State v. Kraul
| Decision Date | 22 March 1977 |
| Docket Number | No. 2754,2754 |
| Citation | 90 N.M. 314,563 P.2d 108,1977 NMCA 32 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Edward F. KRAUL, Defendant-Appellant. |
| Court | Court of Appeals of New Mexico |
Convicted 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.
Section 40A--22--24, N.M.S.A.1953 defines aggravated battery upon a peace officer. It reads:
Section 40A--22--23, N.M.S.A.1953 defines battery upon a peace officer. It reads:
The indictment charged defendant with violating § 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 § 40A--22--23, supra. The jury having convicted defendant of violating § 40A--22--23, supra, we are not concerned with the instruction on § 40A--22--24(B), supra.
Defendant claims that peace officer battery, § 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.
For an offense to be included within another offense, the offense must be 'necessarily included in the offense charged'. 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).
Paragraph A of § 40A--22--24, supra, defines the crime of aggravated battery upon a peace officer. Paragraphs B and C of § 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).
Whether battery upon a peace officer is included within aggravated battery upon a peace officer is determined by comparing § 40A--22--23, supra, with § 40A--22--24(A), supra. Contrary to defendant's contention, State v. Tanton, 88 N.M. 333, 540 P.2d 813 (1975) did not change this approach.
Comparing the two offenses, the significant difference is that the aggravated battery must be 'with intent to injure' while battery must be 'done in a rude, insolent or angry manner.' 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).
Defendant suggests that Duran was incorrectly decided. He states: 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.
Defendant's 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 'rude', 'insolent' and 'angry' in Webster's Third New International Dictionary (1966). The meaning of 'rude' includes offensive in manner or action; the use of force. The meaning of 'insolent' includes insult; contemptuous or brutal in behavior. The meaning of 'angry' includes various forms of displeasure.
Battery 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 the had notice.
The trial court refused defendant's request to instruct on simple battery as an included offense. Section 40A--3--4, N.M.S.A.1953 reads:
'Battery is the unlawful, intentional touching or application of force to the person of another, when done in a rude, insolent or angry manner.
'Whoever commits battery is guilty of a petty misdemeanor.'
One distinction between simple battery and aggravated battery upon a peace officer is the 'rude, insolent or angry' versus 'intent to injure' distinction previously discussed.
Another distinction is that simple battery is 'to the person of another' while aggravated battery upon a peace officer is 'to the person of a peace officer . . . while he is in the lawful discharge of his duties.' 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.
The 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. ---, 561 P.2d 925 (Ct.App. decided March 16, 1976), reversed on other grounds, 90 N.M. ---, 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's 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).
Both 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.
Defendant asserts the trial court erred in refusing his requested instruction. He states:
The 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).
There was no error in refusing the requested instruction on an officer's 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's initial approach to defendant and disregarded the officer's 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.
The trial court instructed the jury on the right to resist an unlawful arrest. State v Calhoun, 23 N.M. 681,...
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