{ "id": 2866837, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Edward F. KRAUL, Defendant-Appellant", "name_abbreviation": "State v. Kraul", "decision_date": "1977-03-22", "docket_number": "No. 2754", "first_page": "314", "last_page": "319", "citations": [ { "type": "official", "cite": "90 N.M. 314" }, { "type": "parallel", "cite": "563 P.2d 108" } ], "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": "270 A.2d 277", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "year": 1970, "opinion_index": 0 }, { "cite": "57 N.J. 151", "category": "reporters:state", "reporter": "N.J.", "case_ids": [ 1940851 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nj/57/0151-01" ] }, { "cite": "462 P.2d 421", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10567375 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/p2d/462/0421-01" ] }, { "cite": "463 P.2d 897", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10572860 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/p2d/463/0897-01" ] }, { "cite": "88 N.M. 541", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2842147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0541-01" ] }, { "cite": "145 P. 258", "category": "reporters:state_regional", "reporter": "P.", "year": 1914, "opinion_index": 0 }, { "cite": "19 N.M. 609", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4706533 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/nm/19/0609-01" ] }, { "cite": "192 P. 483", "category": "reporters:state_regional", "reporter": "P.", "year": 1920, "opinion_index": 0 }, { "cite": "26 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842118 ], "year": 1920, "opinion_index": 0, "case_paths": [ "/nm/26/0353-01" ] }, { "cite": "58 N.M. 446", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587670 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0446-01" ] }, { "cite": "170 P. 750", "category": "reporters:state_regional", "reporter": "P.", "year": 1917, "opinion_index": 0 }, { "cite": "23 N.M. 681", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2395375 ], "year": 1917, "opinion_index": 0, "case_paths": [ "/nm/23/0681-01" ] }, { "cite": "85 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2775643 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/85/0072-01" ] }, { "cite": "76 N.M. 187", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8501155 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0187-01" ] }, { "cite": "90 N.M. 129", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2871457 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0129-01" ] }, { "cite": "84 N.M. 133", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2769894 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0133-01" ] }, { "cite": "88 N.M. 32", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2840769 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/88/0032-01" ] }, { "cite": "90 N.M. 192", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2870419 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/90/0192-01" ] }, { "cite": "561 P.2d 925", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2873229, 2869949 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/90/0226-01", "/nm/90/0226-02" ] }, { "cite": "90 N.M. 226", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2869949, 2873229 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/90/0226-02", "/nm/90/0226-01" ] }, { "cite": "80 N.M. 406", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5358740 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/80/0406-01" ] }, { "cite": "88 N.M. 333", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837873 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/88/0333-01" ] }, { "cite": "82 N.M. 569", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331133 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0569-01" ] }, { "cite": "90 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2873074 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/nm/90/0260-01" ] }, { "cite": "87 N.M. 394", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2831770 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/87/0394-01" ] }, { "cite": "82 N.M. 487", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326487 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0487-01" ] }, { "cite": "89 N.M. 162", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865738 ], "weight": 3, "year": 1976, "opinion_index": 0, "case_paths": [ "/nm/89/0162-01" ] } ], "analysis": { "cardinality": 651, "char_count": 15895, "ocr_confidence": 0.79, "pagerank": { "raw": 4.1602984415840037e-07, "percentile": 0.911838682486894 }, "sha256": "1b66c3b1389e50e61caaa257eaf5e09ce98a5f2a3bd3c8573f5d7e96432d4d8b", "simhash": "1:15bec2aa4c202341", "word_count": 2596 }, "last_updated": "2023-07-14T21:34:48.706767+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HERNANDEZ and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Edward F. KRAUL, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of battery upon a peace officer, defendant appeals. The battery took place during an altercation involving defendant, his mother, his grandmother and a Santa Fe police officer. The appeal presents issues concerning instructions given and refused. There was no evidentiary problem with any of the issues. There was evidence supporting the giving of the instructions given and there was evidence supporting the giving of instructions which were refused. We discuss: (1) battery upon a peace officer as an offense included in aggravated battery upon a peace officer; (2) battery as an offense included in battery upon a peace officer; (3) refused instruction on investigative stop; and (4) refused instruction on self-defense.