State v. Bentford, 4053.

• Decision Date: 24 June 1935
• Docket Number: No. 4053.,4053.
• Citation: 46 P.2d 658,39 N.M. 293
• Parties: STATEv.BENTFORD.
• Court: New Mexico Supreme Court

39 N.M. 293

46 P.2d 658

STATE

v.BENTFORD.

No. 4053.

Supreme Court of New Mexico.

June 24, 1935.

Appeal from District Court, Grant County; Hay, Judge.

Alford Bentford was convicted of first-degree murder, and he appeals.

Reversed and remanded.

In murder prosecution where charge was laid in common-law form and it was disclosed that case was not tried upon theory that murder was committed by means of “torture” or in perpetration or attempt to perpetrate a felony, failure to instruct on second degree murder held reversible error, where jury from the evidence could have concluded that homicide was not deliberate. Comp.St.1929, § 35-304.

Alvan N. White, of Silver City, for appellant.

Frank H. Patton, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

ZINN, Justice.

Alford Bentford was convicted of the murder of Gussie Thomas, by means of strangling and suffocation. The verdict was murder in the first degree. The case is here on appeal.

The evidence supporting the conviction is circumstantial. The incriminating facts are as follows:

A pair of Bentford's overalls and a quilt from the bed in his room, upon examination, showed human blood. Gussie Thomas disappeared some time between dusk Saturday and Monday morning. Bentford was seen Sunday morning on the porch of the house where she was living. While in jail, Bentford stated to a number of people that he had dreams. In these alleged dreams, as related by Bentford, he claims he saw Jim Noble, with whom deceased had been living, though not married, kill deceased after a quarrel and throw her body in a mining shaft or some well. Bentford described the well wherein the body was subsequently found. He described in detail the manner in which the body was clothed; how she was hit with an iron; saw the alleged assailant in the dream tie a rag around the head of deceased; and saw many other details relating to the murder of deceased and disposition of her body. These details could only have been known to the murderer or an eyewitness. The jury was not impressed with the idea that the detailed narration of the crime came to appellant as visions while asleep. Appellant did not take the stand to refute any of the testimony.

Bentford, handcuffed, in custody of a deputy sheriff, was taken to the well described by him. Without the aid of mirror or reflector to enable him to look into the well, appellant made the statement that deceased was there and that he could see her body. The state's witness testified that they could not, with the naked eye, see the body in the well. When the body was brought up from the well, she was dressed and tied in the manner related by Bentford as allegedly envisioned by him in his dreams.

Appellant makes point of numerous claimed errors, which we have considered. We are not impressed with some and do not consider a decision or discussion of others essential at this time, in view of our disposition of this case.

The seventh error complained of by appellant is the failure of the court to submit to the jury murder in the second degree. The charge of murder was laid in the common-law form, and the court's instructions to the jury disclose that the case was not tried upon the theory that the murder was committed by means of torture or in the perpetration of or attempt to perpetrate a felony.

In the case of State v. Welch, 37 N. M. 549, 25 P.(2d) 211, 216, appellant was convicted of murder in the second degree. The theory of the prosecution was that the appellant killed the deceased, an officer, while resisting an attempted arrest, which resistance the state contended was a felony. Under Comp. St. 1929, § 35-304, all murder which is committed in the perpetration of or attempt to perpetrate any felony shall be deemed murder in the first degree. On the theory of the prosecution that the murder was committed in the perpetration of a felony, we held the verdict erroneous. We said: “On its face, the statute does not eliminate malice. However, back of the statute is the common-law rule that ‘felonious intention, as an element of the homicide, is supplied by the intention to do the unlawful act of which the homicide is the consequence.’ *** If the perpetration of a felony be relied upon as supplying the malice aforethought, the result cannot be murder in the second degree. The statute makes it murder in the first degree.”

In State v. Reed et al., 39 N. M. 44, 39 P.(2d) 1005, 1006, appellants were put to trial on an information charging murder in the first degree, and were convicted of murder in the second degree. The second count upon which the conviction was had predicated murder in the first degree upon the theory that appellants took deceased into their hands, tied and bound him, and placed him near and onto a fire, and set fire to his clothing and body, thereby inflicting mortal burns from which he died.

