State v. Cruz
| Decision Date | 31 July 1974 |
| Docket Number | No. 1253,1253 |
| Citation | 525 P.2d 382,1974 NMCA 77,86 N.M. 455 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Steve CRUZ, Jr., Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Defendant was convicted of aggravated assault in violation of Section 40A--3--2, N.M.S.A.1953 . Defendant appeals alleging one point of error: that the trial court gave instructions which were inconsistent, contradictory and erroneous.
We reverse.
During the early evening of January 12, 1973 the defendant and another individual drove into the Campus Drive-In and placed an order through an intercommunication system. The carhop, a fifteen year old boy, took the order out to defendant's car, placed the tray in the window and told the defendant how much the check was. The defendant, who had been drinking, took some change out of his pocket and seemed to have a hard time counting it. After a few seconds he put the change back in his pocket, pulled out a small pistol and pointed it at the carhop and asked him if he wanted it. The carhop testified that because of defendant's threatening manner he understood that defendant was asking him if he wanted to get shot. After a moment the defendant put the gun back in his pocket. He then took out some money and paid the carhop. Defendant and his companion ate what they had ordered, then drove to the drive-up window, placed an order for some chicken, paid for it and left.
The pertinent instructions are:
'2. This is a criminal case in which the State of New Mexico, by an information filed in this Court on the 22nd day of January, 1973, charges: That on or about January 13, 1973, Steve Cruz, Jr., unlawfully assaulted Rocky Meeks with a deadly weapon, to-wit: a gun, contrary to Section 40A--3--2, N.M.S.A.1953 Comp.
'5. The material allegations contained in the information which must be proved to your satisfaction and beyond a reasonable doubt by the evidence introduced in this case, are:
(a) That Steve Cruz, Jr. by any unlawful intentional act, threat, or menancing conduct caused Rocky Meeks to reasonably believe that he was in danger of receiving an immediate battery.
(b) That the act, threat or menacing conduct was done by assaulting or striking at Rocky Meeks with a deadly weapon.
(c) That this occurred in Roosevelt County, New Mexico, on the 13th day of January, 1973, or at some other time within three years immediately preceding the 22nd day of January, 1973, that being the date that the Information was filed in this Court.
'Unlawful' means contrary to law and without legal excuse or justification.
'Deadly weapon' means any weapon which is capable of producing death or great bodily harm, and includes any firearm, whether loaded or unloaded.
'12. An intent to do physical harm or bodily injury is a necessary element of the offense of aggravated assault. If you find from all the evidence in this case that the defendant did not intend to physically harm or do bodily injury to Rocky Meeks, then you must find him not guilty.
However, a criminal assault may be committed by a wanton or reckless act, or by an act done not with an evil purpose, but for fun, or as a practical joke.'
Section 40A--3--1, N.M.S.A.1953 (2d Repl.Vol. 6) provides in part:
'Assault consists of either: . . .
B. any unlawful act, threat or menancing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery;'
Section 40A--3--2, supra, provides in part:
'Aggravated assault consists of either:
A. unlawfully assaulting or striking at another with a deadly weapon;
Whoever commits aggravated assault is guilty of a fourth degree felony.'
Defendant contends that specific intent is an essential element of the crime of aggravated assault and that the trial court erred in not...
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State v. Branch
...In State v. Cruz , this Court held that specific intent is not an essential element of aggravated assault. 1974-NMCA-077, ¶ 7, 86 N.M. 455, 525 P.2d 382. As a principle of construction, when a statute does not refer to intent, which is the case with Section 30-3-1(B), we normally presume th......
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United States v. Rede–Mendez
...(“Proof of general criminal intent is also a necessary element of the offense of aggravated assault.” (citing State v. Cruz, 86 N.M. 455, 525 P.2d 382 (N.M.Ct.App.1974))). For crimes without any express statutory mens rea requirement, we look to how state courts have construed the offense. ......
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State v. Branch
...In State v. Cruz , this Court held that specific intent is not an essential element of aggravated assault. 1974–NMCA–077, ¶ 7, 86 N.M. 455, 525 P.2d 382. As a principle of construction, when a statute does not refer to intent, which is the case with Section 30–3–1(B), we normally presume th......
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United States v. Hammons
...aggravated assault not an intent to injure.' ") (emphasis added by the Tenth Circuit)(quoting State v. Cruz, 1974-NMCA-077, ¶ 8, 86 N.M. 455, 525 P.2d 382, 384 ). See also id. at 1249 ("When adopted by the New Mexico Supreme Court, New Mexico's uniform jury instructions are mandatory and pr......