author": "HENDLEY, Judge."
      }
    ],
    "attorneys": [
      "William H. Carpenter, Albuquerque, for defendant-appellant.",
      "James A. Maloney, Atty. Gen., Santa Fe, Ray Shollenbarger, Asst. Atty. Gen., for plaintiff-appellee."
    ],
    "corrections": "",
    "head_matter": "463 P.2d 41\nSTATE of New Mexico, Plaintiff-Appellee, v. Charles P. WALSH, Defendant-Appellant.\nNo. 353.\nCourt of Appeals of New Mexico.\nDec. 12, 1969.\nWilliam H. Carpenter, Albuquerque, for defendant-appellant.\nJames A. Maloney, Atty. Gen., Santa Fe, Ray Shollenbarger, Asst. Atty. Gen., for plaintiff-appellee."
  },
  "file_name": "0065-01",
  "first_page_order": 111,
  "last_page_order": 113
}