State v. Flowers
| Decision Date | 27 September 1971 |
| Docket Number | No. 9234,9234 |
| Citation | 1971 NMSC 91,489 P.2d 178,83 N.M. 113 |
| Parties | STATE of New Mexico, Plaintiff-Appellee, v. Curtis Franklin FLOWERS, Defendant-Appellant. |
| Court | New Mexico Supreme Court |
Defendant was charged and convicted of murder in the first degree, contrary to the provisions of § 40A--2--1, N.M.S.A.1953 (Repl.Vol. 6, 1964), and of unlawfully taking a motor vehicle, contrary to the provisions of § 64--9--4(a), N.M.S.A.1953 (Repl.Vol. 9, pt. 2, 1960). We affirm.
Briefly the facts pertinent to the questions raised on this appeal are: (1) defendant, a woman friend and a young man friend decided to spend some time in the mountains north of Deming, New Mexico; (2) there are some differences in the testimony as to defendant's reasons for this decision, but there is evidence he was attempting to evade the command of a subpoena to appear as a witness in a pending criminal case; (3) they took with them some food, bedding and a .22 caliber rifle which defendant had borrowed; (4) they had no means of transportation, so defendant, accompanied by the young man, who was called Butch, secured the use for approximately an hour of a second-hand automobile from a sales lot; (5) they drove to a point near the base of Cook's Peak and reasonably close to an unoccupied mine shack, where they unloaded their belongings; (6) defendant and Butch returned to Deming with the automobile and made arrangements to be taken back to Cook's Peak; (7) the three of then stayed in the shack, hunted and did some target practicing with the .22 rifle; (8) they secured water from a stock tank near the base of Cook's Peak and approximately three-quarters of a mile from the shack; (9) they were there only a couple of days when the woman wished to return to Deming; (10) defendant and Butch walked to Deming to get an automobile by which to return her; (11) they were both acquainted with decedent, who lived in Deming and who had a small sports car; (12) defendant invited decedent to go hunting with them in the mountains, and decedent accepted; (13) the following morning they drove back to the shack in decedent's car, and in the afternoon decedent, defendant and Butch started for water; (14) decedent and Butch were walking a few feet ahead of defendant who was carrying the .22 rifle; (15) Butch heard a shot from the rifle and saw decedent fall; (16) Butch claimed defendant had the rifle to his shoulder and pointed at decedent as he, Butch, turned after hearing the shot; (17) defendant claims he did not intend to shoot decedent, that the gun discharged for some unknown reason, and that the homicide was an accident; (18) immediately after the shooting defendant dropped or laid the gun on the ground, looked at decedent, and decided he was dead from a shot wound in the head; (19) defendant then asked Butch to help him remove decedent's car keys, wallet and watch from decedent's body and to move the body a few feet to a fenced mine shaft into which they dropped it; (20) they immediately returned to the cabin, and defendant instructed the woman and Butch to pack things so that they could leave; (21) they left very shortly thereafter by means of decedent's automobile, and, according to Butch, defendant said they were going to Canada; (22) on more than one occasion defendant told the woman and Butch that they were as guilty as he and had better keep their mouths shut, although he did not state of what crime or crimes he considered them guilty; (23) defendant was taken into custody near Fargo, North Dakota for failing to pay a motel bill, Butch was later taken into custody in Michigan and the woman was taken into custody in Oregon.
Defendant first contends the trial court erred in instructing the jury '* * * on theory of felony-murder doctrine.'
The instructions to which objection was made were substantially in the language of our statute (§ 40A--2--1, supra) and defined murder in the first degree as all murder perpetrated (1) by any kind of wilful, deliberate and premeditated killing; or (2) in the commission of or attempt to commit any felony; or (3) by any act greatly dangerous to the life of another indicating a depraved mind regardless of human life; or (4) from a deliberate and premeditated design unlawfully and maliciously to effect the death of a human being.
The objection made to the instructions was as follows:
'* * * they do include as an element of first degree murder a homicide resulting during the commission or attempt to commit another felony, and defendant objects to this as introducing a false issue of this case because there is no evidence that at the time of the killing there was any other felony being committed or attempted to be committed at that time and there is no substantial evidence to sustain such a finding that at the time of the killing from all the evidence introduced there was any perpetrating or attempting to perpetrate at that time any other felony and that this definitely allows an implied, not just implied but gives the necessary intent for first degree murder when there is nothing in the record to sustain it. * * *'
Obviously the objection was that there was no substantial evidence to support a finding that defendant was in the act of committing or attempting to commit any felony, other than homicide, at the time of the killing. This is the only claimed error in the instructions which was urged by defendant, and is his only claim of error in the instructions upon which he may now rely. State v. Justus, 65 N.M. 195, 334 P.2d 1104 (1959), cert. denied, 365...
To continue reading
Request your trial
-
State v. Lopez
...to alert the mind of the trial court to the claimed error or errors, and that a ruling thereon then be invoked. See State v. Flowers, 83 N.M. 113, 489 P.2d 178 (1971); State v. James, 76 N.M. 376, 415 P.2d 350 (1966); State v. Roybal, 76 N.M. 337, 414 P.2d 850 (1966); State v. Heisler, 58 N......
-
State v. Corneau, 10518
...the res gestae of the felony, it occurs in the commission of the felony whether it occurs before or after the felony. State v. Flowers, 83 N.M. 113, 489 P.2d 178 (1971); State v. Martinez. A homicide is within the res gestae of the felony if it is part of a continuous transaction and closel......
-
State v. Harrison
...murder is that the homicide must be so clearly connected to the felony as to fall within the res gestae thereof. See State v. Flowers, 83 N.M. 113, 489 P.2d 178 (1971); Nelson v. Cox, 66 N.M. 397, 349 P.2d 118 (1960); State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959), cert. denied, 361 U.S.......
-
State v. Jimenez
...1953 Comp. This argument is based upon a false premise. The felony-murder statute, 40A--2--1(3), is applicable. In State v. Flowers, 83 N.M. 113, 489 P.2d 178, we '* * * we have held that if a homicide occurs within the res gestae of a felony, the gelony-murder provision of our statute is a......