(specially concurring).
I concur with the Court’s revisitation of Rutledge in view of its misplaced reliance upon Feola. I do not, however, see the necessity of deciding this case on constitutional grounds. It is a general rule that ignorance or mistake of fact is a defense when it negates the existence of a mental state essential to the crime charged. This rule of law is recognized in Part D (Mistake) of the New Mexico Uniform Jury Instructions — Criminal. SCRA 1986, 14-5120 and 5121. The rules for construing the criminal intent required by a statute make applicable the defense of ignorance or mistake of fact under the circumstances of this case, as distinguished from others, e.g., State v. Alva, 18 N.M. 143, 134 P. 209 (1913) (sexual intercourse with a female child under age). Aside from constitutional grounds, it was essential that the state prove that the defendant did not act under an honest and reasonable belief that the victim of defendant’s assault was an ordinary citizen, not acting under color of law.
It has long been the law of this state that the legislature may forbid the doing of an act and make its commission criminal without regard to the intent of the doer. Id.; State v. Lucero, 98 N.M. 204, 647 P.2d 406 (1982); State v. Shedoudy, 45 N.M. 516, 118 P.2d 280 (1941); and see State v. Gunter, 87 N.M. 71, 529 P.2d 297 (Ct.App.), cert. denied, 87 N.M. 48, 529 P.2d 274 (1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1686, 44 L.Ed.2d 106 (1975). It is also the rule in New Mexico, however, that where an act is prohibited and made punishable by statute, the statute must be construed in the light of the common law, and the existence of a criminal intent is essential absent the appearance of legislative intent to the contrary. Alva, 18 N.M. at 151, 134 P. at 211. Such legislative intent must clearly appear from the statute. Shedoudy, 45 N.M. at 524, 118 P.2d at 286. In other words, whether the criminal intent of an accused is to be regarded as essential for conviction is a matter of statutory construction, State v. Craig, 70 N.M. 176, 372 P.2d 128 (1962), in light of the common law rule that existence of a criminal intent is essential. Shedoudy, 45 N.M. at 524, 118 P.2d at 285; see also State v. Barber, 91 N.M. 764, 581 P.2d 27 (Ct.App.1978); State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975); State v. Mascarenas, 86 N.M. 692, 526 P.2d 1285 (Ct.App.1974); State v. Fuentes, 85 N.M. 274, 511 P.2d 760 (Ct.App.), cert. denied, 85 N.M. 265, 511 P.2d 751 (1973); State v. Pedro, 83 N.M. 212, 490 P.2d 470 (Ct.App.1971); and State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969).
Because a defendant who does not have the mental state required by law for the commission of a particular offense cannot be convicted, a determination must be made of what mental element is required by the statute under which Reese was convicted. The statutes in question provide for conviction of aggravated assault, assault with intent to commit violent felony, or battery upon a peace officer while he is in the lawful discharge of his duties. NMSA 1978, §§ 30-22-22 through 24.
In these criminal statutes, there is no language negating a mental state. The legislature did not say, in effect, that no mistake or ignorance of fact or law will suffice to exonerate the accused. Without specific language, the absence of an element of criminal intent must be construed from consideration of the conduct prohibited and the penalty imposed. Guilt of common law crimes has traditionally required knowledge or want of due care; while crimes-without-fault are generally misdemeanors carrying a relatively light penalty. Most often it is the “public welfare offense” that is the crime of no mens rea. E.g., State v. Barber, 91 N.M. 764, 581 P.2d 27 (Ct.App.1978). There are, however, notable exceptions. For example, the Model Penal Code position on sex offenses is that when criminality depends on a child’s being below the age of ten, it is then no defense that the actor believed the child to be older. W. LaFave & A. Scott, Criminal Law, Ch. 5 (Justification and Excuse), § 5.1 (Ignorance or Mistake), (2d Ed.1986). New Mexico has limited its interpretation of strict liability felonies to child victim crimes. E.g., State v. Lucero, 98 N.M. 204, 647 P.2d 406 (1982); State v. Alva, 18 N.M. 143, 134 P. 209 (1913); State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.), cert. denied, 87 N.M. 239, 531 P.2d 1212 (1975); State v. Gunter, 87 N.M. 71, 529 P.2d 297 (Ct.App.), cert. denied, 87 N.M. 48, 529 P.2d 274 (1974), cert. denied, 421 U.S. 951, 95 S.Ct. 1686, 44 L.Ed.2d 106 (1975); and State v. Fuentes, 85 N.M. 274, 511 P.2d 760 (Ct.App.), cert. denied, 85 N.M. 265, 511 P.2d 751 (1973).
