¶1(dissenting).
¶2I respectfully dissent.
¶3There is no question that § 20-4 — 303, supra, has been violated. The majority opinion fails to remedy this error on the grounds that defendant never clearly and graphically demonstrated to the trial court the total import of his objection. It is rather as if substituting the court’s mandatory presumption for the jury’s burden of proof beyond a reasonabe doubt were mere harmless error. “The violation of a defendant’s constitutional right is never harmless.” State v. Barela, 86 N.M. 104, 519 P.2d 1185 (Ct.App.1974).
¶4The majority has completely distorted the issue of this case. The true question for decision is not, as is held above, whether a jury could infer knowledge or belief under § 40A-16-11, supra. Rather, the whole point of defendant’s complaint on appeal is that his statutory and constitutional rights were violated by the error of the trial court.
¶5The majority, further, hides the admitted error of the court below in a cloud of dicta concerning “standardized inferences”: when the court lets the jury infer when it, arguably, did not know it had the right to infer. The majority might like to have § 40A-16-11 (B), supra, read “may be presumed”, but it is clear that both the actual statute and the instruction given read “is presumed”, a mandatory directive in anybody’s language.
¶6But after all the verbiage about “inferences” and “presumptions” (a distinction not applicable to this case; contrast Chief Judge Bazelon’s opinion in Bray v. United States, cited by the majority) even the rest of this panel must ultimately face the real issue: what to do with the clearly erroneous instruction ? Their answer, obviously, is to do nothing.
¶7The error in this case involves an evi-dentiary ruling, a violation of Rule 303, supra. The defendant, not being in a position to offer another instruction (he wished none), and not being in a position to offer other evidence on the matter (his case was closed), did what he could: he objected. As grounds for his objection, he stated that the trial court erred as a matter of law. Further, the matter involved a substantial right of the defendant: his right to a jury verdict on an essential element of the alleged crime. “ … a peremptory ruling against the accused in a criminal case, even as to a single element of the crime, is abhorrent to the criminal law … McCormick on Evidence § 342 (2d Ed. 1972).
¶8Nevertheless, granting that reasonable minds might differ as to whether defendant had met the burden of subsection (a) of Rule 103, § 20-4-103, N.M.S.A.1953 (Repl.Vol. 4, Supp.1973), it simply cannot be doubted that subsection (d) of the rule is applicable in this case:
“(d) Plain Error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the judge.”
¶9The definitional problem, when you use “plain error”, is handled many ways :
“Thus it is said that ‘plain error’ means ‘error both obvious and substantial,’ or ‘serious and manifest errors,’ or ‘seriously prejudicial error,’ or ‘grave errors which seriously affect substantial rights of the accused.’ ” Wright & Miller, Federal Practice and Procedure, § 856 (1969).
“This court is reluctant to consider objections raised for the first time on appeal. … We are considerably more reluctant to notice on our own motion, errors not raised below when the parties have not even urged us to do so. Nonetheless, we are empowered to notice, in our discretion, ‘[p]lain errors or defects affecting substantial rights’ which were brought neither to our attention nor to the attention of the trial court. … We may do so when confronted with ‘unusual circumstances involving seriously prejudicial deficiencies in the trial process,’ … or when ‘it appears to be necessary in order to prevent a miscarriage of justice or to preserve the integrity and reputation of the judicial process.’ ” United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir. 1971).
¶10The Plain Error Rule must be read in conjunction with the timely objection rule (our 103(a) ) which provides that no party may assign as error an instruction to which he has not objected before the jury retires. Despite the language of 103(a), a court may notice an erroneous instruction as plain error, particularly when some objection is made, as in the instant case. Apodaca v. United States., 188 F.2d 932, 937 (10th Cir. 1951). See cases in Wright & Miller, supra, at f. n. 97.
¶11The “fundamental right” or “substantial right” denied the defendant in the case at bar was, again, the right to have his case determined by a jury. The mandatory instruction given by the trial court denied this right as to the essential element of intent.
¶12An evidentiary matter being involved, this is precisely the situation for which the Plain Error Rule was designed. Compare State v. Sanchez, 86 N.M. 713, 526 P.2d 1306 (Ct.App.1974).
¶13Rule 303, and both the New Mexico and United States Constitutions were violated. Plain error occurred in its strictest form. Defendant’s conviction should be reversed and the cause should be remanded for a new trial.