State v. JONES, 5110

• Decision Date: 06 July 1948
• Docket Number: No. 5110,5110
• Parties: STATE v. JONES.
• Court: New Mexico Supreme Court

52 N.M. 235

195 P.2d 1020

STATE

v.JONES.

No. 5110.

Supreme Court of New Mexico.

July 6, 1948.

[195 P.2d 1021, 52 N.M. 235]

Caswell S. Neal, of Carlsbad, and O. O. Askren, of Roswell, for appellant.

C. C. McCulloh, Atty. Gen., and William R. Federici, Asst. Atty. Gen., for appellee.

COMPTON, Justice.

The defendant was convicted for murder in the second degree, and from the judgment and sentence he brings this appeal.

As an excuse or justification for the homicide, the defendant entered a plea ofself-defense and his first assignment of error is that the court by its instruction on the law of self-defense, merely instructed the jury on defendant's theory of the case without declaring the law of self-defense in reference to the facts relied on by him as establishing such defense.

The court instructed the jury as follows:

'A defense interposed by the defendant is that of self-defense. You are instructed that the rule of law on the subject of self-defense is this: Where a person in the lawful pursuit of his or her business, is assaulted, and when from the nature of the assault there is reasonable ground to believe that there is a design to take his or her life, or to do him or her great bodily harm, and the party attacked does so believe, then the killing of the assailant under such circumstances would be excusable or justifiable, although it should afterwards appear that no injury was intended and no reasonable danger existed. It is enough that there be an apparent danger; such an appearance as would induce a reasonable person in defendant's position to believe that he was in immediate danger of great bodily injury. Upon such appearance a party may act with safety, nor will he be held accountable though it should afterward appear that the indications were wholly fallacious, and that he was in no actual peril.'

'The rule in such case is this: What would a reasonable person, a person of ordinary caution, judgment and observation, in the position of the defendant, seeing what he saw, and knowing what he knew, suppose from this situation and these surroundings. If such reasonable person so placed would have been justified in believing himself in imminent danger, then the defendant would be justified in believing himself in such peril, and in acting upon such appearances. And in considering whether the shooting was justificable on the ground that the shooting was in self-defense, you should consider all the circumstances attending the shooting, the character of the would and the conduct of the parties at the time and immediately prior thereto, and the degree and nature of force used by the defendant in making what is claimed to be self-defense, as bearing upon the question whether the shooting was actually done in self-defense, or whether it was done in carrying out an unlawful purpose.

'But the law of self-defense does not imply the right of attack, nor will it permit acts done in retaliation or for revenge. And if you believe from the evidence, beyond a reasonable doubt, that the defendant shot the deceased for the purpose of wreaking vengeance upon him for past injuries received, or for purposes of retaliation and revenge for such past injury,then the defendant cannot avail himself of the law of self-defense, and you should not acquit on that ground. And it is for you to determine from all the evidence whether the claim of the defendant that he killed the deceased in self-defense is made in good faith or is a mere pretense.'

The defendant requested the court to supplement its instruction by giving the following: 'You are therefore instructed thatin this case, if you find from the evidence, or have a reasonable doubt thereof, that at the time of the difficulty which resulted in the death of the deceased, the deceased seized a rock and assaulted, or attempted to assault the defendant therewith, or it so reasonably or apparently appeared to the defendant, as a reasonable man under the circumstances, and that the defendant as a reasonable man believed that he was about to receive great bodily harm or injury from the deceased, and that acting upon such belief, he shot and killed the deceased, you will find the defendant not guilty.'

The tender was refused and exception taken.

It is well settled in this jurisdiction that a defendant not only is entitled to have his theory of the case submitted to the jury if supported by substantial evidence, but upon request, is entitled to have the law declared in reference to the facts of his case if there is evidence reasonably tending to substantiate it. State v. Martinez, 30 N.M. 178, 230 P. 379, 382; State v. Rogers, 31 N.M. 485, 247 P. 828; Salazar v. Garde, 35 N.M. 353, 298 P. 661; State v. Hughes, 43 N.M. 109, 86 P.2d 278.

In State v. Martinez, supra, we said [30 N.M. 178, 230 P. 382]: 'The defendant is also entitled to have instructions given at his request upon his theory of the case, and to have the law declared in reference to the facts which he contends the evidence reasonably tends to show, and to an instruction defining the law as applicable to his defense, if there is any competent evidence...