\nPeace Officer Battery as Included Within Peace Officer Aggravated Battery\nSection 40A-22-24, N.M.S.A.1953 (2d Repl. Vol. 6) defines aggravated battery upon a peace officer. It reads:\n\u201cA. Aggravated battery upon a peace officer consists of the unlawful touching or application of force to the person of a peace officer with intent to injure that peace officer while he is in the lawful discharge of his duties.\n\u201cB. Whoever commits aggravated battery upon a peace officer, inflicting an injury to the peace officer which is not likely to cause death or great bodily harm, but does cause painful temporary disfigurement or temporary loss or impairment of the functions of any member or organ of the body, is guilty of a fourth degree felony.\n\u201cC. Whoever commits aggravated battery upon a peace officer, inflicting great bodily harm, or does so with a deadly weapon or in any manner whereby great bodily harm or death can be inflicted, is guilty of a third degree felony.\u201d\nSection 40A-22-23, N.M.S.A.1953 (2d Repl. Vol. 6) defines battery upon a peace officer. It reads:\n\u201cA. Battery upon a peace officer is the unlawful, intentional touching or application of force to the person of a peace officer while he is in the lawful discharge of his duties, when done in a rude, insolent or angry manner.\n\u201cB. Whoever commits battery upon a peace officer is guilty of a fourth degree felony.\u201d\nThe indictment charged defendant with violating \u00a7 40A-22-24(A), supra, by committing the offense in a manner whereby great bodily harm could be inflicted. Section 40A-22-24(C), supra. At the close of the evidence, the trial court ruled there was insufficient evidence to submit Paragraph C, great bodily harm, to the jury. The trial court instructed on aggravated battery not likely to cause great bodily harm, which is Paragraph B. The trial court also instructed on \u00a7 40A-22 \u2014 23, supra. The jury having convicted defendant of violating \u00a7 40A-22-23, supra, we are not concerned with the instruction on \u00a7 40A-22 \u2014 24(B), supra.\nDefendant claims that peace officer battery, \u00a7 40A-22-23, supra, was not charged in the indictment; that not having been given notice of this charge his conviction must be reversed and he should be discharged. He relies on State v. Trivitt, 89 N.M. 162, 548 P.2d 442 (1976) and State v. Crump, 82 N.M. 487, 484 P.2d 329 (1971). Both Trivitt and Crump involved notice to defendant of a narrowly drawn charge and the limitations resulting from the narrow charge. Neither decision is applicable if peace officer battery is an offense included within peace officer aggravated battery. See State v. Trivitt, supra.\nFor an offense to be included within another offense, the offense must be \u201cnecessarily included in the offense charged\u201d. R.Crim.P. 44(d). Accordingly, we look to the offense charged in the indictment. State v. Medina, 87 N.M. 394, 534 P.2d 486 (Ct.App.1975). For an offense to be necessarily included, the greater offense cannot be committed without also committing the lesser. State v. Medina, supra; see State v. Sandoval, 90 N.M. 260, 561 P.2d 1353 (Ct.App. decided March 8, 1977).\nParagraph A of \u00a7 40A-22-24, supra, defines the crime of aggravated battery upon a peace officer. Paragraphs B and C of \u00a7 40A-22-24, supra, go to the method by which the crime is committed. See State v. Chavez, 82 N.M. 569, 484 P.2d 1279 (Ct.App.1971).\nWhether battery upon a peace officer is included within aggravated battery upon a peace officer is determined by comparing \u00a7 40A-22-23, supra, with \u00a7 40A-22-24(A), supra. Contrary to defendant\u2019s contention, State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) did not change this approach.\nComparing the two offenses, the significant difference is that the aggravated battery must be \u201cwith intent to injure\u201d while battery must be \u201cdone in a rude, insolent or angry manner.\u201d Considering a similar distinction in non-peace officer statutes, we held that battery was included within the offense of aggravated battery. State v. Duran, 80 N.M. 406, 456 P.2d 880 (Ct.App.1969).\nDefendant suggests that Duran was incorrectly decided. He states: \u201cIf one batters a peace officer with an intent to injure him it is aggravated battery on a peace officer no matter how courteously, calmly or unenraged one was. One simply does not need to be rude or angry to have an intent to injure.\u201d The contention is that one can commit aggravated battery (intent to injure) without also committing battery (rude, insolent or angry manner) and, therefore, battery is not an included offense.