In the case of Territory v. Vialpando, 8 N. M. 211, 42 P. 64, 65, the charge was that Jesus Vialpando and Feliciano Chavez, “*** then and there, *** did take *** Tomas Martinez into both the hands of them, the said Jesus Vialpando and Feliciano Chavez, and did *** cast, throw, and push the said Tomas Martinez into a certain fire then and there burning, *** and by means of the flames thereof, upon the said Tomas Martinez, on his breast, belly, arms, legs, head, neck, and other parts of the body, divers mortal burns, sores, and wounds, of which said mortal burns, sores, and wounds the said Tomas Martinez then and there instantly died.”

The territorial Supreme Court, in the Vialpando Case, supra, said: “The facts set forth, we think, necessarily import torture, -a recital of facts from which the law draws the conclusion of torture; and the omission of the statutory word ‘torture’ cannot, we think, vitiate the indictment.”

It was on the second count in the case of State v. Reed et al., supra, that the case went to the jury. From the charge and proof on the second count, we concluded as a matter of law that the theory of the prosecution was “murder *** perpetrated by means of *** torture,” as in the Vialpando Case. Comp. St. 1929, § 35-304, conclusively makes murder by torture first-degree murder. The conviction of murder in the second degree could therefore not be upheld.

We recognize no distinction between State v. Reed et al., supra, and Territory v. Vialpando, supra. In the Vialpando Case the jury had returned a verdict of guilty “as charged in the indictment.” The trial court as a matter of law construed this as a verdict of murder in the first degree, and imposed sentence accordingly. The question before the territorial Supreme Court was whether the trial court correctly interpreted the allegations of the indictment as charging murder by torture. It held that such allegations did charge murder by torture, and that the verdict was correctly appraised as one of murder in the first degree.

In the Reed Case, it was for us to say whether the trial court erred in charging the jury that a death designedly accomplished by practically the same means employed in the Vialpando Case presented any other theory than that of death by torture. We held that it did not, and consequently the trial court erred in submitting second degree.

We thus held as a matter of law that death designedly accomplished by the means charged in the indictment and set out in the instructions presented a case of murder by torture. In so deciding in the Reed Case, the majority felt that it was simply following the Vialpando Case in holding that reasonable minds could not differ on the subject, nor draw any other conclusion. We still do not doubt the correctness of that view.

But if error so to have concluded in the Reed Case, which we in no manner concede, it would be doubly so to appraise the act set out in the instructions in the case at bar as presenting a case of death by torture as a matter of law or fact. Indeed, we think “torture” as contemplated by the statute carries with it the idea of causing undue and unnecessary pain and suffering incident to the death intended, inflicted for the purpose of satisfying some spirit of revenge or other unnatural and inhuman instinct. That idea was pronouncedly present in the Reed Case, as submitted to the jury, and, although death occasioned in the manner supposed in the charge in the case at bar would be atrocious, we are unable to see in it the “torture death” contemplated by the statute.

We pointed out in the case of State v. Reed et al., supra, and in the case of State v. Welch, supra, citing other cases, that in this jurisdiction the statute, Comp. St. 1929, § 35-304, descends to particulars and prescribes that certain kinds of murder shall be murder in the first degree. The means employed to effect the taking of a human life, as, for example, poison or torture, supplies the intensified or express malice and the deliberation necessarily required to raise a homicide to murder in the first degree. In a case of murder by torture or poison, there is nothing for the jury to speculate about, because the trial court can say as a matter of law that the means employed necessarily and conclusively raise the crime to murder in the first degree. However, where the question of malice or deliberation must be left for the determination of the jury as a question of fact, then both degrees must be submitted. It is the province of the jury to determine whether the evidence discloses intensified or implied malice. The statute supplies intensified malice and deliberation where the murder is committed by poison, torture, lying in wait, or in the perpetration or attempt to perpetrate a felony, or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life. Where the jury must conclude from the facts where the murder was a willful, deliberate, premeditated killing, perpetrated from a deliberate and premeditated design unlawfully and maliciously to effect the death of...