The defendants were convicted of the crime of attempt to commit murder and from the judgment and sentence entered upon the verdict, appeal.
The evidence of the state shows that the defendants registered at a hotel in the *Page 148 City of Santa Fe about 8 p.m., and were assigned Room 304, to which they were conducted by Pedro Gonzales, the prosecuting witness, an employee of the hotel.
Later that night Gonzales saw a woman in Room 304 with the defendant, Grayson, but denied that he procured her for him. The following afternoon Gonzales was enticed by defendants into Room 304.
After Gonzales and defendants entered the room the door was locked by one of the defendants. They offered Gonzales a drink of liquor, and asked him the name of the woman who had been in the room with Grayson, stating that she had stolen some money. Gonzales declared and maintained throughout the "third degree" ordeal that he did not know the name of the woman — only knew her by sight. Defendants had two bottles of liquor, part of which they consumed in the presence of Gonzales, threatened to strike him with a bottle, and repeatedly threatened to kill him. They struck him with their fists, and Gonzales testified as to the further assaults, as follows:
"A. And I was very bloody after I had been beaten, and they told me to wash.
"Q. Do you remember who told you that, Pete? A. I don't know, but they told me. I couldn't see because my eye was swollen. They told me to wash, I washed, and I was cleaning my face with a towel when I finished cleaning they again attacked me, one side, I don't recall which side, and then they got me dizzy and they put me across the wall, and then they told me to call the girl through the telephone, that the telephone was there. I didn't say anything, but I thought of calling help for me. I went to the telephone with my hands all bloody, and I put them there, and I called downstairs to the desk, and no one answered. I was excited, but I said these words: `Come up to the 304 right away,' and then they grabbed me here from behind, I don't know who, and they put me back where I was, and they again attacked me. Before that they said this: `This son of a bitch called downstairs for help.' and then they attacked me again. Two or three times they put me on top of the beds, there was two double beds, they would put me there and they would put me here, they would cover me with sheets or quilts, and hit me on the head. I don't know when they did cut me here, I didn't feel it, I didn't feel it until I went to the hospital. * * * `After that I don't remember because I was very dizzy and I could not see. I screamed very loud when they had me against the bed and covered, they pulled me by the hair and others would strike me on the back, I don't know who they were'".
Gonzales was confined to the hospital for ten days as a result of his injuries. The doctors testified that he had suffered the loss of two teeth, two complete fractures of the lower jaw, fracture of two *Page 149 ribs, the loss of about one-third of the right ear and numerous cuts and bruises.
When the State rested the defendants also rested and moved for an instructed verdict. The motion follows:
"Mr. Catron: At this time, if the Court please, the defendants move that the jury be instructed to bring in a verdict of not guilty for the following reasons:
"The defendants are charged here under Section 41-611 of the New Mexico Statutes, 1941 Annotated, with the crime of attempting to commit the crime of murder on the prosecuting witness, Pedro Gonzales. The State has failed to show that these defendants had the specific intent to murder Pedro Gonzales; the State has failed to show by any evidence that the means employed, or the acts done by the defendants, insofar as Pedro Gonzales is concerned, were apparently reasonably adapted to the accomplishment of the end which is charged that is, the murder of Pedro Gonzales, or that those acts were done under circumstances making the murder of Pedro Gonzales apparently possible. This being an alleged attempt to commit the crime of murder, it was incumbent upon the State to establish by the evidence, beyond a reasonable doubt, that the acts done by the defendant were done with malice aforethought, and either with deliberation and premeditation, and the intent to commit murder or with premeditation and with the intent to commit murder, those being the necessary ingredients of the crimes of murder in the first degree and murder in the second degree, and it is only with murder and attempt to commit murder that we are here concerned.
"For the further reason that even should the Court believe that there is any evidence here from which the jury might believe, beyond a reasonable doubt, that there was an intent on the part of the defendants to commit murder, and in that event, the defendants would have to be discharged because an assault having been shown it would then be assault with intent to murder, and under this Statute, they cannot be convicted of the crime of assault with intent to murder because of the language itself which reads:
"`If any person shall attempt to commit the crime of murder by poisoning, drowning or strangling another person, or by any means not constituting an assault with intent to murder, such offender shall be punished by imprisonment, etc.' The District Attorney is proceeding on the theory that that language is to be construed as eliminating intent. On the contrary, all authorities hold that a specific intent to murder must be established, in order to convict of the crime of attempt to murder. As a result, we have this situation, either there is no intent shown, and we therefore lack an essential element of the crime which is *Page 150 charged here, and the defendants must be discharged, acquitted, or if we have an intent shown, they must be discharged because they are entitled (indicted) or informed against under the wrong law."
