State v. Beal, 5337
| Decision Date | 16 July 1951 |
| Docket Number | No. 5337,5337 |
| Citation | 55 N.M. 382,234 P.2d 331,1951 NMSC 55 |
| Parties | STATE v. BEAL. |
| Court | New Mexico Supreme Court |
Caswell F. Neal, Carlsbad, for appellant.
Joe L. Martinez, Atty. Gen., Walter R. Kegel, Asst. Atty. Gen., for appellee.
An information was filed against Charlie Beal in Eddy County charging him with the murder of Lynn Taylor, and upon the trial was found guilty of second degree murder. This appeal is from the judgment and sentence entered upon the verdict so returned.
The evidence for the state tended to show that the deceased, a fifteen-year-old high school student, together with three other companions of his age set out to celebrate Halloween night, October 31, 1949, and while in preparation for soaping the windows of the Mears Grocery Store, met a tragic death.
Cruz Fernandez, a deputy sheriff, called by the state, testified that he examined the premises where the deceased was killed and there found one empty hull approximately thirty feet and four inches east of the gasoline pump of the filling station. Approximately sixty-nine feet north of the spot where the empty hull was found was a blood splotch. Fernandez further testified that and another deputy found three other shells; one was forty feet east of the gasoline pump, one approximately five feet away from the one just above described, and another one some forty-three feet east of the pump at a little angle. A fifth empty shell was picked up by some young boy in the vicinity of the third shell, but its exact location was not marked.
Don Ball testified that he, the deceased and two other boys set out to soap windows on the night in question. When they arrived at the grocery store and filling station Mr. Mears was closing it. Mr. Mears got in his truck and began backing it then he and Veryl Brunton hid behind a gasoline pump. Billy Yarbro was walking behind the truck. When Mr. Mears got out of his truck Billy hid behind a gasoline pump and when discovered Mr. Mears chased him around it, then he broke and ran away. He (Don) also ran away and when he had reached a point about eighty yards from the filling station, on the highway, he heard three or four shots.
Veryl Brunton, testified that on the way to Mears Grocery Store, he and the other boys soaped the windows of a truck which was parked in front of St. Francis Hospital. All of them then crossed the street on their way to the grocery store and filling station. When they got to the edge of the pavement of the highway they observed Mr. Mears closing the store. Mr. Mears then got on his truck and began to back it up. Mr. Mears passed close by him and Lynn Taylor who were hiding behind the air compressor. He did not say anything to them but was mumbling to himself. When Mr. Mears got to the edge of the station both ran up the highway. When he and Lynn Taylor reached a point about ninety yards from the store and filling station he heard the first shot, but he kept on running and met Don Ball who was also running away. Within a few seconds after the first shot he heard four or five more fired in rapid succession. The first shot sounded no louder than the rest of them.
Dr. G. C. Hogsett, testified that he examined the body of Lynn Taylor and found a gun shot wound on the back of the head, the bullet entered the rear of the skull just behind the right ear and passed directly through the brain and lodged in the skin just over the left eye.
B. E. Allison, testified that he lived about one hundred feet on the opposite side of the street from Mears' Grocery Store and Filling Station. On October 31, 1949, at about 7:15 or 7:20 o'clock in the evening while he was outside the house he heard a shot, then there was a pause of about fifteen or twenty seconds, then he heard three or four more shots fired in rapid succession. The first shot sounded no louder than the rest. The flash from the first shot came from the south side of the filling station at the edge of the pavement. The other flashes came from a gun fired from the middle of the highway. The flashes came from a gun pointed in a horizontal direction. He had been in the Mears' grocery store on that evening at about 7:00 o'clock. While there he had a conversation with the defendant about it being Halloween night. Several children came into the store all blacked up. He made the remark 'I believe I will go home--these spooks are already out after me and I think I will get on home,' just hurrahing them. He purchased some penny candy and chewing gum and things to treat the kids because he knew they would come to his house. The defendant's wife made the remark to Mr. Mears, her father, that 'those kids are going to be here and you just as well treat them with some penny candy and get rid of them--that is the easiest way to get shut of them.'
The defense was based upon the claim that the defendant believed his father-in-law was being robbed and that he went to his aid. He testified that when he stepped out of the trailer house door, which was located about thirty-five or forty feet behind the grocery store some one ran in front of him breathing hard and running fast. At the same time he heard a clacking noise. He looked in the direction of the grocery store and saw some one run across the highway. He turned back went into the trailer house and got his .22 automatic pistol and ran as far as Mr. Mears' truck which was parked on the side of the building and called for Mr. Mears but received no answer. He heard some one say what he thought was 'help.' He heard a shot and two boys ran around the side of the building. He then started firing into the air. He thought Mr. Mears was being robbed otherwise he would not have fired the shots. Mr. Mears came around the corner of the building and said 'Charlie, I shot in the air.' The boys were not bothering anyone; they were running away. He fired five or six shots. He never denied shooting Lynn Taylor.
Mr. Glenn Mears, called by the defense, testified substantially as follows: That he operated a grocery store and filling station at Loving, New Mexico. On October 31, 1949, while backing his truck after closing the store he noticed some one behind him. He stopped and got out of the truck but by that time the person had disappeared. He saw the shadow of a man next to the gasoline pump and started to investigate but when he got to the pump the person ran around it and he chased him until he broke and ran away. Then he started towards the store and when he got close to the air compressor he saw two or three persons break and run. He yelled at them to 'halt or stop,' he does not remember which. At that moment he heard some shots. He had a gun in his hand but did not fire it. On cross-examination, he stated:
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The defendant excepted to instruction No. 20-A. He contends that it was erroneous in that it required the existence of an absolute necessity for the killing; and that it wholly denied to the defendant a submission of the question of apparent necessity. In instruction No. 20, the court laid down general principles, and instruction No. 20-A is obviously a continuation of the matters treated in instruction No. 20 and fully ties into the discussion of the right to kill to prevent the commission of a felony. These instructions read as follows:
'On the other hand, if you find and believe from the evidence beyond a reasonable doubt that under the circumstances at the time and place of the shooting, the defendant did not as a reasonable and prudent man under the same or similar circumstances reasonably believe that a felony was about to be committed or was being committed or that the defendant did not as a reasonable and prudent man under the same or similar circumstances would have reasonably believed that there...
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