State v. Greenlee

• Decision Date: 15 March 1928
• Docket Number: No. 3184.,3184.
• Citation: 33 N.M. 449,269 P. 331
• Parties: STATEv.GREENLEE.
• Court: New Mexico Supreme Court

33 N.M. 449

269 P. 331

STATE

v.GREENLEE.

No. 3184.

Supreme Court of New Mexico.

March 15, 1928.Rehearing Denied July 28, 1928.

Syllabus by the Court.

Where one on trial for homicide, asked by his counsel why he fired the fatal shot, replies that he acted in self-defense, he is not entitled to an instruction, under Code 1915, § 1468, to the effect that a homicide is justified if committed upon one taken in such circumstances as reasonably to induce belief that he had just had, or was about to have, carnal intercourse with defendant's wife, though the circumstances might reasonably have induced such belief.

Manslaughter properly submitted, though state's theory is first degree murder, and defendant's theory is self-defense.

Remarks of the court, during qualification of jury, held not instructions required to be in writing.

Appeal from District Court, Chavez County; Brice, Judge.

Marshall Greenlee was convicted of voluntary manslaughter, and he appeals. Affirmed.

Manslaughter properly submitted, though state's theory is first degree murder, and defendant's theory is self-defense.

Tomlinson Fort and J. C. Gilbert, both of Roswell, for appellant.

R. C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

WATSON, J.

[1] Indicted for murder in the first degree, appellant was convicted of voluntary manslaughter for the killing of S. A. Shepherd.

Appellant, aged 30, had come from Oklahoma a few months prior to the homicide, and was engaged in highway construction near Hagerman. On March 20, 1926, he married a girl 19 years of age. As his work near Hagerman was nearly completed, and as he intended, after its completion, to go back to Oklahoma, taking his wife with him, appellant and his wife, after the marriage, maintained their residence with the wife's parents. Appellant's wife was the mother of an illegitimate child, 2 years old, of which fact appellant was aware. For some time prior to the marriage she and deceased had been sexually intimate. Their affection for each other and their illicit relations evidently continued after the girl's marriage to appellant; resulting in the homicide 2 weeks later. On one occasion after the marriage, appellant, in looking for his wife, had found her at the place of business of the deceased at Roswell. A few days succeeding the marriage deceased had taken dinner with the combined families of appellant and his father-in-law. At that time he told the father-in-law that he would kill appellant before allowing him to leave with his wife and go to Oklahoma. This was communicated to appellant, who answered, as he testifies, “I said I didn't hardly think he would; it looks like he would quit before he got that far.”

On April 30, 1926, the day of the homicide, the wife, with appellant's knowledge, had gone to Roswell. When appellant came from work, he found that his wife had not returned. After waiting for some time, he arranged with one Adams to go in search of her. Adams testified that he appeared angry with his wife, and that he said he thought she was not treating him right. Appellant testified that he didn't speak of his wife in an angry tone, and was not mad, “no more than any other man would be.” Asked: “Did you have any suspicion of any wrongdoing on the part of your wife,” he answered: “Well, I had a little suspicion, but I didn't have it that way; no sir.”

Proceeding from Hagerman toward Roswell in Adams' car, appellant met his own car, in which his wife had left for Roswell. Stopping it, he found it occupied by his wife's sister and others, and was informed that his wife and the deceased were following in the car of the deceased, and had instructed those in appellant's car to wait for them at a corner west of Dexter. Both cars then proceeded to that place, and waited for the deceased to appear, as he did, perhaps 30 minutes later. According to appellant's testimony, when the deceased stopped his car, appellant stepped up to it, found his wife seated in the lap of the deceased, with one of her arms around his neck; the deceased having one of his hands under appellant's wife's clothing. He testified:

“Some one says, ‘There's Speck’ (meaning appellant), and I seen him throw his hand down at the side that way (indicating) like he was going after a gun or something, and he pushed her off his lap at the same time.” “I opened the door and reached in and got her.” “Just as soon as she got out of the way, I shot.”

“Question: Now, why did you shoot this man? Answer: I shot him because I knew he was going to kill me from the movements he made, if I didn't.”

There was evidence to the effect that while waiting for Shepherd to come up appellant said, in substance, that this was not the first time that deceased had been with his wife, and that this time one of them would not go back.

