Brown v. Martinez

• Decision Date: 07 April 1961
• Docket Number: No. 6735,6735
• Citation: 361 P.2d 152,100 A.L.R.2d 1012,1961 NMSC 40,68 N.M. 271
• Parties: , 100 A.L.R.2d 1012 Thomas N. BROWN, Jr., by Thomas N. Brown, Sr., his father and next friend; and Thomas N. Brown, Sr., Plaintiffs-Appellants, v. Jesus R. MARTINEZ, also known as J. Ross Martinez, and also known as Jess Martinez, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 152

361 P.2d 152

68 N.M. 271, 100 A.L.R.2d 1012

Thomas N. BROWN, Jr., by Thomas N. Brown, Sr., his father and next friend; and Thomas N. Brown, Sr. Plaintiffs-Appellants, v. Jesus R. MARTINEZ, also known as J. Ross Martinez, and also known as Jess Martinez, Defendant-Appellee.

No. 6735.

Supreme Court of New Mexico.

April 7, 1961.

Denny & Glascock, Lowell E. McKim, Gallup, for appellants.

Howard F. Houk, Santa Fe, for appellee.

MOISE, Justice.

Appellants, being father and son, appeal from a judgment dismissing their claim for damages against appellee growing out of injuries suffered by the son when he was shot in the left leg while engaged with several other boys in a watermelon stealing escapade on appellee's property.

We will refer to the son as appellant, the father being a party to the suit merely to recover items of expense incurred by him for medical and hospital care for the son, and as next friend because of the son's minority.

For a consideration of the issues raised by appellant and necessary for a decision there is no need to set forth the facts in any detail.

It is sufficient to point out that on the night of September 18, 1954, appellant, a 15-year old boy, and two other boys visited appellee's garden patch adjacent to the road for the purpose of stealing melons. About 8:30 or 9:00 p. m., the next night, being September 19, 1954, appellant with several other boys again went to the farm of appellee for the purpose of stealing watermelons. While two of the boys entered the melon patch, appellant went to the southeast corner of the property and was in the highway right of way close to the fence when appellee hearing the boys in the patch came out of his house with a rifle in his hand, called to the boys to get out, and seeing the two boys running toward the southwest corner of the property fired the gun toward the southeast to scare them, the bullet striking appellant in the back of the left leg, half way between the ankle and the knee, breaking the bones and coming out of the front of the leg.

Appellant's first point is an attack on the court's finding to the effect that appellant was 'next to the fence toward the southeasterly end of the melon patch.' He argues that according to the testimony of appellant and the boy with him at the fence they were closer to the center of the patch and that since, according to their testimony, they started running toward the west as soon as appellee yelled, and since the bullet entered at the rear of the leg and came out the front, the physical facts simply do not coincide with the court's finding. The only importance that we can see in the point is to raise an issue concerning appellee's testimony that he fired toward the southeast, away from where he saw the boys running and that he did not fire with intention of hitting anyone but only to scare them. This testimony of appellee was evidently believed by the court, as opposed to the evidence with which appellant attempts to reconstruct the situation at the time of the shooting, and although in the view we take of the case, this question is of small importance, we would point out that the finding of the court is supported by substantial evidence and accordingly will not be disturbed by us under a long established and uniformly followed rule of review in this court. Adams v. Cox, 55 N.M. 444, 234 P.2d 1043; Little v. Johnson, 56 N.M. 232, 242 [68 NM 274] P.2d 1000; Pentecost v. Hudson, 57 N.M. 7, 252 P.2d 511.

We now come to the determinative issue in the case. In addition to facts related above, the court also found that a considerable quantity of melons were taken or destroyed and that the fence between the patch and the road was damaged, and as a conclusion of law held that on the night in question appellant and the other boys had assembled unlawfully 'with the intent to do an unlawful act of force and violence against the property of the defendant (appellee) and to commit an unlawful act against the peace and that they did commit such unlawful acts by trespassing upon the defendant's land with intent and purpose of stealing crops from that land.' The court further concluded that appellant and his companions 'did unlawfully injure the fence enclosing the lands of defendant (appellee)'; that the appellee 'acted reasonably and purdently to prevent any further trespassing against his land and crops' and his actions 'did not constitute the use of unnecessary force, malice or wilful or specific intent to injure' appellant or anyone else but was only 'such force as was reasonably necessary to eject' the trespassers from the property.

