State v. Cochran, 8263
| Decision Date | 19 June 1967 |
| Docket Number | No. 8263,8263 |
| Citation | 430 P.2d 863,78 N.M. 292,1967 NMSC 146 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Billy Joe COCHRAN, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
SPIESS, Judge, Court of Appeals.
Defendant Cochran was convicted of voluntary manslaughter and this appeal follows. Several grounds are urged for reversal. The decisive issue is whether the trial court committed prejudicial error in refusing to give a requested instruction relating to one's right to arm himself in anticipation of danger.
Briefly stated, the facts show that during the early morning hours of December 16, 1965, defendant Cochran, the deceased Hays and others were engaged in a poker game at a house on Tennessee Street in Clovis, New Mexico. Immediately following the game the deceased became angry with defendant, cursed him, threatened to kill him and fired three pistol shots close to his head.
After firing the shots deceased took defendant's money which was on a table nearby and likewise took a pistol which defendant had upon his person. At defendant's request the deceased, after unloading the pistol which he had taken from defendant, returned it to him. At this time defendant left the house and went to a motel where he met two persons with whom he planned to return to the house on Tennessee Street and continue the poker game.
After reloading his pistol defendant returned to the house on Tennessee Street and parked his automobile in the proximity of deceased's automobile. While defendant was absent from the house on Tennessee Street the deceased obtained a shotgun, loaded it, went out of the house and placed it between the front seats of his automobile. He, together with other persons were in or near deceased's automobile at the time the defendant arrived.
The testimony is conflicting as to the occurrences which immediately preceded the homicide. Defendant's version is that after he had parked his automobile near the deceased's car and was standing outside of his vehicle the deceased then threatened to kill him with the shotgun. Defendant described the incident as follows:
At the conclusion of the evidence defendant tendered an instruction purporting to set forth the right of a person to arm himself in anticipation of an attack reasonably believed to be imminent and of such character to endanger his life or limb, or cause him serious bodily harm. The request was refused and no other instruction involving the same principle was given. No contention is made that the requested instruction embodies an incorrect statement of law.
Appellee undertakes to justify the court's refusal on the ground that the issues presented by the evidence did not warrant the charge.
We have reviewed the evidence and in our opinion a substantial conflict is present as to whether the dispute between defendant and deceased was over when defendant returned to the house on Tennessee Street. The evidence, in our opinion, would justify a conclusion that defendant had reasonable ground to anticipate an attack by the deceased of such character as to endanger his life or cause him serious bodily injury. The following portion of defendant's testimony is pertinent:
'Question: Did you load your .38 pistol?
Answer: Yes, I did.
Question: Why?
Answer: Because the man had robbed me, I didn't know whether he would be...
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State v. Parish
...a reasonable doubt about the matter. State v. Harrison, 81 N.M. 623, 630, 471 P.2d 193, 200 (Ct.App.) (citing State v. Cochran, 78 N.M. 292, 294, 430 P.2d 863, 865 (1967)), cert. denied, 81 N.M. 668, 472 P.2d 382 (1970); Pruett, 24 N.M. at 72-73, 172 P. at 1046 (holding erroneous a jury ins......
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State v. Harrison
...All he was required to do was produce evidence which would raise a reasonable doubt in the minds of the jurors. State v. Cochran, 78 N.M. 292, 430 P.2d 863 (1967); State v. Pruett, 24 N.M. 68, 172 P. 1044 (1918). The instruction does not state that defendant is required to prove that he act......
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State v. Travis
...his plea of self defense,' and that this constituted 'a denial of fundamental fairness.' He relies upon the cases of State v. Cochran, 78 N.M. 292, 430 P.2d 863 (1967), and State v. Pruett, 24 N.M. 68, 172 P. 1044 We do not agree that the effect of the questioned language in the instruction......
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State v. Cochran
...Atty. Gen., Santa Fe, for appellee. OPINION COMPTON, Justice. This is the second time we have had this case before us. State v. Cochran, 78 N.M. 292, 430 P.2d 863. .appellant was previously convicted of the crime of voluntary manslaughter by a jury of Quay County and he appealed. We reverse......