OPINION
HENDLEY, Judge.Convicted of burglary contrary to § 40A-16-3, N.M.S.A.1953 (2nd Repl.Vol. 1972), defendant appeals asserting four points for reversal. Defendant’s contention on the failure to instruct on an essential element of the crime is dispositive of the appeal.
We reverse.
The court instructed the jury as follows:
“To constitute criminal intent it is not necessary that there should exist an intent to violate the law or to do a wrong. Criminal intent exists whenever a person intentionally does that which the law declares to be a crime, even though he may not know that he is committing a crime or that his act is wrong.”
Defendant made no objection nor did he request a proper instruction. The question is first raised on appeal. Defendant contends that the instruction is incorrect in that it omits an essential element of the crime, criminal intent. He also contends such an omission is jurisdictional and may be raised for the first time on appeal. We agree.
The failure to give an instruction containing an essential element of a crime is jurisdictional and may be raised for the first time on appeal. State v. Bachicha, 84 N.M. 395, 503 P.2d 1173 (Ct.App.) decided October 13, 1972; State v. Walsh, 81 N.M. 65, 463 P.2d 41 (Ct.App.1969).
Section 40A-16-3, supra, states:
“Burglary consists of the unauthorized entry of any . . . , dwelling . . . , with the intent to commit any felony or theft therein.”
The gravamen of the offense of burglary is the intent with which the structure is entered. State v. Ortega, 79 N.M. 707, 448 P.2d 813 (Ct.App.1968). A specific intent to commit “ . . . any felony or theft therein” must be shown. The instruction given does not meet the foregoing requirement. It states that it is not necessary “. . . that there should exist an intent to violate the law or to do a wrong. .” This is an incorrect statement of the law. The specific intent to commit “. . . any felony or theft therein” is an essential element of the crime of burglary. The quoted instruction does not cover that specific intent.
Reversed.
It is so ordered.
COWAN, J., concurs. SUTIN, J., dissents.