Appellant asserts that the conclusions that defendant acted reasonably and prudently to prevent further trespassing; that he did not use excessive force and was free from malice or wilful intent to injure appellant were error, and further that in firing a high powered rifle under the facts and circumstances here present the court erred in not concluding appellee's actions were wilful and intentional or done with reckless disregard of consequences or in a grossly negligent manner.

There is no question that appellant, together with his companions, was engaged in an illegal undertaking, viz., trespassing on land occupied by appellee and stealing his crop; also that they had done some very minor injury to his fence. The question thus presented is whether or not injury resulting from the use of such force as a rifle to prevent a trespass or loss of property is actionable.

State v. McCracken, 22 N.M. 588, 166 P. 1174, 1176, was a case in which the defendant was charged with murder for killing a trespasser on land attempting to build a fence thereon. This court there said:

'We do not believe that the law, under such circumstances, would have justified the appellant in using force to the extent of taking human life in order that he might assert his dominion over the property in question. In Wharton on Homicide (3rd Ed.), Sec. 526, it is said:

"While the law justifies the taking of life when necessary to prevent the commission of a felony, one cannot defend his property, other than his habitation, to the extent of killing the aggressor for the mere purpose of preventing a trespass. Rather than slay the aggressor to prevent a mere trespass, he should yield and appeal to the courts for redress."

In that same case the following was quoted with approval from Carpenter v. State, 62 Ark. 286, 36 S.W. 900, 907:

'But the right to defend property against one who manifestly intends or endeavors, by violence or surprise, to commit a known felony, to the extent of slaying the aggressor, does not include the right to defend it, to the same extent, where there is no intention to commit a felony. A man may use force to defend his real or personal property in his actual possession against one who endeavors to dispossess him without right, taking care that the force used does not exceed what reasonably appears to be necessary for the purpose of defense and prevention. But, in the absence of an attempt to commit a felony, he cannot defend his property, except his habitation, to the extent of killing the aggressor, for the purpose of preventing a trespass; and, if he should do so, he would be guilty of a felonious homicide. Life is too valuable to be sacrificed solely for the protection of property. Rather than slay the aggressor to prevent a mere trespass, when no felony is attempted, he should yield, and appeal to the courts for redress. Ordinarily the killing allowed in the defense of property is solely for the prevention of a felony.'

State v. Waggoner, 49 N.M. 399, 165 P.2d 122, 124, was a case wherein appellant was charged with assault with intent to kill growing out of his firing a pistol at the complaining witness who was in the process of moving some property off lands leased by appellant. The court noted that the instruction given as to the right of appellant to use force to stop the prosecuting witness set forth no qualification of or limitation on a person's right to shoot to get back property being removed from his premises, and stated:

'Even if Harper had been a trespasser at the time of the assault, no trespass being threatened as against appellant's habitation, an attempt to to take the life of the trespasser merely to recover property would not have been justified. The rule in this respect is well settled.'

Next we notice State v. Couch, 52 N.M. 127, 193 P.2d 405, strongly relied on by appellee, a case wherein appellant was convicted of voluntary manslaughter when he shot and killed a man who was throwing stones at his residence. While reversing the case and granting a new trial the court examined the law of homicide when committed in defense of a person's abode. In doing so, the following was quoted from State v. Taylor, 143 Mo. 150, 44 S.W. 785, 789:

'We have thus gone at length into a review of the law upon this subject, and we deduce from the decided cases and the standard authors that a mere civil trespass upon a man's dwelling house does not justify him in slaying the trespasser; that the owner may resist the trespass, opposing force against force, but he has no right to kill unless it becomes necessary to prevent a felonious destruction of his property or the commission of a felony therein, or to defend himself against a felonious assault against his life or person; that if he kills without reasonable apprehension of immediate danger to his person or property, but in the heat of passion aroused by the trespasser, it will be manslaughter * * *.'

State v. Beal, 55 N.M. 382, 234 P.2d 331, 335, should also be noticed. This is a case where a boy, along with some companions, was out at night soaping windows as part of a Halloween prank. The court, while affirming a second degree murder conviction, had the following to say:

'A well founded belief that a known felony was about to be committed will extenuate a homicide committed in prevention of the supposed crime,...