State v. Crosby.
| Decision Date | 23 April 1920 |
| Docket Number | No. 2281.,2281. |
| Citation | 26 N.M. 318,191 P. 1079 |
| Parties | STATEv.CROSBY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
In a case where the indictment charges murder in the first degree, and the defendant pleads self-defense, if there is evidence in the case which would make the crime manslaughter, the court properly instructed upon manslaughter.
Error committed by giving an incorrect instruction is not cured or rendered harmless by the giving of a correct instruction on the same subject.
Appeal from District Court, Chaves County; Richardson, Judge.
Stephen Crosby was convicted of manslaughter, and he appeals. Reversed, and a new trial ordered.
In a case where the indictment charges murder in the first degree, and the defendant pleads self-defense, if there is evidence in the case which would make the crime manslaughter, the court properly instructed upon manslaughter.
O. O. Askren, of Santa Fé, and L. O. Fullen, of Roswell, for appellant.
Robert C. Dow, of Carlsbad, for the State.
The defendant, Stephen Crosby, was indicted in Chaves county for the murder of one Julian Shafer on October 14, 1917. At the November term of the district court for said county he was found guilty of manslaughter and sentenced. From the verdict and sentence defendant appealed to this court.
The facts out of which this case arose are substantially as follows:
At the time of the killing the deceased, Julian Shafer, was occupying and using school section 36, the section on which the killing occurred. Said section had a fence on the south line and a fence on the west, but the fence on the west was not on the true line, but was about 20 feet further west than the true line between sections 35 and 36. There was no fence on the north and east of the section. The defendant had leased land, and was entitled to graze and use the same, to the north and east of said section 36, and had leased water from one Graves, who owned the section adjoining 36 on the south.
On Friday afternoon prior to the killing on Sunday, the defendant moved approximately 500 head of cattle from his home to a point north and west of section 36. The cattle remained there until late Saturday afternoon, when his employé, “Doc” Roberts, started the cattle south for water in the direction of the Graves house. On the following morning, Sunday, the defendant and Roberts left the defendant's home to look after the cattle and to ascertain if they had gone to water. They rode north and west of section 36 about a mile and a half in the vicinity of a schoolhouse, where they separated, and began to gather what cattle had not gone to water, intending to drive them south to the water. In the meantime the deceased, Shafer, came from his home, about a mile northeast of section 36, and began rounding up defendant's cattle--that is, those cattle that had been to the water and were coming out--and began driving them through a gate in the south fence; it being his purpose to keep them below the south fence of the school section 36, and prevent them from going on said section or across it, or up the road along the fence running north to the lands which Crosby had north of the said section. When the defendant learned that Shafer was driving his cattle out, he and Roberts galloped south down the road until near the gate at the southwest corner of the section, where Shafer, according to the testimony of the defendant and Roberts, intercepted them and began cursing and abusing the defendant, calling him vile names, and stating he would “do him up.” The defendant, according to his testimony, tried to reason with the deceased, and he and Roberts continued in the direction they were going, intending to go around the cattle to drive them along the west fence toward the north. According to defendant's testimony, Shafer said that he would not allow this to be done, and that he was going to kill defendant and do it right then. At this time, according to defendant's testimony, he made a move as though to get a pistol, whereupon the defendant shot him three times and killed him.
There was evidence in the case of threats by the deceased having been made against the defendant, some of which were communicated to him, and some of which were not. The only eyewitness of the killing other than the defendant was Roberts, who corroborated the defendant as to the circumstances of the killing. The plea of the defendant was self-defense, and the case was tried for the state on the theory of deliberate, premeditated murder. The testimony showed that no weapon was found upon Shafer, nor was any found in the vicinity of his body after the killing, nor did the defendant, or the witness Roberts, at any time see a weapon in the hands of Shafer.
The appellant contends that he was not guilty of the crime of manslaughter, of which he was convicted; that under the circumstances he was either guilty of murder in the first degree, or not guilty, having killed the deceased in self-defense.
[1] The appellant assigns numerous errors, relying principally upon the assignment that the court erred in the instruction to the jury in regard to manslaughter for the reason that there was no evidence of this offense, the evidence supporting only a verdict of murder in the first or second degree or in self-defense. Manslaughter is defined by our statute (section 1460, Code 1915) as an unlawful killing of a human being without malice, and being of two kinds--voluntary, upon a sudden quarrel or in the heat of passion; and involuntary, in the commission of an unlawful act which amounts to felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution or circumspection. It seems to us that the instruction in this case was proper and justified by the evidence as shown by the above statement of facts. The defendant testified that the deceased cursed and abused him, and the jury was certainly justified in assuming that the homicide was the result of a sudden quarrel, or the act of killing was done in the heat of passion. As shown by their verdict, they did not believe the state's case in its entirety, nor the defendant's. The state attempted to make out a case of murder in the first degree; the defendant pleaded self-defense, and introduced evidence to that effect. The jury, however, did not take either the state's view of the case nor the defendant's, but apparently believed, as shown by their verdict, that the homicide was committed in the manner which constitutes manslaughter, as defined by the statute and the instructions of the court. The verdict is supported by the evidence, as shown by the record and the foregoing statement therefrom.
The appellant cites the case of Territory v. Fewel, 5 N. M. 34, 17 Pac. 569, where an instruction in murder in the third degree was held to be error because there was no evidence in that case to sustain such instruction. The statute law of murder at the time the Fewel Case was tried defined murder in the third degree as killing in a cruel and unusual manner, and the court held there was no evidence of this element of murder in the case. It is distinguishable from the present case,...
To continue reading
Request your trial
-
1997 -NMCA- 35, State v. Acosta
... ... 191, 561 P.2d 464 (1977). However, because " 'instructions must be considered as a whole, and not singly,' " Parish, 118 N.M. at 41, 878 P.2d at 990 (quoting State v. Crosby, 26 N.M. 318, 191 P. 1079 (1920)), our concern about fundamental error in the aggravated battery instruction leads us to review the related instructions for self-defense and defense of another as well ... 2) Retrospective Application of Parish ... ¶10 The ... ...
-
State v. Montoya
... ... See Parish, 118 N.M. at 41, 878 P.2d at 990 (holding that "`an erroneous instruction cannot be cured by a subsequent correct one'") (quoting State v. Crosby, 26 N.M. 318, 324, 191 P. 1079, 1081 (1920)) ... III. Sufficiency of the Evidence ... {25} Defendant argues that there was insufficient evidence to support his murder conviction because the State failed to prove the causation element. According to Defendant, ... ...
-
State v. Parish
... ... Hamilton, 89 N.M. 746, 750, 557 P.2d 1095, 1099 (1976) (citing State v. Rushing, 85 N.M. 540, 543, 514 P.2d 297, 300 (1973)); State v. Rhea, 86 N.M. 291, 293, 523 P.2d 26, 28 (Ct.App.), cert. denied, 86 N.M. 281, 523 P.2d 16 (1974). From the early case State v. Crosby, 26 N.M. 318, 191 P. 1079 (1920), we can glean two principles to guide our determination of whether the defective jury instructions gave rise to reversible error: (1) "an erroneous instruction cannot be cured by a subsequent correct one," Id. at 324, 191 P. at 1081 (citing Territory v. Pridemore, ... ...
-
State v. Horton
...evil inherent in instruction No. 16, nor can we say which the jury followed. This case falls squarely under the rule of State v. Crosby, 1920, 26 N.M. 318, 191 P. 1079, that error committed in giving an incorrect instruction is not cured or rendered harmless by the giving of a correct instr......