State v. Hunt

• Decision Date: 22 December 1924
• Docket Number: No. 2901.,2901.
• Citation: 30 N.M. 273,231 P. 703
• Parties: STATEv.HUNT et al.
• Court: New Mexico Supreme Court

30 N.M. 273

231 P. 703

STATE

v.HUNT et al.

No. 2901.

Supreme Court of New Mexico.

Dec. 22, 1924.

Syllabus by the Court.

It is error, requiring reversal, to submit to the jury a degree of unlawful homicide not within the proofs, and over the objection of the defendant.

Appeal from District Court, Hidalgo County; Ed Mechem, Judge.

Samuel L. Hunt and Joseph S. Hunt were convicted of voluntary manslaughter, and they appeal. Reversed and remanded, with directions to discharge defendants.

It is error requiring reversal, to submit to the jury a degree of unlawful homicide not within the proofs, and over the objection of the defendant.

Percy Wilson and W. B. Walton, both of Silver City, and Clifton Mathews, of Globe, Ariz., for appellants.

Milton J. Helmick, Atty. Gen., and John W. Armstrong, Asst. Atty. Gen., for the State.

PARKER, C. J.

This case was before this court once before, and was reversed for considerations not pertinent to this inquiry. See State v. Hunt, 26 N. M. 160, 189 P. 1111. Over the objection of appellants, the court in this trial submitted to the jury the question of guilt of appellants of voluntary manslaughter. The trial resulted in a conviction of voluntary manslaughter, and this is the sole question presented for review. The facts in the case are, briefly stated: That on the morning of September 13, 1917, the deceased left his homestead on horseback to go to the Hunt place, some four or five miles distant, where appellants and their brother, Jack P. Hunt, lived with their parents and sister. When the deceased left his home, he had with him a 30-30 Winchester rifle, which he carried in a scabbard on the right-hand side of his saddle. He was riding along a trail which led through rocks and bushes to the point where his body was afterwards found. His body showed numerous bullet wounds, which were the cause of his death. On the morning of the said September 13, 1917, the appellants, together with their brother, Jack P. Hunt, started out to drive some cattle from the Hunt place to what is called the Blair place, for the purpose of taking the cattle to a watering place situated on the Blair place. The Hunts were all armed with rifles and pistols. In so driving the cattle, they drove them along the same trail upon which the deceased was traveling toward them. At the point where they met the deceased, the trail divided, and one branch went around either side of a clump of bushes, through or beyond which the appellants could not see a man on horseback. Just prior to reaching the clump of bushes, some of the cattle which they were driving left the trail, and the brother, Jack P. Hunt, left the trail to go after and return the cattle, and he was not present at the killing. One of the appellants passed to the right and the other to the left of the clump of bushes, and upon arriving at the farther side of the bushes they saw the deceased sitting on his horse, his horse standing still, the deceased holding the bridle reins in his left hand and attempting with his right hand to take his Winchester out of the scabbard in which he was carring the same. The gun hung in the scabbard, and the deceased was never able to get the gun more than halfway out of the scabbard. Not a word was spoken by any of the three parties. Upon seeing the deceased drawing his Winchester from the scabbard, the two appellants opened fire upon him with pistols, discharging several shots, and keeping on firing until the deceased began to fall from his horse to the ground, where he instantly died. Jack P. Hunt, upon hearing the shots, came to the spot, and the three Hunts left together; Jack Hunt going at once to the justice of the peace and announcing the killing, and the two appellants going to or near the Hunt place, where they surrendered themselves to the justice of the peace. The Hunts...