Carpio v. State.

• Decision Date: 20 July 1921
• Docket Number: No. 2572.,2572.
• Parties: CARPIOv.STATE.
• Court: New Mexico Supreme Court

27 N.M. 265

199 P. 1012

CARPIO

v.STATE.

No. 2572.

Supreme Court of New Mexico.

July 20, 1921.

Syllabus by the Court.

A charge that murder was done willfully, deliberately, and premeditatedly and of malice aforethought is sustained by proof that it was committed with a mind imbued with these qualities, though they were directed against a person other than the one killed.

In a homicide case where A. shoots at B. and the bullet strikes C. and kills him, the malice or intent follows the bullet.

Instructions given by the court to the jury, not objected to in the court below, will not be reviewed upon appeal.

Appeal from District Court, Grant County; Edwin Mechem, Judge.

Antonio Carpio was convicted of murder in the first degree, and he appeals. Affirmed.

A charge that murder was done willfully, deliberately, and premeditatedly and of malice aforethought is sustained by proof that it was committed with a mind imbued with these qualities, though they were directed against a person other than the one killed.

David E. Grant, of Santa Fé, for appellant.

Harry S. Bowman, Atty. Gen., for the State.

ROBERTS, C. J.

Appellant was tried and convicted of the crime of murder in the first degree and appeals. On August 4, 1919, appellant attended a dance at the town of Central, Grant county, N. M. Appellant had asked a young lady, one Julia Olguin, to dance with him, and she had refused. Thereupon he told her that if she would not dance with him she could not dance with any other person. Later she was dancing with one Casamero Lucero, whereupon appellant caught hold of Lucero and told him that he could not dance with Miss Olguin. Lucero slapped or pushed appellant, and some other men pushed him outside the door and closed the door. Later Efren Rios entered the ballroom and told Lucero that Carpio, the appellant, wanted to see him outside. Lucero went out followed by Rios and approached appellant, and when he got to within 14 or 15 paces of appellant, appellant told him to stop; whereupon appellant fired at Lucero, and the bullet struck Rios and killed him. A second shot was fired at Lucero, wounding him but not fatally.

[1] The first point made upon which appellant relies for a reversal is that there was a variance between the allegation of the indictment and the proof adduced upon the part of the state, in that the indictment alleged that the defendant feloniously, willfully, deliberately, premeditatedly, of his malice aforethought, and from a deliberate and premeditated design, then and there unlawfully and maliciously to effect the death of Enfren Rios, did assault and shoot the said Enfren Rios, from the effects of which assault and shot said Rios died; whereas, the proof showed that the malice and deliberation were directed against Lucero and not Rios. There is no merit in this argument, however, because under the law the malice and deliberation were transferred from Lucero to Rios. In other words, the malice followed the bullet. In Wharton on Homicide (3d Ed.) § 359, the author says:

“The rule is nearly, if not quite, universal that one who kills another, mistaking him for a third person whom he intended to kill, is guilty or innocent of the offense charged the same as if the fatal act had killed the person intended to be killed. * * * And a charge that murder was done willfully, deliberately, and premeditatedly, and with malice aforethought, is sustained by proof that it was committed with a mind imbued with these qualities, though they were directed against a person other than the one killed.”

In the case of Brooks v. State, 141 Ark. 57, 216 S. W. 705, a very late case, having been decided December 1, 1919 (reversed on other grounds), the defendant had been indicted for the murder of a girl named Irene Crawford, although the shot was directed at one John Law. It was insisted by the appellant that the indictment was defective because it charged the defendant with killing Irene Crawford with “the willful, malicious, premeditated and deliberate intent then and there to kill and murder her, the said Irene Crawford.”

The court held that there was no error in the indictment, stating:

“An indictment for homicide in a case like this must allege the assault as made on the person killed. Where the accused shoots at one man and kills another, malice will be implied as to the latter; and a felonious intent is transferred, on the same ground, as where poison is laid to destroy one person and is taken by another. Hence the felonious intent is thus transferred, and the indictment must be...