State v. Rayos

• Decision Date: 16 January 1967
• Docket Number: No. 8170,8170
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ireneo Felix RAYOS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 314

420 P.2d 314

77 N.M. 204

STATE of New Mexico, Plaintiff-Appellee, v. Ireneo Felix RAYOS, Defendant-Appellant.

No. 8170.

Supreme Court of New Mexico.

Jan. 16, 1967.

[77 NM 205] Boston E. Witt, Atty. Gen., Donald W. Miller, Paul J. Lacy, Asst. Attys. Gen., Santa Fe, for appellee.

Albert J. Rivera, Alamogordo, for appellant.

OPINION

E. T. HENSLEY, Jr., Chief Judge, Court of Appeals.

By an information Ireneo Felix Rayos was charged with having committed sexual assault on a female minor under the age of sixteen years. The criminal offense charged is prohibited by § 40A--9--9, N.M.S.A. 1953 Compilation.

A recital of the evidence adduced before the jury would serve no useful purpose. From a verdict of guilty and a sentence of one year in confinement the defendant now appeals.

The appellant's contention in the district court was that by reason of extreme intoxication he was unable to form a specific intent. The instructions to the jury submitted by the trial court contained two paragraphs numbered ten and eleven as follows:

'10. In this case it is necessary that in addition to the intended act which characterizes the offense, the act must be accompanied by a specific or particular intent without which such a crime may not be committed.

'Thus in the crime of sexual assault, a necessary element is the existence in the mind of the perpetrator of the specific intent to indecently handle or touch Kim Leo, and unless such intent so exists that crime is not committed.'

'11. You are instructed that voluntary drunkenness is no excuse for crime and, in this case, notwithstanding that you may believe from the evidence that at the time of the commission of the act charged, the Defendant was under the influence of intoxicating liquor voluntarily taken by him, this will not constitute any defense for him, and you should not acquit him on that ground alone.'

The appellant tendered his requested instruction numbered two as follows:

'Defendant's Requested Instruction No. 2

'No act committed by a person while in a state of voluntary intoxication is less criminal by reason of his having been in such condition. But whenever the actual existence of any particular purpose, motive or intent is a necessary element to constitute any particular species or degree of crime, the jury may take into consideration the fact that the accused was intoxicated at the time, in determining the purpose, motive or intent with which he committed the act. If the Defendant did not have the intent to commit the indecent handling or touching of Kim Leo as result of intoxication, then you will acquit the Defendant.'

The requested instruction was refused and no instruction was given to the jury on this...