State v. COUCH

• Citation: 52 N.M. 127,193 P.2d 405
• Decision Date: 20 May 1948
• Docket Number: No. 4946,4946
• Parties: STATE v. COUCH.
• Court: New Mexico Supreme Court

52 N.M. 127

193 P.2d 405

STATE

v.COUCH.

No. 4946.

Supreme Court of New Mexico.

Dec. 31, 1946.

On Rehearing May 20, 1948.

[193 P.2d 406, 52 N.M. 129]

Caswell S. Neal, of Carlsbad, and C. Melvin Neal, of Hobbs, for appellant.

C. C. McCulloh, Atty. Gen., and Thos. C. McCarty, Asst. Atty. Gen., for appellees.

George L. Reese, Jr., Sp. Asst. Atty. Gen., for appellee, on rehearing.

HUDSPETH, Justice.

Appellant was convicted by a jury of the crime of voluntary manslaughter andsentenced to the penitentiary for a term of not less than seven nor more than ten years, from which he prosecutes this appeal.

The appellant and his wife resided in a small cottage, the property of appellant, surrounded by vacant lots, situate in Hobbs, Lea County, at the time and prior to the commission of the homicide. Appellant had complained to the police that during the absence of himself and wife parties had repeatedly entered his cottage for the purpose of copulating; that he had put additional locks on the doors of the cottage; and shortly thereafter on June 24, 1945, and June 27, 1945, in the nighttime, parties had driven by his cottage in automobiles and thrown rocks, some of them the size of a man's fist, against his house, and injured the building. The third attack was made on the residence of appellant about midnight June 30th, 1945. On that occasion immediately after two rocks struck the house, appellant fired two shots from a shotgun, through windows of his house, which caused the death of Charles Vaughan and the destruction of one eye of Robert Langford, who had previously lost the other eye while hunting. These boys were both sixteen years of age and approximately five feet and eleven inches tall. The deceased weighed about 150 pounds. They and another boy were riding on the running boards of the automobile, which was traveling at a slow speed. Other rocks were found in the car-and one of the three boys riding on the running boards testified he had not thrown the rock held in his hand when the shot struck him. There were no street lights in the vicinity of the cottage, although a gas torch at an oil well a mile away gave some light at times.

Appellant, a machinist, who had been promoted to foreman of the shop where he was employed, discussed with his boss the matter of the intrusions into his home, which had greatly disturbed his wife. The boss suggested that the intruder might be someone dissatisfied with his advancement to the foremanship, and advised him to wait before he did anything.

After the house was 'rocked' on the night of June 27th, which occurred between 12:00 and 1:00 o'clock, appellant called the police and two officers immediately responded. They saw the rocks andthe scars on the pine siding of the walls, and heard a full report of the previous occurrences, including the intrusions and the evidence left by the intruders in appellant's cottage. Appellant inquired of the Chief of Police the following Thursday evening as to developments in the case and was advised that nothing had been learned as to the identity of the parties. On the following Saturday night the killing occurred.

The state's witnesses testified to the three assaults on the house, and that theshots were fired immediately after the two rocks struck the house on Saturday night.

Appellant and his wife testified that they attributed the assaults on the house to their unknown enemy, who had entered their cottage during their absence. Appellant testified, in part, as follows:

'A. Our bed room, our bed set right in front of two West windows and we kept those two windows down and the shades pulled at all times, and the South window the one on the West corner next to our heads we kept it down all the way, and on the East side of the double window, the window farthest away from the bed, we kept it up four, five or six inches just for a little air to come through.

'Q. How long had you done that? A. Since shortly after we noticed the house being entered.

'Q. Why did you do that? A. I did not know who was coming in and prowling around, and we were afraid to lay there with the windows open.

'Q. Did you have the house air conditioned? A. No, sir.

'Q. You did that all through the summer? A. Yes, sir.

'Q. Had you and your wife discussed whether or not what had been her attitude about what you ought to do? A. She wanted to leave and move away from Hobbs, as she said she could not stand it any longer, and I said I had worked hard on the job I had and hated to just pick up and run off and leave it. We had worked hard to get out place fixed up as nice as it was.

'Q. Did you have any idea who might be causing this trouble? A. No, sir.'

Appellant's assignment of errors are based upon alleged errors in instructions of the court to the jury and the refusal of requested instructions.