LaFave and Scott make the point that imposition of “strict liability as to certain elements of particular crimes” should rest as matters of policy on an offense-by-offense basis. The authors reject an uncritical acceptance of any general policy that the existence of a defense of ignorance or mistake rests ultimately on the defendant’s being able to say that he observed the community ethics and was, in fact, guilty of no lesser legal wrong or moral wrong. The argument that any person who confronts another with force or moral turpitude takes his victim as he finds him is to say that a wrongdoer can be convicted of a crime of which he is ignorant or factually mistaken. That argument loses sight of considerations of deference, correction and just condemnation of the actor’s conduct. LaFave and Scott have enumerated the following factors to be considered in deciding whether the legislature meant to impose liability without fault:
(1) The legislative history of the statute or its title or context may throw some light on the matter. (2) The legislature may have in some other statute provided guidance as to how a court is to determine whether strict liability was intended. (3) The severity of the punishment provided for the crime is of importance. Other things being equal, the greater the possible punishment, the more likely some fault is required, and, conversely, the lighter the possible punishment, the more likely the legislature meant to impose liability without fault. (4) The seriousness of harm to the public which may be expected to follow from the forbidden conduct is another factor. Other things being equal, the more serious the consequences to the public, the more likely the legislature meant to impose liability without regard to fault, and vice versa. (5) The defendant’s opportunity to ascertain the true facts is yet another factor which may be important in determining whether the legislature really meant to impose liability on one who was without fault because he lacked knowledge of these facts. The harder to find out the truth, the more likely the legislature meant to require fault in not knowing; the easier to ascertain the truth, the more likely failure to know is no excuse. (6) The difficulty prosecuting officials would have in proving a mental state for this type of crime. The greater the difficulty, the more likely it is that the legislature intended to relieve the prosecution of that burden so that the law could be effectively enforced. (7) The number of prosecutions to be expected is another factor of some importance. The fewer the expected prosecutions, the more likely the legislature meant to require the prosecuting officials to go into the issue of fault; the greater the number of prosecutions, the more likely the legislature meant to impose liability without regard to fault. All the above factors have a bearing on the question of the interpretation of the empty statute, but no single factor can be said to be controlling. Thus some statutes have been held to impose liability without fault although the possible punishment was quite severe, generally because one or more of the other factors pointed toward strict liability.
W. La Fave & A. Scott, Criminal Law at 244-45.
Although one or more of the above factors arguably may support an interpretation of the statute in question as requiring no mental element of knowledge, taken as a whole the factors do not lead to a construction that the legislature clearly intended to punish without knowledge. Therefore, without relying upon constitutional grounds, I would concur that the judgments of the court of appeals and the trial court be reversed, and that this case be remanded to the trial court for a new trial.
SCARBOROUGH, Chief Justice, dissenting.I dissent.
Defendant was convicted of aggravated assault and battery upon a peace officer. Defendant seeks a new trial, arguing that knowledge that a victim is a peace officer is an element of the offenses of which he was convicted. Specifically, defendant argues that he was entitled to an instruction that if he did not know his victim was a peace officer, then he is not guilty. Defendant’s requested instruction to this effect was denied. The majority concludes that defendant was denied due process of law because the jury was not charged as defendant requested. I disagree with the majority, first, because there is no specific intent requirement in the statutes under which defendant was convicted, and second, because the issue here is not one of constitutional dimension.
The statutes under which defendant was convicted do not require that a defendant know the identity of his victim. See NMSA 1978, §§ 30-22-22 and 30-22-24 (Repl. Pamp.1984). The statutes merely require an intent to commit aggravated assault or battery. The purpose of the statutes is to impose a greater penalty for aggravated assault or battery upon a peace officer than the penalty for aggravated assault or battery upon an ordinary citizen. Cf NMSA 1978, §§ 30-3-2 and 30-3-4 (Repl. Pamp.1984). The majority ignores the clear and unambiguous language of the statutes by holding that a defendant must have specific intent to commit aggravated assault or battery upon a peace officer.
The majority has granted the defendant a new trial based on recent court interpretations of United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). Feola does not support the position taken by the majority. Feola specifically held that knowledge of the victim’s identity is not an element of a similar federal offense. In any event, regardless of the treatment some courts have given Feola, there is no doubt that we are free to impose enhanced penalties for offenses against peace officers without first proving that the defendant knew the identity of his victim.
We are not dealing with an issue of constitutional dimension, but rather with a matter of state policy. It is the prerogative of the legislature to establish policy in this area. The majority concedes that the statutes do not require knowledge of the victim’s identity. We should not rewrite the statutes under which defendant was convicted to include an element the legislature omitted.