State v. Walsh

Decision Date12 December 1969
Docket NumberNo. 353,353
Citation81 N.M. 65,463 P.2d 41,1969 NMCA 123
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Charles P. WALSH, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
OPINION

HENDLEY, Judge.

Convicted of armed robbery, (§ 40A--16--2, N.M.S.A.1953 (Repl. Vol. 6)) defendant appeals raising six points for reversal. Defendant's second part of the first point is dispositive of the appeal. We reverse for the reasons hereinafter stated.

Defendant contends in his first point that:

'THE 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.'

THE INDICTMENT.

The indictment reads in part: 'The 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. * * *' Defendant contends that the phrase 'ROBBERY WHILE ARMED WITH A DEADLY WEAPON' in the indictment failed to specify the crime of armed robbery since the element of 'use or threatened use of force or violence' was not included.

This contention must fail for two reasons. First, the phrase 'by use or threatened use of force or violence' is a part of the definition of, and is included in, the word 'robbery.' 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.' 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).

THE INSTRUCTIONS.

The trial court instructed the jury that '* * * 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.'

The trial court refused defendant's Requested Instruction No. 1 which states in part:

'Robbery 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.'

The record does not affirmatively show defendant's objection to the court's 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:

'It is true that no exception was taken to the trial court's 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. * * *'

Jurisdictional 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.

The cases are too numerous to cite for the proposition that an essential element of the crime of robbery is the 'use or threatened use of force or violence.' 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:

'* * * 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.' (Emphasis added.)

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23 cases
  • Manson v. State
    • United States
    • Wisconsin Supreme Court
    • April 29, 1981
    ...v. Stephens, 66 Ariz. 219, 186 P.2d 346, 350-351 (1947); Whitehead v. State, 526 P.2d 959, 962 (Okl.Cr.1974); State v. Walsh, 81 N.M. 65, 463 P.2d 41, 42-43 (Ct.App.1969); State v. Barnett, 111 Ariz. 391, 531 P.2d 148 (en banc 1975); People v. Thomas, 181 Colo. 317, 509 P.2d 592 (1973); Com......
  • State v. Trevino
    • United States
    • Court of Appeals of New Mexico
    • July 2, 1991
    ...who had not been convicted based on jury instructions including all elements of the crime, we acknowledged that State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969), was the originator of the concept of jurisdictional error in jury instructions. Walsh, in turn, relied on Screws v. United S......
  • State v. Orosco
    • United States
    • New Mexico Supreme Court
    • January 7, 1992
    ...this contention requires us to review, once again, the concept of "jurisdictional error." Beginning apparently with State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969), New Mexico courts have referred to a trial court's failure to instruct upon the essential elements of a crime for which ......
  • State v. Kendall
    • United States
    • Court of Appeals of New Mexico
    • January 4, 1977
    ...because the error is jurisdictional and thus not harmless. See State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973); State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969). Instruction on Use of a Section 40A--29--3.1(A)(1), supra, provides that when a separate finding of fact by the court or......
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