In addition to the defense of habitation, appellant relies upon 1941 Comp. Sec. 41-4712 (Laws 1891, Chap. 65, Sec. 1), which declares to be a felony the unlawful and malicious destruction or injury of a building on the land of another, and 1941 Comp. Sec. 41-2413, which follows:

'Killing in defense of person or property, apprehending felon, suppressing riot, or preserving peace.-Such homicide is also justifiable when committed by any person in either of the following cases:

'First. When resisting any attempt to murder such person, or to commit any felony upon him or her, or upon or in any dwelling-house in which such person shall be.

'Second. When committed in the lawful defense of such person, or of his or her husband, wife, parent, brother, child, master, mistress, or servant, when there shall be reasonable ground to apprehend a designto commit a felony, or to do some great personal injury, and there shall be imminent danger of such design being accomplished; and

'Third. When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed; or lawfully suppressing any riot; or in lawfully keeping and preserving the peace. (Laws 1853-1854, p. 86; C.L. 1865, ch. 51, § 5; C.L. 1884, § 692; C.L. 1897, § 1069; Code 1915, § 1471; C.S. 1929, § 35-318.)'

Appellant assigns error based on the use by the court in its instruction on justifiable homicide of words of limitation on the right of appellant to kill.

After quoting the first paragraph of Section 41-2413, appellant's counsel maintain: 'This statute gives a man the rights to kill another who is committing a felony upon his home, he being therein. No qualification upon the right exists. If a felony is being attempted or committed and the violator is killed while engaged therein, the killing is justifiable. No limitation upon the degree of force used is material. Noactual necessity or apparent necessity to kill to prevent it is necessary. If the killing occurs while such a felony is in progress, the legislature has said it is justifiable.'

It is argued that since paragraphs 2 and 3 of this section contain qualifying limitations on the right to kill that the legislature intended there should be no limitation when one was resisting an attempt to commit the crimes listed in the first paragraph.

The Attorney General suggests that a latter statute, 1941 Comp. Sec. 41-2411 (Laws of 1907, Chap. 36, Sec. 11) modifies the first paragraph of Section 41-2413, which reads as follows: '41-2411. Justificable homicide-Defense of self, family, or property.-Any person who shall kill another in the necessary defense of his life, his family or his property, or in legal defense of any illegally proceedings against himself, his wife or family, shall be adjudged not guilty. (Laws 1907, ch. 36, § 11; Code 1915, § 1469; C.S. 1929, § 35-316.)'

This section is part of an act of twenty-three sections defining murder and other crimes and repealing, by number, fifteen sections of the Compiled Laws of 1897 and 'all other acts and parts of acts in conflict herewith.' Laws 1907, c. 36, § 23.

The Territorial court in the case of Territory v. Matson, 16 N.M. 135, 113 P. 816, 819, held that the words 'All acts and parts of acts in conflict herewith' added nothing to the repealing effect of the later legislation.

We lately considered the subject of repeals by implication in the case of Levers v. Houston, 49 N.M. 169, 159 P.2d 761;and State v. Melendrez, 49 N.M. 181, 159 P.2d 768, where there appear discussions of the subject.

In the earlier case of State ex rel. County Com'rs, San Miguel County v. Romero, 19 N.M. 1, 140 P. 1069, we hold: 'Syl. A subsequent statute, treating a subject in general terms, will not be held to repeal by implication an earlier statute, treating the same subject specifically, unless such construction is absolutely necessary in order to give the subsequent statute effect.'

In the late case of Robinson v. United States, 8 Cir., 142 F.2d 431, 432, the following language is quoted with approval from United States v. Zenith Radio Corp., D.C.Ill., 12 F.2d 614: "It is elementary that where there is, in an act, a specific provision relating to a particular subject, that provision must govern in respect to the subject as against general provisions in the act, although the latter, standing alone, would be broad enough to include the subject to which the more particular provision relates. Endlich, Interpretation of Statutes, § 216; Swiss National Insurance Co. v. Miller, 53 App.D.C. 173, 289 F. 571, 576; Washington v. Miller, 235 U.S. 422, 428, 35 S.Ct. 119, 59 L.Ed. 295; United States v. Nix, 189 U.S. 199, 205, 23 S.Ct. 495, 47 L.Ed. 775; Townsend v. Little, 109 U.S. 504, 519, 3 S.C.t. 357, 27 L.Ed. 1012. This rule is particularly applicable to criminal statutes in which the specific provisions relating to particular subjects carry smaller penalties than the general provision."

The older statute is more specific, particularly as to resisting an attempt to commit a crime; and we do not deem it repealed by Section 41-2411 and only modified or qualified to the extent that the word 'necessary' appearing in the later statute should...