State v. Casaus

• Decision Date: 28 October 1963
• Docket Number: No. 7288,7288
• Citation: 1963 NMSC 194,73 N.M. 152,386 P.2d 246
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Paul CASAUS, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 246

386 P.2d 246

73 N.M. 152

STATE of New Mexico, Plaintiff-Appellee, v. Paul CASAUS, Defendant-Appellant.

No. 7288.

Supreme Court of New Mexico.

Oct. 28, 1963.

Joe Angel, Albuquerque, for appellant.

Earl E. Hartley, Atty. Gen., Shirley C. Zabel, Joel M. Carson, Asst. Attys. Gen., Santa Fe, for appellee.

CARMODY, Justice.

This is an appeal from a conviction of second degree murder.

Appellant alleges error on several different grounds. These consist of a claimed lack of sufficient evidence to sustain a conviction; that the case should have been dismissed because the only direct evidence was an extrajudicial confession, and that the state was bound by exculpatory statements contained therein relating to self-defense; that the state failed to prove the corpus delicti; and, lastly, that a new trial should have been granted because of certain statements made by the prosecutor in his closing argument.

The circumstances of the case, as shown by the evidence, were that at approximately six o'clock on the afternoon of January 6, 1962, a group of about eight young men, including the appellant, were gathered in a very small room in the rear of a bar at Bernalillo, New Mexico. The room was actually 5'5 1/2" X 9' and contained two benches against two of the walls and against one of the other walls empty cases of beer were stacked. The men in the room were drinking wine. The only light in the room came from a light globe outside of the one small window. After the people had been in the room perhaps half an hour, one Ignacio Lucero and the decedent, Manuel Sanchez, Jr., came in. Lucero asked for a drink, but one of the men in the room seized him by his clothing, whereupon Lucero ran out of the room and into the bar itself. Upon this occurring, several of the other persons in the room ran out, but left by a different doorway to the outdoors. Almost immediately, the deceased was seen staggering into the bar, and the bartender grabbed hold of him, but he fell to the floor. The deceased's companion, Lucero, testified that he saw the deceased come into the barroom itself, staggering and with cuts on his face, but otherwise there is no direct testimony as to where the offense occurred, other than the statement or confession of the appellant. In any event, the bartender observed that the deceased was badly hurt and laid him on the floor, away from the crowd that had gathered. The officers were called and, while he was being taken to the hospital, deceased died.

Although the deceased had several rather severe cust about the head and face, the cause of death was the cutting of the aorta just above the level of the attachment of the left kidney. Actually, the aorta was severed, and there was testimony that this artery was located approximately eight inches inside the surface of the body.

A search of the deceased's clothing and the small room disclosed no weapon of any type. The following day, the officers questioned the young men whom it was thought had been in the small room the night before. The appellant at first denied any knowledge of the affair, but later announced to the sheriff that 'he was the one that done it.' He then made a statement, which was thereafter put in writing, and there is no contention but that it was free and voluntary. The gist of it was to the effect that appellant and the deceased had had trouble some three years before, and appellant had cut the deceased with a knife. The deceased then went to California and had only returned a month or two before the fatal night. In the meantime, the appellant had had trouble with the deceased's brother, and the brother had also been cut. Appellant said that he was afraid the deceased was going to get back at him, as this had been reported to him by friends; that on the night of the death, when the deceased and his companion came into the small room and the companion had his small difficulty, the appellant jumped up on one of the benches when everyone else left the room except the deceased; that then the deceased took a step toward him with his hand in his pocket, or in a position to draw a knife, and that thereupon the appellant jumped him, immobilized his arm, and stabbed him several times. Appellant said he then fled from the room into the alley, threw away the knife and went home. After giving this statement to the officers, appellant went with them to search for the knife, but it was never found.

Appellant first contends that his motion for dismissal of the charge of murder in the second degree should have been sustained, because of the absence of a showing of malice and that the homicide was justified. The trial court properly instructed the jury as to the necessity of the finding of malice, either express or implied, and we are satisfied from the record that there was sufficient evidence before the jury from which it would have been justified in finding implied malice (see State v. Gilbert, 1933, 37 N.M. 435, 24 P.2d 280; and State v. Parks, 1919, 25 N.M. 395, 183 P. 433), although, according to appellant's statement, which was substantially the same as his testimony at the trial, the deceased took one step toward him in the dark room and appellant leapt upon him, according to his contention, in self-defense. However, the jury, having before it all of the facts and circumstances, could, and apparently did, determine that appellant was the aggressor. In a case such as this, it is frequently difficult, if not impossible, to pinpoint specific items of evidence that bear upon malice, but this court has previously said that malice may be implied from the mere fact that a deadly weapon was used. State v. Gilbert, supra; State v. Parks, supra. We are satisfied, from a painstaking examination of the entire transcript, that the court was correct in refusing to...