\nDefendant\u2019s contention reduces to an exercise in semantics. One cannot commit battery with an intent to injure without also proceeding in a rude, insolent or angry manner. See the various definitions of \u201crude\u201d, \u201cinsolent\u201d and \u201cangry\u201d in Webster\u2019s Third New International Dictionary (1966). The meaning of \u201crude\u201d includes offensive in manner or action; the use of force. The meaning of \u201cinsolent\u201d includes insult; contemptuous or brutal in behavior. The meaning of \u201cangry\u201d includes various forms of displeasure.\nBattery upon a peace officer is a charge included within the charge of aggravated battery upon a peace officer. The battery upon a peace officer instruction was proper; his conviction is for an offense included within the charge of which he had notice.\nBattery as Included Within Peace Officer Battery\nThe trial court refused defendant\u2019s request to instruct on simple battery as an included offense. Section 40A-3 \u2014 4, N.M.S. A.1953 (2d Repl. Vol. 6) reads:\n\u201cBattery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.\n\u201cWhoever commits battery is guilty of a petty misdemeanor.\u201d\nOne distinction between simple battery and aggravated battery upon a peace officer is the \u201crude, insolent or angry\u201d versus \u201cintent to injure\u201d distinction previously discussed.\nAnother distinction is that simple battery is \u201cto the person of another\u201d while aggravated battery upon a peace officer is \u201cto the person of a peace officer . . . while he is in the lawful discharge of his duties.\u201d Both offenses involve persons. One cannot batter a peace officer while in the lawful discharge of his duties without battering the person of another. There being evidence that the police officer was not in the lawful discharge of his duties in connection with the altercation, the trial court erred in refusing to instruct on simple battery. State v. Duran, supra.\nRefusal to Instruct on an Investigatory Stop\nThe jury was instructed that to commit battery upon a peace officer, there must be proof that the officer was in the lawful discharge of his duties. See State v. Bloom, 90 N.M. 226, 561 P.2d 925 (Ct.App. decided March 16, 1976), reversed on other grounds, 90 N.M. 192, 561 P.2d 465, Sup.Ct., decided March 10, 1977. There was no instruction defining lawful discharge of duties. No such instruction was requested although the lawfulness of the officer\u2019s actions was a severely disputed factual question. See State v. Dosier, 88 N.M. 32, 536 P.2d 1088 (Ct.App.1975); State v. Bell, 84 N.M. 133, 500 P.2d 418 (Ct.App.1972).\nBoth parties submitted a requested instruction on when a police officer may approach a person to investigate possible criminal behavior. See State v. Galvan, 90 N.M. 129, 560 P.2d 550 (Ct.App. decided February 8, 1977). Both requests were refused.\nDefendant asserts the trial court erred in refusing his requested instruction. He states: \u201cWhen, as in the case at bar, there is a factual question as to what happened, it is necessary to inform the jury when the police have a legal right to detain a person. This is necessary to ensure that the jury\u2019s determination of whether the officer was lawfully discharging his duties is based on a legal standard.\u201d\nThe purpose of an instruction is to enlighten the jury. An instruction which is confusing, rather than enlightening, is properly refused. State v. Selgado, 76 N.M. 187, 413 P.2d 469 (1966). In the case of a failure to instruct, a correct written instruction must be tendered. State v. Dutchover, 85 N.M. 72, 509 P.2d 264 (Ct.App.1973).\nThere was no error in refusing the requested instruction on an officer\u2019s right to detain a person. The requested instruction was incomplete and, therefore, it was not a correct instruction. The requested instruction was incomplete because it focused only on the officer\u2019s initial approach to defendant and disregarded the officer\u2019s attempt to arrest after defendant allegedly hit the officer. In light of the evidence, the requested instruction would have confused the jury on the issue of lawful discharge of duties. See State v. Bloom, supra.\nRefused Instruction on Self-Defense\nThe trial court instructed the jury on the right to resist an unlawful arrest. State v. Calhoun, 23 N.M. 681, 170 P. 750 (1917). No issue is raised concerning this instruction. See Comment, 7 Nat. Res. J. 119 (1967), Criminal Law \u2014 Arrest\u2014The Right to Resist Unlawful Arrest.\nDefendant also requested an instruction on self-defense in a non-homicide situation. See U.J.I. Crim. 41.51. The trial court refused the requested instruction. Defendant asserts this was error.\nThere are two parts to this issue: (1) there being no question that there was evidence supporting a self-defense instruction, was defendant entitled to such an instruction; and (2) if entitled to an instruction, was the requested instruction a proper instruction?\nState v. Heisler, 58 N.M. 446, 272 P.2d 660 (1954) states on unqualified right to a self-defense instruction in a criminal case when there is evidence which supports the instruction. Heisler involved private individuals. Self-defense instructions have been involved in cases where self-defense was asserted as a defense in a matter involving an attack on a police officer. State v. Selgado, supra; State v. Middleton, 26 N.M. 353, 192 P. 483 (1920); State v. Calhoun, supra; Brobst v. El Paso & Southwestern Co., 19 N.M. 609, 145 P. 258 (1914). From these decisions we infer that the giving of a self-defense instruction is not error. Our question is the opposite \u2014 is it error to refuse a self-defense instruction when an instruction has been given on the right to resist an unlawful arrest? Compare State v. Smith, 88 N.M. 541, 543 P.2d 834 (Ct.App.1975).