State v. La Boon

Decision Date16 November 1960
Docket NumberNo. 6755,6755
Citation357 P.2d 54,67 N.M. 466,1960 NMSC 118
PartiesSTATE of New Mexico, Appellee, v. Arthur Leslie LA BOON, Appellant.
CourtNew Mexico Supreme Court

Emmett C. Hart, Tucumcari, for appellant.

Hilton A. Dickson Jr., Atty. Gen., Boston E. Witt and F. Harlan Flint, Asst. Attys. Gen., for appellee.

NOBLE, Justice.

Arthur Leslie LaBoon was charged and tried upon an information charging second degree murder and appeals from a conviction of voluntary manslaughter. Two assignments of error are relied upon for reversal of the conviction and judgment resulting therefrom, (1) error in permitting a hypothetical question, and (2) that the statute does not permit a conviction of manslaughter under a charge of murder.

Considering first he claimed error in permitting the witness Dr. Hoover to answer a hypothetical question as to the length of time required, in his opinion, for decedent to bleed sufficiently to cause of spot of blood depicted on a photograph exhibited to him, there is but a single question presented. Was there evidence in the record from which the jury might reasonably conclude that the blood shown in the picture was that of A. P. LaBoon, the deceased? The objection to the question limits it to that fact. Upon the objection made, we find no error in permitting the question and answer. The question propounded was:

'Q. Now, Doctor, again, assuming that (referring to the spot in the photograph) that is the blood of A. P. LaBoon, and from your examination of him at the hospital, knowing the nature and extent of his wounds there, and from the autopsy performed, how long, in your opinion would it take the deceased to bleed that amount?'

The record shows that the question, in substantially the same form, was asked four different times. Substantially the same objection was made each time; that the witness was asked to assume that the blood spot shown in the photograph was that of A. P. LaBoon, without evidence of that fact; that there was no evidence as to whether it was the blood of A. P. LaBoon or of appellant or of both of them; that the hypothetical question was therefore not based upon a fact in evidence.

Before permitting an answer to the question, the trial court required the State to develop further as to whose blood was shown in the picture. It was admitted that appellant and A. P. LaBoon had been fighting at that place and had been on the ground. Testimony was then elicited that A. P. LaBoon could have bled that amount from the wounds observed by the doctor; that a cut on the arm of appellant was of subcutaneous tributaries and to large vessels or arteries were severed and it was very unlikely he would have bled as much.

Counsel may propound a phypothetical question based upon his theory provided it is based upon evidence which the jury could reasonably believe to be true, and as was said in Elsea v. Broome Furniture Co., 47 N.M. 356, 143 P.2d 572, 582:

'The jury is entitled to rely upon rational inferences deductible from the evidence, whether arising from expert testimony or otherwise.'

There was evidence from which the jury might reasonably have found that the blood was that of A. P. LaBoon.

Counsel for appellant now asserts that the hypothetical question is further inadmissible because it failed to include sufficient facts upon which the witness could form an opinion and that it called for an answer of pure guess and speculation. In support of this he points to the cross-examination of the witness showing that, among other things, the witness assumed the walk to have been of dirt when in fact it was concrete, and that the photograph did not disclose the thickness of the blood nor its quantity. No objection was made in the trial court to this defect...

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10 cases
  • State v. Miller
    • United States
    • New Mexico Supreme Court
    • April 1, 1968
    ...to the introduction of evidence must be clearly stated so that the court may intelligently rule upon the objection. State v. LaBoon, 67 N.M. 466, 357 P.2d 54; State v. Clarkson, 42 N.M. 289, 76 P.2d 1161; State v. Compton, 57 N.M. 227, 257 P.2d 915; State v. Heisler, 58 N.M. 446, 272 P.2d 6......
  • State v. Bell
    • United States
    • New Mexico Supreme Court
    • March 1, 1977
    ...exclusively by medical testimony. The jury is entitled to rely upon rational inferences deducible from the evidence. State v. La Boon, 67 N.M. 466, 357 P.2d 54 (1960). The general description of the patient's appearance and condition upon arrival at the Bernalillo County Medical Center and ......
  • State v. Maes
    • United States
    • Court of Appeals of New Mexico
    • April 4, 2019
    ...taking of human life, as a 'generic offense' encompassing several degrees or forms"); State v. La Boon, 1960-NMSC-118, ¶ 10, 67 N.M. 466, 357 P.2d 54 ("Manslaughter is included in the charge of murder."); State v. McFall, 1960-NMSC-084, ¶ 12, 67 N.M. 260, 354 P.2d 547 (stating that "manslau......
  • State v. Gray
    • United States
    • Court of Appeals of New Mexico
    • August 9, 1968
    ...because it failed to alert the trial court to the nature of the objections which are now being urged upon us. See State v. La Boon, 67 N.M. 466, 357 P.2d 54 (1960); State v. Lewis, 36 N.M. 218, 12 P.2d 849 (1932); State v. Trujillo, 30 N.M. 102, 227 P. 759 (1924); Henderson v. Dreyfus, 26 N......
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