STATE V. JONES, 1973-NMCA-107, 85 N.M.
426, 512 P.2d 1262 (Ct. App. 1973)
STATE OF NEW MEXICO, Plaintiff-Appellee
vs.
RICHARD LEE JONES, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1973-NMCA-107, 85 N.M. 426, 512 P.2d 1262
Appeal from the District Court of
Bernalillo County, Fowlie, Judge
DAVID L. NORVELL, Attorney General,
ANDREA BUZZARD, JAMES H. RUSSELL, JR., Assistant Attorneys General, Santa Fe,
New Mexico, Attorneys for Plaintiff-Appellee.
BRUCE C. REDD, M. RALPH BROWN,
Albuquerque, New Mexico, Attorneys for Defendant-Appellant.
LOPEZ, Judge, wrote the opinion.
Joe W. Wood, C.J., William R. Hendley, J.
{1} Defendant was charged
with the rape of one Judy Brady. The trial ended in a hung jury. The defendant
was then tried for assault with intent to commit a violent felony, to wit:
rape, contrary to § 40A-3-3, N.M.S.A. 1953 (2d Rep. Vol. 6). The alleged victim
was one Mary Cross, Judy Brady's companion on the night in question. Defendant
was convicted.
{2} Defendant raises nine
points for reversal. In this case, we review only two.
{3} The first is that the
trial court failed to instruct the jury as to the essential elements of the
crime charged. The instruction complained of states:
"The material allegations of the indictment necessary to
be proven to your satisfaction and beyond a reasonable doubt before you can
find the defendant guilty are that at the County of Bernalillo in the State of
New Mexico on the 23rd day of June, 1972, the defendant did assault Mary Cross
with intent to rape."
Defendant's contention is that the court nowhere attempted a
definition of the word "assault." Therefore, the jury was allowed to
guess or speculate as to its meaning. This question is raised for the first
time on appeal. Therefore, the error, if any, must be jurisdictional to be
reviewable. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55, decided July 6, 1973.
"The trial court instructed the jury in the language of
the statute. This is sufficient. State v. Lopez, 80 N.M. 599, 458 P.2d 851 (Ct.
App. 1969). If Bell desired any amplification or definition of {*428} words, he should have presented a
request therefor...."
The record in the Bell case indicates that it is
factually distinguishable. Although Bell involved the same statute, the
trial court explicitly defined assault in terms of the statutory definition
found in § 40A-3-1, N.M.S.A. 1953 (2d Repl. Vol. 6).
{5} We believe that the
failure of the trial judge to define assault in the instant case was
jurisdictional error. The failure to instruct on an essential element of the crime
is jurisdictional error. State v. Gunzelman, supra; State v. Walsh,
81 N.M. 65,
463 P.2d 41 (Ct. App. 1969). The definition of assault found in § 40A-3-1,
supra, contains essential elements of the crime of which defendant was
convicted, assault with intent to commit a violent felony. Were we to hold
otherwise, a person charged with simple assault would have the benefit of the
statutory definition of assault, assuming the judge charged in terms of the
statute. But the person charged with assault with intent to commit a violent
felony would not have the benefit of a definition of assault. We see no reason
to introduce such an anomaly into the law.
{6} Of course, when the
element involved is one of common usage or understanding or where the terms of
the statute define the element, further definition is unnecessary. State v.
Gunzelman, supra; State v. Puga,
84 N.M. 756,
508 P.2d 26 (1973). However,
assault is a term of art, susceptible to different meanings. The Attorney
General at oral argument defined assault as, "Putting a person in
apprehension of receiving a battery." The statute defines assault as
follows:
"A. an attempt to commit a battery upon the person of
another;
"B. any unlawful act, threat or menacing conduct
which causes another person to reasonably believe that he is in danger of
receiving an immediate battery; or [Emphasis added]
"C. the use of insulting language toward another
impugning his honor, delicacy or reputation."
What might be termed the lay definition of assault includes a
connotation of attack or striking. See WEBSTERS THIRD NEW INTERNATIONAL
DICTIONARY 130 (15th Ed. 1966). We do not think that the jury should allowed to
speculate as to which meaning applies. Failure in this regard is jurisdictional
error.
{7} Finally, we must consider
defendant's contention of double jeopardy since it would prevent a remand for a
new trial, if accepted. Defendant was first tried for the rape of Judy Brady.
The trial ended in a hung jury. Then he was tried and convicted of the charges
involved here. He contends that jeopardy attached after the first trial and
that he could not be tried again on charges stemming from the same incident.
The law is clear that a mistrial caused by a hung jury cannot form the basis
for a plea of former jeopardy absent a gross abuse of discretion in discharging
the jurors. State v. Brooks,
59 N.M. 130,
279 P.2d 1048 (1955). Further, since
the two trials involved different offenses in connection with different
victims, the facts were sufficiently different that no double jeopardy is
involved. Woods v. State,
84 N.M. 248,
501 P.2d 692 (Ct. App. 1972); State v.
Anaya,
83 N.M. 672,
495 P.2d 1388 (Ct. App. 1972); State v. Mares,
79 N.M. 327,
442 P.2d 817 (Ct. App. 1968).
{8} The judgment and sentence
of the lower court is reversed and the cause is remanded for a new trial
consistent with this opinion.
Joe W. Wood, C.J., William R. Hendley, J.