(dissenting).
I dissent.
To sentence defendant 10 to 50 years for aggravated burglary under the facts of this case is a miscarriage of justice. It is cruel and unusual punishment inflicted on a man who is innocent of the crimes with which he was charged.
Aggravated burglary carries punishment of a second degree felony which means imprisonment in the state penitentiary for a term of not less than 10 nor more than 50 years, or to the payment of a fine of $10,000, or to both such imprisonment and fine in the discretion of the court.
Second degree murder, kidnapping, criminal abortion which results in death, carry the same punishment. Voluntary and involuntary manslaughter, dangerous use of explosives, carry a much less punishment.
The defendant is entitled to a new trial or complete discharge.
We should keep in mind the inherent power of courts of review to protect a man’s fundamental fights in every case. State v. Romero, 86 N.M. 244, 522 P.2d 579 (1974).
A. The majority opinion fails to answer questions of law raised by the defense.
The majority opinion refused to review three issues raised by defendant, none of which, it states, can be raised for the first time on appeal. This constitutes a reversal of previous decisions and a convenient method of wasting a man’s life. Only one issue will be presented which should grant the defendant a new trial.
(1) The jury was not instructed on all essential elements of aggravated burglary.
The trial court instructed the jury in the language of the statute on aggravated burglary and contained the phrase “with intent to commit a felony,” but the word “felony” was not explained to the jury.
Section 40A-1-6, N.M.S.A.1953 (2d Repl.Vol. 6) defines classified crimes as felonies, misdemeanors and petty misdemeanors.
A jury cannot know which crime in the Criminal Code is designated by law as a felony, a misdemeanor or a petty misdemeanor; nor does it know the punishment authorized for conviction of the crime. A jury may convict a man of “intent to commit a felony” when the intent proved was to commit a misdemeanor or a petty misdemeanor. The jury is not allowed to guess or speculate on the meaning of the word “felony.” The jury needs guidance and explanation and assistance.
Rule 41(a) of the Rules of Criminal Procedure [§ 41-23-41 (a), N.M.S.A.1953 (2d Repl.Vol. 6, 1973 Supp.)] states:
The court must instruct the jury upon all questions of law necessary for guidance in returning a verdict. [Emphasis added].
A failure to instruct on an essential element of a crime is jurisdictional and can be raised for the first time on an appeal. State v. Jones, 85 N.M. 426, 512 P.2d 1262 (Ct.App.1973).
“Intent to commit a felony” is an essential element of aggravated burglary. United States v. Thomas, 144 U.S.App.D.C. 44, 444 F.2d 919 (1971); United States v. Seegers, 144 U.S.App.D.C. 162, 445 F.2d 232 (1971); Champlain v. State, 53 Wis.2d 751, 193 N.W.2d 868 (1972); Henson v. People, 166 Colo. 428, 444 P.2d 275 (1968); Adkins v. State, 389 P.2d 915 (Alaska, 1964). See, State v. Vigil, 85 N.M. 328, 334, 335, 512 P.2d 88 (Ct.App.1973), concurring opinion.
We have held that the failure to define “assault” is prejudicial error where a defendant is tried for assault with intent to commit a violent felony, to-wit: rape, because the jury was allowed to guess or speculate as to the meaning of the word “assault.” State v. Jones, supra. This same rule applies to aggravated burglary. It is prejudicial error to fail to instruct sua sponte on a definition of “felony” and to fail to advise the jury which acts would amount to a felony that the defendant, upon entry, may have intended to commit. People v. Failla, 51 Cal.Rptr. 103, 414 P.2d 39 (1966); State v. Fierro, 15 Ariz.App. 369, 488 P.2d 1006 (1971).
Failla, supra, is interpreted to mean that prejudice must be demonstrated before the failure to define a felony in the context of a burglary instruction will constitute reversible error. People v. McManis, 26 Cal.App.3d 608, 102 Cal.Rptr. 889, 893 (1972). See also, People v. Hawkins, 268 Cal.App.2d 99, 73 Cal.Rptr. 748, 752 (1968); City of Albuquerque v. Ackerman, 82 N.M. 360, 364, 482 P.2d 63 (1971). Prejudice is obvious.
Under Rule 41(a), the necessity of guidance to the jury is a mandatory duty of the trial court to avoid guess and speculation in returning a verdict.
In the instant case, the jury does not know what a felony or a misdemeanor is. Even if we assume it does know, it cannot know whether defendant’s conduct constitutes a felony or a misdemeanor without guidance. The jury had to guess or speculate which felony, if any, the defendant intended to commit upon entering the home. The jury had to guess or speculate whether defendant’s conduct constituted a felony or misdemeanor.
The failure to instruct the jury on the meaning of the phrase “with intent to commit a felony” is reversible error which entitled defendant to a new trial.
B. Defendant was not guilty of aggravated burglary.
(1) There was no evidence of intent, upon entry, to commit an aggravated assault.
The majority opinion holds that defendant was not guilty of aggravated assault on Mr. Cardona. I concur.
Did defendant intend, upon entry, to commit an aggravated assault? The majority opinion limits its scope to Mrs. Car-dona.
By a wave of the wand, the majority opinion holds that “The evidence is sufficient to establish that defendant’s intent upon entry was to commit an aggravated assault.” Upon what evidence? (1) Defendant was armed with a deadly weapon and (2) “His kissing and fondling of Mrs. Cardona was an unlawful act. She was scared.”
Upon entry, Mrs. Cardona was asleep. He could not intend to assault her with a deadly weapon while she was asleep. He would have to awaken her and then use his knife and unlawfully assault or strike at Mrs. Cardona by committing an unlawful act, threat or menacing conduct which caused her to reasonably believe she was in danger of receiving an immediate battery. Sections 40A-3-2(A) and 40A-3-l(B), N. M.S.A.1953 (2d Repl.Vol. 6). She never saw a knife. If kissing and fondling without use of a knife while a lady is asleep constitutes aggravated assault, the Wonderful Wizard of Oz has become a reality.
(2) There was no evidence of intent, upon entry, to commit an aggravated battery felony.
In order to constitute a felony, aggravated battery includes unlawful touching with ■ intent to injure a person by use of a deadly weapon. Section 40A-3-5, N.M.S.A. 1953 (2d Repl.Vol. 6). Was this defendant’s intent when he entered the home? Of course not. Kissing and fondling a woman in this case was an unlawful act.
It was reprehensible conduct which we cannot condone. But it was not done to injure the woman with use of his knife. It was not a battery because it was not done in a rude, insolent or angry manner. Section 40A-3-4, N.M.S.A. 1953 (2d Repl.Vol. 6).
The fact is, that after the wife awakened, the husband and wife dominated the scene, called the police, scared the defendant, and caused the defendant to run away. Defendant was a fool, but he did not deserve 10 to 50 years in the penitentiary.
The defendant had no intent, upon entry to commit any felony. He might be guilty of criminal trespass, a petty misdemeanor. Section 40A-14-1, N.M.S.A.1953 (2d Repl. Vol. 6). Defendant was not guilty of aggravated burglary.