State v. Ramirez , 84 N.M. 166 ( 1972 )

OPINION

WOOD, Chief Judge.

The appeal is concerned with instructions on intent under two criminal charges.

Defendant was charged with aggravated battery. Section 40A-3-5(C), N.M.S.A. 1953 (Repl.Vol. 6, Supp.1971). His requested instruction went to his asserted lack of intent to commit aggravated battery because of his intoxication. He claims the trial court erred in refusing the requested instruction.

The refused instruction on intent under the aggravated battery charge need not be reviewed. Defendant was not convicted of aggravated battery; he was convicted of the lesser included offense of battery. The instructions pertaining to the intent to commit aggravated battery are simply not pertinent to the battery conviction.

Defendant was also charged, and convicted, of rape. Section 40A-9-2, N. M.S.A.1953 (Repl.Vol. 6). His requested instruction went to his asserted lack of the specified intent to commit rape. He claims this request was improperly refused and the instruction given by the court was erroneous. The instruction given informed the jury that “rape requires no specific intent” and that voluntary drunkenness is neither excuse nor justification for the crime of rape. The requested instruction was properly refused because the specific intent to rape is not an element of the crime defined in § 40A-9-2, supra. The instruction given by the court was correct under State v. Scarborough, 55 N.M. 201, 230 P.2d 235 (1951).

Affirmed.

It is so ordered.

COWAN, J., concurs. SUTIN, J., specially concurring.