State v. Curlee , 98 N.M. 576 ( 1982 )

OPINION

WALTERS, Chief Judge.

Defendant was convicted of second degree murder. The two issues raised in the docketing statement, lack of substantial evidence and denial of a directed verdict, are without merit. Although it was conflicting, the jury heard ample evidence to support its verdict. See State v. King, 90 N.M. 377, 563 P.2d 1170 (Ct.App.1977). Since the evidence was sufficient to sustain conviction the motion for directed verdict was properly denied. State v. Robinson, 94 N.M. 693, 616 P.2d 406 (1980). Moreover, defendant offered evidence in his own defense and thus waived any basis for error in the court’s denial of the motion. State v. Quintana, 86 N.M. 666, 526 P.2d 808 (Ct.App.1974). When defendant introduces evidence after denial of directed verdict, thé entire record is reviewed for sufficiency — not just the evidence at the time the motion was made. State v. Aranda, 94 N.M. 784, 617 P.2d 173 (Ct.App.1980).

The above discussion would resolve this appeal were it not for a claim raised in the briefs which previously has been declared to be a jurisdictional issue that may be raised at any time. State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973). Defendant asserts that the trial court failed to give a correct instruction on the element of intent, and he is therefore entitled to a new trial.

It seems apparent that, through typographical error, the emphasized portion of the following U.J.I.Crim. 1.50, N.M.S.A. (1981 Cum.Supp.), on general criminal intent was omitted from the instruction:

In addition to the other elements of (identify crime or crimes') the state must prove to your satisfaction beyond a reasonable doubt that the defendant acted intentionally when he committed the crime. A person acts intentionally when he purposely does an act which the law declares to be a crime, even though he may not know that his act is unlawful. Whether the defendant acted intentionally may be inferred from all of the surrounding circumstances, such as the manner in which he acts, the means used, [and] his conduct [and any statement made by him.]

The Use Note accompanying the Instruction directs that “[t]his instruction must be used with every crime except for: (1) the relatively few crimes not requiring criminal intent, and (2) first degree murder. ” (Our emphasis.) Id.

The court instructed the jury on second degree murder and voluntary manslaughter, according to U.J.I.Crim. 2.10 and 2.20, N.M.S.A. (1981 Cum.Supp.). Instruction 2.20, according to its Use Note, must follow the second degree murder instruction. The Use Note for Instruction 2.10 (second degree murder) directs that the general intent instruction, U.J.I.Crim. 1.50, must be given when U.J.I.Crim. 2.20 is given. In summary: Instruction 2.10 (second degree murder) must be followed by Instruction 2.20 (voluntary manslaughter; lesser included offense); Instruction 2.20 must be accompanied by Instruction 1.50 (general intent). The trial court followed the directives of the uniform criminal instructions but, in giving Instruction 1.50, it failed to do so correctly and accurately.

The effect of the missing language from U.J.I.Crim. 1.50, supra, is compounded, we think, by the fact that the jury was also instructed regarding justifiable homicide and self-defense (U.J.I.Crim. 41.41, N.M. S.A. (1981 Cum.Supp.)). In that context, the omission from Instruction 1.50 of the words “when he purposely does an act which the law declares to be a crime” would tend to reduce the excusability of an otherwise criminal act which the self-defense theory was intended to effect. See discussion of “purposely does an act” and “wilfullness” in State v. Sheets, 94 N.M. 356 at 366, 610 P.2d 760 at 770 (Ct.App.1980). More importantly, however, the omitted words are the meat of the instruction on general criminal intent. The jury was told it could consider the “surrounding circumstances” to determine whether defendant acted intentionally, but it was left in the dark regarding the legal meaning of “acts intentionally.” The omission was not harmless. See State v. Kendall, 90 N.M. 236, 561 P.2d 935 (Ct.App.1977).

By Supreme Court order, the General Use Notes in both the 1981 Cum.Supp. of, and Judicial Pamphlet 19, Special Supplement to Uniform Jury Instructions — Criminal, provides, in part:

When a uniform instruction is provided for the elements of a crime * * * the uniform instruction must be used without substantive modification or substitution. In no event may an elements instruction be altered * * *. (Our emphasis.)

The first line of U.J.I.Crim. 1.50, supra, tells us that general criminal intent is an additional element of all but a few crimes. The Use Note to Instruction 2.10 leaves no doubt that second degree murder and voluntary manslaughter are not among the excepted crimes, because it directs that the general intent instruction be given in those cases. Even though unintentional, the instruction on the element of general intent was altered. Inferior courts are bound to follow the directives of the Supreme Court regarding the uniform instructions. State v. Smith, 92 N.M. 533, 591 P.2d 664 (1979). Orders of the Supreme Court are final. State v. Sedillo, 86 N.M. 382, 524 P.2d 998 (Ct.App.1974). Failure to give the unaltered U.J.I.Crim. 1.50 was reversible error.

Defendant’s conviction is reversed and the case is remanded for a new trial.

IT IS SO ORDERED. .

HENDLEY and DONNELLY, JJ., concur.