State v. Fransua, 1035

Citation510 P.2d 106,85 N.M. 173,1973 NMCA 71
Decision Date04 May 1973
Docket NumberNo. 1035,1035
Parties, 58 A.L.R.3d 656 STATE of New Mexico, Plaintiff-Appellee, v. Daniel FRANSUA, Defendant-Appellant.
CourtCourt of Appeals of New Mexico
David L. Norvell, Atty. Gen., Harvey B. Fruman, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee


Defendant was convicted by a jury on one count of aggravated battery (§ 40A--3--5, N.M.S.A.1953 (2d Repl. Vol. 6)) and sentenced to a prison term of not less than two and not more than ten years. He urges reversal of his conviction on two grounds: (1) that the victim of the battery consented to the act and that such consent frees defendant of criminal liability; and (2) that the trial court committed error by restricting voir dire of a prospective juror on the question of prejudice as to the use of alcohol and denying a challenge to that juror for cause.

We affirm.

On March 3, 1972 both defendant and the victim were in a bar in Albuquerque. Defendant had apparently been drinking heavily that day and the previous day. Sometime around 3:00 p.m. after an argument, defendant made a statement to the victim to the effect that if he (defendant) had a gun, he would shoot the victim. The victim then left the bar, went to his own automobile, removed a loaded pistol from the automobile and returned to the bar. He approached the defendant, laid the pistol the automobile and returned to the bar. on the bar and made the following there was the gun, that if he wanted to shoot me to ahead.' Defendant then picked up the pistol, put the barrel next to the victim's head and pulled the trigger, wounding him seriously.

Defendant asserts that the actions of the victim in procuring the weapon and inviting the defendant to shoot him constitutes consent to the shooting and as such is a good defense to the crime of aggravated battery. We cannot agree. It is generally conceded that a state enacts criminal statutes making certain violent acts crimes for at least two reasons: One reason is to protect the persons of its citizens; the second, however, is to prevent a breach of the public peace. State v. Seal, 76 N.M. 461, 415 P.2d 845 (1966). While we entertain little sympathy for either the victim's absurd actions or the defendant's equallyunjustified act of pulling the trigger, we will not permit the defense of consent to be raised in such cases. Whether or not the victims of crimes have so little regard for their own safety as to request injury, the public has a stronger and overriding interest in preventing and prohibiting acts such as these. We hold that consent is not a defense to the crime of aggravated battery, § 40A--3--5, supra, irrespective of whether the victim invites the act and consents to the battery. See Banovitch v. Commonwealth, 196 Va. 210, 83 S.E.2d 369 (1954), and Martin v. Commonwealth, 184 Va. 1009, 37 S.E.2d 43 (1946).

Defendant interrogated some of the prospective jurors on voir dire as to their feelings on the question of consumption of alcohol, drunkenness, and the defense of intoxication by asking:

'Do any of you have any feeling one way or another concerning people that consume a great amount of alcoholic beverages? Do any of you have any feelings if one is intoxicated and if you are required to find that the defendant had specific intent to inflict bodily harm at the time of the act, and if he were so intoxicated he were not able to form specific intent, would any feelings about over-indulgence have any effect on your findings?'

A juror named Swayze responded with the following statement:

'. . . I feel excessive use of alcohol or drugs or other elements that befuddle the minds of individuals does not release him from his acts; however, I can listen to the evidence and the court's instruction and follow the law.'

Juror Swayze when questioned further as to whether he would be prejudiced if intoxication were used as a defense to the requisite intent stated: 'Frankly, it (having a prejudice) is possible, but I would try not to let it.' Just after this exchange a juror named Grundy, who had previously been qualified, indicated that 'I feel the same way as Mr. Swayze.' When asked by defense counsel whether he would be affected or prejudiced against the defendant 'if this evidence were offered that he were intoxicated at the time and we are relying on that, in part, as a defense?', Juror Grundy responded with the statement: 'I definitely would be prejudiced. I am not saying what way.'

The trial court then asked:

'Just a second, Mr. Grundy. Let me ask you this: The fact that there was evidence of the use of alcohol and you have a particular feeling about the use of alcohol, would the fact that a person used alcohol, and this fact alone, would that so prejudice you against him you could not listen to all the other evidence and reach a fair and impartial verdict?'

To this, Juror Grundy responded with a simple and unequivocal 'No.' In response to defendant's questions, yet another prospective juror, Jones, made the following statement: 'I would like to get back on the alcohol. My feelings would not prejudice me, but if the defense is strictly based on alcohol--' Here he was interrupted by the court with the following statement and questions:

'Just a second, Mr. Jones. The court, at the proper time, will instruct you what the law of the case is. Do you feel you can follow the instruction of the court, even if you don't agree with what the law is? I am not saying what the law is. We don't know what that will be, but when I instruct the jury as to what the law is, can you follow my instructions?'

Jones answered: 'Yes, I can follow the instructions.' The trial court then denied a...

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27 cases
  • Baxter v. State
    • United States
    • Montana Supreme Court
    • December 31, 2009
    ... ...         ¶ 20 In State v. Fransua, the Court of Appeals of New Mexico held that one person's taunting invitation to "go ahead" and shoot him did not establish a valid consent defense ... Diederichs v. State Highway Commn., 89 Mont. 205, 211, 296 P. 1033, 1035 (1931). Accordingly, the command that "[t]he dignity of the human being is inviolable" must be acknowledged as the freestanding limitation it is on ... ...
  • Morris v. Brandenburg
    • United States
    • New Mexico Supreme Court
    • June 30, 2016
  • State v. Baxter
    • United States
    • Washington Court of Appeals
    • August 15, 2006
    ... ... Lenti, 44 Misc.2d 118, 253 N.Y.S.2d 9, 15 (1964); Helton v. State, 624 N.E.2d at 515 (Ind.Ct. App.1993); State v. Fransua, 85 N.M. 173, 510 P.2d 106, 58 A.L.R.3d 656 (1973)) ...         ¶ 26 Second, although Baxter analogizes the act here to ritual ... ...
  • State v. Isiah
    • United States
    • New Mexico Supreme Court
    • October 18, 1989
    ... ... Page 299 ... (1988) (trial court did not abuse its discretion by prohibiting inquiry during voir dire into issues of pure law); State v. Fransua, 85 N.M. 173, 176, 510 P.2d 106, 109 (Ct.App.1973) (no abuse of discretion in limiting voir dire on questions of prejudice with regard to alcohol ... ...
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