State v. Anaya
| Decision Date | 06 October 1969 |
| Docket Number | No. 8735,8735 |
| Citation | 460 P.2d 60,80 N.M. 695,1969 NMSC 130 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Gilbert Joe ANAYA, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
The defendant was charged with the crime of murder in Santa Fe County, New Mexico. After trial, the jury returned a verdict fnding the defendant guilty of second degree murder. The trial court imposed a sentence of not less than 10 nor more than 50 years. Defendant appeals.
The record reveals that an information was filed on July 7, 1965, accusing defendant of murdering Sophia Sena, also sometimes known as Sophie Sena, Sofie Sena and Sofia Sena, on or about June 20, 1965, in Santa Fe County, in violation of § 40A--2--1, N.M.S.A., 1953 Comp.
The information and bill of particulars alleged that the defendant did willfully and with premeditation murder and kill Sophia Sena; that prior to the killing, defendant uttered a 'bad remark' to decedent and was slapped therefor at Vigil Brothers Bar. Decedent departed that bar and defendant left shortly thereafter. Decedent went to the Twentieth Century Club and remained a short time and, upon leaving this latter bar, she walked north on Galisteo Street, where the defendant had stopped his automobile, waited and blocked her path. With gun in hand, defendant told decedent he was going to kill her. Defendant fired two shots, missed decedent, and again told her he was going to kill her. Defendant fired a third shot and the bullet penetrated the left side of decedent's head. She fell to the pavement, mortally wounded, and later succumbed. Defendant then sped away in his automobile. The three shots were fired at an approximate distance of three feet from decedent.
Appellant contends, under point I, that the trial court erred in giving instruction No. 8 and, under point II, in refusing to instruct the jury as requested by defendant. The court gave 30 instructions to the jury, among them No. 8, which reads:
This instruction was proper under the circumstances of the instant case. Appellant contends the giving of the instruction was prejudicial because it overemphasized the use of the gun. He further contends that the trial court should have adopted his requested instruction No. 30, in...
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State v. Riggsbee
...to be submitted to the jury, but only if there is some evidence tending to establish the lesser included offenses. State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969). There was insufficient evidence in the instant case to warrant an instruction on involuntary manslaughter. However, the jury in......
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State v. Andrada
...N.M.S.A.1953 (Repl.Vol. 6). Error is claimed because of the trial court's refusal to instruct on these three offenses. State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969) states: 'Appellant had the right to have instructions on lesser included offenses submitted to the jury. This right depends,......
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State v. Marquez
... ... You may imply malice in this case if you find beyond a reasonable doubt that the killing was perpetrated by means of a deadly weapon ... The above instruction has been approved in State v. Duran, 83 N.M. 700, 496 P.2d 1096 (Ct.App.1972); State v. Anaya, 80 N.M. 695, 460 P.2d 60 (1969); State v. McFerran, 80 N.M. 622, 459 P.2d 148 (Ct.App.1969) ... Defendant contends that he was entitled to have the jury determine malice based upon all the facts and circumstances of the case, not just the fact that the only weapon he had ... ...