(specially concurring).
I concur with the results of the majority opinion; however, since I do so on a different approach, I specially concur.
Defendant contends that the court committed jurisdictional error by its alleged failure to instruct upon general criminal intent, which we have held is an essential element of the crimes charged. State v. Tucker (Ct.App.), No. 1347, decided June 5, 1974, 525 P.2d 913; State v. Montaya, 86 N.M. 155, 520 P.2d 1100 (Ct.App.1974). Defendant makes no contention that the court failed to instruct on the element of specific intent. He concedes that the court instructed substantially in terms of the statute.
In State v. Fuentes, 85 N.M. 274, 511 P. 2d 760 (Ct.App.1973), we held that an instruction substantially in terms of § 54— 11-22(A), N.M.S.A.1953 (Repl.Vol. 8, pt. 2, Supp.1973), was a sufficient instruction on the element of general intent. There is no reason to distinguish § 54-11-22(A), supra, from § 54 — 11-20, supra. Defendant recognizes that Fuentes squarely governs this case.
Defendant requests that we overrule Fuentes. He argues that it conflicts with our holding in State v. Bachicha, 84 N.M. 397, 503 P.2d 1175 (Ct.App.1972). There we held that an instruction in terms of the statute was not a sufficient instruction on the element of general intent.
In State v. Gunzelman, 85 N.M. 295, 512 P.2d 55 (1973), and State v. Puga, 85 N.M. 204, 510 P.2d 1075 (Ct.App.1973), instructions substantially in terms of the statutes were held to satisfy the requirement of instructing upon general intent. These cases can be reconciled with Bachicha. In Bachicha the instruction that, [a]ny person who shall take any vehicle intentionally and without consent of the owner thereof shall be guilty of a felony ” did not exclude the possibility of an innocent converter. Cf. State v. Austin, 80 N.M. 748, 461 P.2d 230 (Ct.App.1969). In Gunzelman and Puga the courts informed the juries that they must find that the defendants had a specific intent to commit a “theft.” Since one cannot commit a theft without a mental state of “conscious wrongdoing,” it was held in both cases that no further instruction on general intent was necessary. Similarly, one who had the specific intent mentioned in this statute, the intent to distribute heroin, could not, have been engaged in anything other than conscious wrongdoing, in light of the widespread knowledge that “pushing” narcotics is a crime.
Defendant argues that he could have had no knowledge of the narcotic character of the substance and was therefore like the innocent converter in Bachicha. However, even defendant admits that knowledge is a concept separate from the element of intent. See State v. Vickery, 85 N.M. 389, 512 P.2d 962 (Ct.App.1973).
Defendant recognizes that knowledge is an element of possession. See. State v. Giddings, 67 N.M. 87, 352 P.2d 1003 (1960). He then argues on the basis of State v. Jones, 85 N.M. 426, 512 P.2d 1262 (Ct.App.1973), that the layman would not realize this fact, that possession is a “term of art” when it is read as including knowledge and that the failure to define possession in the instruction was jurisdictional error. The Jones case is distinguishable because there the trial court failed to instruct substantially in terms of the statute. The elements of “assault,” which was the term involved in Jones, were statutorily defined but not presented to the jury. Here the elements of possession are not defined in the statute. Therefore, the case is controlled by State v. Bell, 84 N.M. 133, 500 P.2d 418 (Ct.App.1972). There we held that where the trial court instructs in terms of the statute, the defendant must request “ . . . any amplification or definition of words [therein] There was no jurisdictional error.