The motion was overruled. Defendants excepted, and assigned the action of the Court as error. Their contention was presented by requested instruction No. 6, which the Court refused, and again by motion to set aside the verdict.
The Court embodied in his instructions to the jury, without objection from the State, defendants' requested Instruction No. 1, as follows: "The Court instructs the jury that the defendants are charged under Section 41-611, New Mexico Statutes, 1941 Annotated, with the crime of attempting to commit the crime of murder upon one Pedro Gonzales. In order to justify a verdict of guilty of the crime so charged, the facts and circumstances shown by the evidence in this case must convince you beyond a reasonable doubt that the defendants attempted to murder said Pedro Gonzales by poisoning, drowning, or strangling him, or by any means, not constituting an assault with intent to murder."
Mr. Justice Bickley briefly discussed 1941 Comp. Secs. 41-611 and 41-606 in State v. Martin, 32 N.M. 48, 250 P. 842. Secs. 15 and 16, Chapter 265, Anno. Laws of Mass., enacted more than 140 years ago, are similar; and statutes similar to or identical with 1941 Comp. Secs. 41-606 and 41-611 and other sections of Chapter 3 of the Act of N.M. Defining Crimes and Punishments, Laws 1853-1854, appear in the Revised Statutes of Wis. of the year 1849; and the Supreme Court of that state in Jambor v. State,75 Wis. 664, 44 N.W. 963, 966, commented on the section under consideration here, from which we quote: "It is very true the defendant is prosecuted for an attempt to murder M.M. Secor by means not constituting an assault with intent to murder. Actual assault or violence is not an ingredient of the crime. If physical force were used, it might amount to an assault with intent to murder, and be a different crime. * * * It is said that this tends to prove another crime, viz., an assault with intent to murder, which is not the offense charged in the information. But we cannot conceive of what offense comes under section 4374, unless the one charged does; for the statute has expressly provided for an assault with intent to kill, and then provides for the offense of attempting to murder by poisoning, drowning, or strangling, or by other means not constituting an assault with intent to murder. So there must be a distinction between the two offenses. An assault implies some unlawful physical force, partly or fully put in motion. It includes violence. But we are considering the attempt to commit murder by means not constituting an assault." *Page 151
"Every battery includes an assault, because the greater includes the lesser." 6 C.J.S. Assault and Battery, § 1, p. 797.
The word "attempt" is more comprehensive than the word "intent" implying both the purpose and the actual effort to carry that purpose into execution. Smith v. State, 126 Ga. 544, 55 S.E. 475. The specific intent to murder is the gist of the crime. It raises it from misdemeanor to felony and the error based upon the denial by the trial court of defendant's request that the jury be instructed on the question of intent is well taken. State v. Shedoudy, 45 N.M. 516, 118 P.2d 280; State v. Louther, 22 Wash. 2d 497, 156 P.2d 672; Norwood v. State, 182 Miss. 898, 183 So. 523; Daniels v. State, 196 Miss. 328, 17 So. 2d 793; Carter et al. v. State, 181 Tenn. 259, 181 S.W.2d 137; Davis v. State,206 Ark. 726, 177 S.W.2d 190; 22 C.J.S., Criminal Law, §§ 32, 75; 40 C.J.S., Homicide, Sec. 79, p. 942.
While the information did not charge a crime under Sec. 41-611, because it shows that a crime was committed by an assault, and it was not an attempt to commit the crime of murder by poisoning, drowning, or strangling, which may be accomplished by assault; yet the defendants are guilty of a cowardly and brutal assault upon Pedro Gonzales, for which they richly deserve punishment, and we assume that the District Attorney will desire to further prosecute the case.
The judgment of the trial court will be reversed, the verdict of the jury set aside, and the case remanded with instruction to the District Court to set aside his judgment and to grant a new trial, and proceed not inconsistent herewith. It is so ordered.
BRICE and LUJAN, JJ., concur.