State v. Garcia, 5578

• Decision Date: 25 August 1953
• Docket Number: No. 5578,5578
• Citation: 57 N.M. 665,262 P.2d 233,1951 NMSC 65
• Parties: STATE v. GARCIA.
• Court: New Mexico Supreme Court

Page 233

262 P.2d 233

57 N.M. 665

STATE v.GARCIA.

No. 5578.

Supreme Court of New Mexico.

Aug. 25, 1953.

Rehearing Denied Nov. 5, 1953.

Robert Hoath LaFollette, Albuquerque, for appellant.

Richard H. Robinson, Atty. Gen., William J. Torrington, Asst. Atty. Gen., Fred M. Standley, Asst. Atty. Gen., for appellee.

McGHEE, Justice.

The appellant was convicted of murder in the second degree and sentenced to serve a term of not less than 25 years nor more than 50 years in the penitentiary.We will hereafter refer to him as the defendant.

The killing occurred at a New Years Eve dance in the Armory at Albuquerque, New Mexico, shortly before midnight.The younger brother of the defendant and a companion had been assaulted by some other teen-agers in a suburb of Albuquerque a few days prior to New Years day, and the brother and two of his companions had engaged in a fight with a like number of boys at the Armory earlier in the evening.The younger brother had been defeated in each fight.

Immediately prior to the killing the younger brother pointed out to the defendant the ones who had whipped him.Unfortunately, Freddie Moya, who was later stabbed with a knife and killed, was then with this group on the dance floor.The defendant accosted the party and a conversation then ensued between the defendant and some of its members.The testimony is conflicting as to what was said, but the defendant testified he asked the boys why they had whipped his younger brother and that the boys accosted then said they would beat him up also and advanced upon him, some trying to get in behind him; that one or more had knives and that he got his knife out of his pocket, cut one boy who ran away, and then stabbed Freddie Moya one time.Other witnesses testified when the defendant accosted the boys he asked why they were whipping his young brother, that he had an open knife in his hand with which he immediately stabbed one Benavidez, and that he then stabbed Moya two times, once in the back and once in the chest.When the knife blade entered the chest it cut the aorta and Moya sank to the floor and died in a very short time while enroute to a hospital.

The defendant said he saw Moya sinking to the floor but turned and joined the dancers before the body reached the floor.He danced for a time after the stabbings and then left for home, throwing the knife away a short distance from the Armory where it was found and turned over to the police.The defendant was arrested shortly thereafter and on January 2nd following, he admitted the killing, identified the knife as the one he had used in the stabbing, and at the same time made certain exculpatory statements the effect of which will be discussed later.

Among other points relied upon for a reversal are the following:

a. The court erred in submitting the charges of murder in the first degree and second degree to the jury, in that the evidence shows the defendant acted without malice, upon a sudden quarrel and in the heat of passion.

b. There was not sufficient evidence to show malice, deliberation or premeditation, but that if it was proper to submit second degree, which he denied, certainly it was error to submit first degree to the jury.

As the jury only convicted the defendant of murder in the second degree, the submission of first degree was harmless as held in State v. Horton, 57 N.M. 257, 258 P.2d 371.

After a careful examination of the testimony we disagree with the contention of the defendant there was not sufficient evidence to establish murder in the second degree.We have the testimony of his anger and resentment over the whipping of his younger brother on two occasions, and the one who was killed was in the company of the assailants.The testimony shows he was angry because of the whippings administered to his younger brother when he approached the boys on the dance floor, and testimony on the part of the state shows he attacked and cut two with his knife without any present provocation.This was sufficient upon which to submit the issues of murder in the first degree and second degree to the jury, and likewise to withstand the motion of the defendant for an instructed verdict of not guilty.The trial court also submitted the issues of voluntary manslaughter and self defense, the latter issue being the one relied upon by the defendant to secure a verdict of not guilty.

The substance of the exculpatory statements which the defendant claims entitled him to a directed verdict of not guilty is that when he identified the knife and said he had stabbed Moya, he told the officers who took the statement:

'I walked up to those guys and asked them why they had beaten my brother and then they told me if I wanted them to beat me up too,'

and

'I didn't have any intention of fighting and they acted pretty rough and pulled some knives out, and I pulled my knife out, too, and there were a lot of guys backing me up, so I started after...