State v. Aragon.

• Decision Date: 08 October 1930
• Docket Number: No. 3509.,3509.
• Citation: 292 P. 225,35 N.M. 198
• Parties: STATEv.ARAGON.
• Court: New Mexico Supreme Court

35 N.M. 198

292 P. 225

STATE

v.ARAGON.

No. 3509.

Supreme Court of New Mexico.

Oct. 8, 1930.

Syllabus by the Court.

Statutes do not attempt to change common-law definition of “murder in second degree”; statutes do not limit “murder in second degree” to those homicides committed purposely or with intent to kill.

The statutes of New Mexico do not attempt to change the common-law definition of murder in the second degree, and do not limit murder in the second degree to those homicides committed purposely or with intent to kill.

As between murder in second degree and voluntary manslaughter, drunkenness of accused forms no legitimate matter of inquiry; unlawful and voluntary killing without deliberate premeditation constitutes “murder in second degree,” malice being implied unless character of provocation reduces it to voluntary manslaughter; drunken man is equally responsible as sober one for voluntary manslaughter.

Between the two offenses, murder in the second degree and voluntary manslaughter, the drunkenness of the offender forms no legitimate matter of inquiry; if the killing is unlawful and voluntary, and without deliberate premeditation, the offense is murder in the second degree, malice being implied, unless the provocation were of such character as would reduce the crime to voluntary manslaughter, for which offense a drunken man is equally responsible as a sober one.

Reason to apprehend death or great bodily harm unless assailant is killed will not justify killing unless such belief is entertained and acted upon.

It is not sufficient to justify the taking of human life that a person has reason to apprehend death or great bodily harm to himself unless he killed his assailant. He must entertain such belief and must act upon it.

In prosecution for homicide, refusing instruction on law of self-defense held not error, under evidence.

In a case of homicide, where the defendant testifies that he was not armed with the knife with which the killing was done, that he did not believe he had stabbed deceased, that he was very drunk shortly prior to the event and does not remember anything that happened in connection with the encounter in which he dealt the fatal blow, and there is no other substantial evidence from which an inference could fairly be drawn that the defendant entertained and acted upon a belief that he was in danger of death or great bodily harm, it was not error for the court to refuse to instruct the jury as to the law of self-defense.

Appeal from District Court, De Baca County; Patton, Judge.

Eloy Aragon was convicted of murder in the second degree, and he appeals.

Affirmed.

The court should not instruct as to self-defense, when there is no evidence to sustain the plea.

Keith W. Edwards, of Ft. Sumner, for appellant.

M. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.

BICKLEY, C. J.

Appellant was convicted of murder in the second degree.

[1][2][3] He complains that the court failed to submit the issue of voluntary drunkenness as a defense to murder in the second degree. That question was settled contrary to appellant's contention in State v. Cooley, 19 N. M. 91, 140 P. 1111, 52 L. R. A. (N. S.) 230. The only decisions we have found contra are in those jurisdictions where a specific intent to take life is required to constitute murder. See annotation, “Drunkenness as Affecting Existence of Elements Essential to Murder in Second Degree,” 8 A. L. R. 1052. Such a specific intent is not an essential to a charge of murder under the common law or our statutes. See Territory v. Montoya, 17 N. M. 122, 125 P. 622.

Appellant also complains of the instruction given by the court treating of the effect of voluntary intoxication as affecting existence of elements essential to murder in first degree, as being misleading and prejudicial because it concluded with the language: “If the jury believe from the evidence and beyond a reasonable doubt that the Defendant Eloy Aragon killed the deceased, G. H. McLain, as charged in the indictment, and at the time of such killing the Defendant was under the influence of liquor voluntarily taken by him, then said intoxication so produced is, in law, no excuse for the act done by the Defendant, if it was done, unless they believe from the evidence such intoxication was such as did in fact deprive him at the time of the killing of the mental capacity to form a malicious, deliberate, and premeditated purpose to kill, in which event they may still find the Defendant guilty of murder in the second degree, under the instructions herein given.”

Appellant argues that the instruction should have included at the end thereof, “or voluntary manslaughter under the instruction herein given.” He argues that the effect of the omission of the words last quoted was to mislead the jury into believing that they could only consider whether the defendant was guilty of murder in the first or second degrees. We do not think so. Even if the instruction was faulty, the appellant was not injured thereby so far as the first degree charge...