\nThe right of self-defense is not barred simply because the other person in the affray is a police officer. There are, however, limitations on this right. 1 Wharton\u2019s Criminal Law and Procedure (Anderson 1957) \u00a7 216 states:\n\u201cThe rule of self-defense applies to the case of an officer attempting to make an arrest, who abuses his authority and transcends the bounds thereof by the use of unnecessary force and violence, as well as to the case of a private individual who unlawfully uses such force and violence.\n\u201cAs against an officer using necessary force to overcome resistance to an arrest, or using proper force to prevent an escape, the person sought to be arrested has no right to act in self-defense. When a man puts himself in a state of resistance and openly defies the officers of the law, he is not allowed to take advantage of his own wrong, if his life is thereby endangered, and set up the excuse of self-defense.\u201d\nGray v. State, 463 P.2d 897 (Alaska 1970) states:\n\u201cThe overwhelming weight of authority indicates that a person subjected to an unlawful arrest may use reasonable force to defend himself. In the case of Miller v. State, 462 P.2d 421 (Alaska 1969), we modified this rule by holding that there was no right to resist a peaceful arrest, even though the arrest was unlawful. The Miller case did not deal, however, with the circumstances of the present case, where it has been claimed that the arrest was unlawful because Officer Strong used unprivileged force to effect the arrest. An officer in making an arrest is privileged by statute to use only that force which is necessary to restrain the arrested person. To the use of necessary force the arrested person cannot claim the privilege of self-defense. If more than necessary force is used, then the officer commits an unprivileged assault on the arrested person. To an arresting officer\u2019s unprivileged use of force, the arrested person must have the right to use reasonable force to defend himself.\u201d\nCriticizing the right to resist an unlawful arrest, Comment, 7 Nat. Res. J., supra, at 126 states: \u201cWhen an officer attempting to make an arrest abuses his authority and uses unnecessary force or violence, the right to self-defense arises, whether or not the arrest was otherwise lawful.\u201d See State v. Mulvihill, 57 N.J. 151, 270 A.2d 277 (1970).\nOne does have a right to defend oneself from a police officer. This right exists whether the attempted arrest is lawful or unlawful. This right, however, is limited. One may defend oneself against excessive use of force by the officer. One does not have the right to self-defense when the officer is using necessary force to effect an arrest. See Brobst v. El Paso & Southwestern Co., supra; compare State v. Calhoun, supra.\nThe right of self-defense against a police officer is a concept different from the right to resist an unlawful arrest. Self-defense is for the purpose of protecting a person\u2019s bodily integrity and health. State v. Mulvihill, supra. The purpose of resistance to an unlawful arrest is to prevent the arrest. Comment, 7 Nat. Res. J., supra. In jurisdictions where the right to resist an unlawful arrest has been abolished, the right of self-defense against excessive force by a police officer continues to exist. Gray v. State, supra: State v. Mulvihill, supra.\nWe hold that defendant did have a limited right of self-defense against the police officer, that he was entitled to an instruction on that limited right. The instruction concerning resistance to an unlawful arrest did not cover defendant\u2019s right to self-defense; the unlawful arrest instruction went only to the arrest; it did not cover the right to defend against excessive force whether or not the arrest was unlawful.\nAlthough defendant was entitled to an instruction on his limited right to self-defense, refusal of the requested instruction was not error. The requested instruction did not limit defendant\u2019s right of self-defense to situations where the officer used excessive force; the requested instruction would have given defendant an unlimited right of self-defense.\nThe requested instruction was properly refused because it was an incorrect statement of the law. State v. Dutchover, supra.\nFor failure to instruct on simple battery as an offense included with the charge of aggravated battery upon a peace officer, the conviction is reversed. The cause is remanded with instructions to grant defendant a new trial.\nIT IS SO ORDERED.\nHERNANDEZ and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Sarah M. Singleton, Pickard & Singleton, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "563 P.2d 108\nSTATE of New Mexico, Plaintiff-Appellee, v. Edward F. KRAUL, Defendant-Appellant.\nNo. 2754.\nCourt of Appeals of New Mexico.\nMarch 22, 1977.\nWrit of Certiorari Denied April 20, 1977.\nSarah M. Singleton, Pickard & Singleton, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Paquin M. Terrazas, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0314-01", "first_page_order": 350, "last_page_order": 355 }