It is here urged that the court erred in refusing the following tender of proof:

“The defendant at this time offers and tenders to prove by the witness now on the stand (appellant's wife) that at the place testified to where they stopped (after leaving Roswell and before meeting appellant on the occasion in question), at this old oil well, there was an act of intercourse took place between the deceased, S. A. Shepherd, and this witness. We also offer to prove by this witness that, at the time that she drove up with the deceased at the back end of the car that the state has proved had stopped at the crossroads, and where the defendant was, that at that time she was sitting on the lap of the deceased with her arms around his neck, and that he had his right hand under her dress, and on the vulva or private parts of the witness, and that the hand of the deceased was there when he made the statement, ‘There is Speck!’ meaning her husband, and at the same time the husband reached the door of the car. And we offer this testimony at this time with the statement to the court that it will be connected up by this defendant's testimony that he seen that act, and also that the act of loving and embracing and kissing by the deceased and this witness was an act of lewdness which the defendant saw, and it is offered under the justifiable defense clause of our statute, and also offered for the further reason that at this time, under section 1468, that, when murder is justifiable, that is, when one person kills another who is in the act of having carnal knowledge of such person's legal wife shall be deemed justifiable, those in themselves are acts of having carnal knowledge of the wife of this defendant, and we offer to prove them at this time, and not only that we will offer to prove by this witness that it was an understanding between herself and the deceased that the car that was leading them was to be sent away from where it was, and they would immediately engage in other acts again, that is, the actual commission of the intercourse, one with the other, and it is the contention of the defense the whole thing was an act of illicit intercourse with the deceased and the wife of this defendant, and that he seen these acts, and brings it within the statutes, and that is only two of the defenses we have.”

All of the testimony thus offered was admitted, except the facts of intercourse and of intention to resume it.

Appellant seeks to justify the homicide on three grounds: First, self-defense; second, the provisions of Code of 1915, § 1468; and, third, the provisions of Code of 1915, § 1471. It is claimed that the rejected evidence had a material bearing on each of these defenses.

It is urged that the deceased, meeting appellant immediately after having engaged in intercourse with his wife, would naturally be affected by the fact, and that it should have gone to the jury, as one likely to affect the state of mind the deceased, and as an aid to them in determining which was the aggressor, and that the fact, although unknown to appellant, was material upon the same principle that uncommunicated threats are material. We need not pass upon the merits of this contention. By his tender appellant made plain the purposes for which he considered the evidence material. He made no such contention then. Indeed, so far as the record discloses, there was nothing at the time of the ruling to advise the trial court that appellant's justification would be self-defense.

Code 1915, § 1468, provides as follows:

“Any person who kills another who is in the act of having carnal knowledge of such person's legal wife shall be deemed justifiable; provided, that said husband and wife are not living separate but together as man and wife.”

By the tender above set forth, and by a requested charge, appellant raised the question of his right to justify under that section. Its language is definite and limited. Yet counsel contend that its intent and purport are much broader; that it provides justification for homicide during the whole period between the meeting of the parties for the purpose and their separation after its accomplishment. It is argued that, if limited to the very act, the statute can, for obvious reasons, be rarely invoked. Remembering, however, that it in effect licenses homicide, it will be no objection to say that the authority is a narrow one.

Appellant relies upon a line of decisions in Texas, whch has a somewhat similar statute; the leading case being Price v. State, 18 Tex. App. 474, 51 Am. Rep. 322. See, also, Morrison v. State, 39 Tex. Cr. 519, 47 S. W. 369; Giles v. State, 43 Tex. Cr. 561, 67 S. W. 411; Dewberry v. State (Tex. Cr. App.) 74 S. W. 307; Gregory v. State, 50 Tex. Cr. 73, 94 S. W. 1041; Williams v. State, 70 Tex. Cr. 275, 156 S. W. 938; Cook v. State, 71 Tex. Cr. 532, 160 S. W. 465; Id., 78 Tex. Cr. R. 116, 180 S. W. 254. It is contended that these cases establish the rule that the accused is entitled to have his claim of justification submitted to the jury where the parties are taken in such circumstances as reasonably to indicate that they have just committed, or are about to...