State v. Luttrell.

• Decision Date: 06 February 1923
• Docket Number: No. 2766.,2766.
• Citation: 212 P. 739,28 N.M. 393
• Parties: STATEv.LUTTRELL.
• Court: New Mexico Supreme Court

28 N.M. 393

212 P. 739

STATE

v.LUTTRELL.

No. 2766.

Supreme Court of New Mexico.

Feb. 6, 1923.

Syllabus by the Court.

Upon the trial of a homicide case, where a defendant testifies that at the time he shot and killed the deceased he was cool and calm, and was by nature so disposed, and that he committed said act solely to protect himself against a threatened attack on the part of the deceased, it is not error to refuse to submit to the jury the subject of voluntary manslaughter.

A motion for new trial on account of newly discovered evidence is properly denied, unless such evidence meets the following requirements: (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be merely impeaching or contradictory to the former evidence.

Assignments of error not pursued and discussed in the briefs will be deemed to be waived or abandoned.

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

Paschal Luttrell was convicted of murder in the second degree, and he appeals. Affirmed.

In a prosecution for murder, where accused testifies that at the time he shot and killed deceased he was cool and calm, and was by nature so disposed, and that he committed the act solely to protect himself against a threatened attack on the part of the deceased, it is not error to refuse to submit to the jury the issue of voluntary manslaughter as defined in Code 1915, § 1460.

Geo. W. Prichard, of Santa Fé, for appellant.

H. S. Bowman, Atty Gen. (Moore & Smith, of El Paso, Tex., of counsel), for the State.

BRATTON, J.

Appellant was charged by indictment with the murder of James W. Gillispie. He was convicted of murder in the second degree, and, after motion for a new trial had been denied, was sentenced to serve not less than 20 nor more than 25 years in the penitentiary, from which judgment and sentence this appeal has been perfected.

[1] By the first error assigned, appellant complains of the failure of the trial court to submit to the jury the subject of voluntary manslaughter. A determination of this question necessitates a brief review of the evidence submitted. It was contended by the state that appellant and deceased met in the town of Corona on the morning of the fatal difficulty; that they engaged in conversation, and during the same sat down together on the porch of the post office building, appellant sitting to the right of the deceased; that during that morning and prior to the time deceased arrived in said town, appellant had carried his pistol on his right side; that about the time deceased reached said town appellant changed said pistol, placing it on his left side; that while the two were so seated and conversing, and without deceased having changed his position by rising or otherwise, appellant drew his pistol, reached over his left shoulder, and, with the barrel of said pistol within 6 or 12 inches of the face of deceased, shot him, the bullet piercing the right side of the bridge of the nose, almost between the eyes; that deceased fell, and appellant started walking away, when Dr. Stone, who was among the first to reach the scene of the trouble, called him, and asked who had done the shooting, whereupon appellant said that he had, and that, if it were to do over, he would do the same thing. On the other hand, it was contended by appellant that on Thursday before the difficulty, which occurred on Saturday, deceased came to his home during his absence and there insulted his wife, but had no illicit relations with her; that on Friday afternoon appellant met deceased in the post office in Corona, and immediately deceased reached for his hip pocket, indicating that he intended to draw a pistol, and then asked appellant if he had done anything improper while at appellant's home the day before; that, his suspicion being thus aroused, that night after retiring, appellant raised the subject with his wife, who then told him of such conduct on the part of the deceased; that the following morning, being the day of the difficulty, appellant went to the town of Corona to transact some business and, while there, met the deceased; that appellant at once told deceased he wanted to talk with him; that about the time they sat down on the porch of the post office building the deceased drew his knife from his pocket, opened it and began blading it between his fingers; that just after they sat down appellant asked deceased about his conduct towards appellant's wife, and told him never to come to his premises again; that deceased arose, and in a threatening manner, with said knife in his hand, advanced upon appellant, and while so doing cursed him and told appellant he would kill him if anything further was said upon the subject; that app...