State v. Martinez

Decision Date25 October 1924
Docket Number2804.
Citation230 P. 379,30 N.M. 178,1924 -NMSC- 075
CourtNew Mexico Supreme Court

Syllabus by the Court.

The instructions of the court to the jury in a criminal case should cover the whole case; and a defendant, upon proper written request, is entitled to have an instruction given upon his theory of the case, and to have the law declared in reference to the facts which he contends establish such defense, when there is any competent evidence reasonably tending to support such facts.

Where on a trial for homicide, the defendant, a woman, claims that she killed the deceased to protect herself from an attempted rape and from an assault with intent to commit such rape, and presents proper written requests to the court to apply the law of justifiable homicide to the facts constituting such defense as testified to by her, it is the duty of the court to give such requested charges, or equivalent ones in language of his own choosing; and it is not sufficient merely to charge in general terms the law of justifiable homicide as applicable to the defense of one's person from death or great personal injury without any further reference to the nature of such apprehended injury.

The admission in evidence of a purported confession of a defendant is to be determined by the fact of whether the same was made freely and without hope of benefit to his case; and when such confession is offered the trial judge should, in the absence of the jury, inquire into the circumstances under which the confession was alleged to have been made and determine from such evidence whether or not such confession was in fact voluntary, before admitting the same in evidence.

Additional Syllabus by Editorial Staff.

Accused is entitled to instruction on self-defense even though supporting evidence slight, or where sustained by his own testimony only.

"Assault" is an attempt to commit a violent injury on the person of another.

The resulting battery is not a necessary constituent element of the offense of assault.

Appeal from District Court, Taos County; Leib, Judge.

Hilaria Martinez was convicted of voluntary manslaughter, and she appeals. Reversed and remanded.

H. A Kiker and H. L. Bickley, both of Raton, for appellant.

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


Hilaria Martinez was indicted in Taos county for the murder of Andres Lopez, and upon the trial was found guilty of voluntary manslaughter. This appeal is from the judgment and sentence entered upon the verdict so returned.

The evidence for the state tended to show that the deceased, shortly after noon on February 16, 1921, was proceeding by a trail leading from the place where he was staying, to a cabin which he was building, some distance away, and near the home of the defendant and her husband, with his axe on his shoulder, accompanied by his little son eight years old; that he met the defendant, Hilaria Martinez, washing near a mill between the hill upon which the deceased was staying and the hill upon which she and her family resided; that the defendant said to the deceased, "You have gotten me into trouble," and deceased asked her, "Who told you?" and on being informed that "Aloyho" had informed her, deceased said, "Aloyho is a liar, and you are a liar"; that the defendant thereupon said, "Get away from here," and deceased said, "Well, I will get away," and started away, when defendant fired twice at him with a 22-caliber rifle, one bullet striking him in the back of the head; that the deceased fell forward and threw his axe in front of him.

The evidence of the defendant tended to show that she was a married woman living with her husband; that the deceased had, in December, 1920, purchased a plot of ground from her husband near their home, upon which he was building a dwelling house; that some time in January, 1921, deceased came to her house, during her husband's absence, at the noon hour, about the time of their noonday meal, and at her invitation ate dinner with the defendant and her family; that after dinner deceased made an effort to grab defendant, and she went out of the house and told him to go away, and that she was going to tell her husband; that the deceased left the premises, and on the following day returned shortly after she had finished her noonday meal, while she was washing dishes, her husband being still absent; that the house of defendant consisted of a kitchen and bedroom, she being in the kitchen; that deceased grabbed her and tried to take her to the room, and she got away from him and started to take a rifle and told him that if he did not get away she would fire, whereupon he left; that her husband returned that night, and she told him what had occurred; that the deceased, shortly thereafter, returned to her premises while her husband was at home to get a wagon which he had left, and that her husband, in the presence of a neighbor, asked the deceased why he was bothering defendant, and told him to get away from the house, and that he did not want him at his house any more, and not to come within his property or his wife's friendship; that deceased did not afterwards return to her house, but, while working on his little house a short distance away, would wave at her and whistle to her when he saw her; that he only did this while her husband was away and while she was alone; that on the 16th day of February, during her husband's absence from home, she, in company with her children, went to the mill about 9 o'clock to do her washing and took a rifle with her to protect herself from the deceased; that at the noon hour, she and her children went to her house for dinner, taking the rifle with her, and about 1 o'clock returned to her washing at the mill, again accompanied by her children and carrying the rifle; that shortly thereafter the deceased came up behind her, while she was rubbing clothes and the first she knew of his presence was that he put his arm around her and hugged her; that she got away and told him to get away, and that he said he would not do so; that she jumped and took the rifle and again directed him to leave, and he told her he would not, but raised his axe in a threatening position, and when she saw him with the axe she again told him to get away, and again he said he would not, and she fired without placing her rifle to her shoulder; that he was facing her when she fired the first time, but she does not know what his position was when she fired the second shot, because she "was in anger and in fear at the same time"; that she shot rapidly, and after the second shot he was lying down, and she went and reported to the justice of the peace what had happened; that the justice of the peace told her to go home, and she did so; that she had no conversation with the deceased until he grabbed her.

1. The first error assigned by the defendant is the refusal of the court to give to the jury the following requested instruction:
"You are instructed the defense of one's person may, in the case of a woman, as well include the protection of her chastity as her body from injury of any other kind; and if a woman be attacked under certain circumstances, as viewed from her standpoint at the time of said attack, as will lead her to reasonably apprehend that said attack would result in the sexual abuse of her person, then such woman would be justified in using such force as necessary, even to the extent of taking the life of her assailant, to protect her honor and chastity and her body from sexual abuse."

The instructions given by the court covering the question of self-defense were as follows:

"In this cause the defendant sets up the ground of self-defense. Under the laws of this state homicide is justifiable when committed in the lawful defense of one's own person, when the person assaulted shall have reasonable ground to apprehend a design upon the part of her assailant to kill her or to do her some great personal injury, and there shall be imminent danger of such design being accomplished.
If you believe from the evidence, to the extent of raising in your mind a reasonable doubt of the defendant's guilt, that at the time the defendant shot the deceased, the deceased was attempting to kill the defendant or to do her some great personal injury, or that the defendant had reasonable grounds to apprehend, and did apprehend, that the deceased was then and there about to kill her or to do her some great personal injury, and that the defendant had reasonable grounds to believe and did believe that the danger of death or great personal injury being inflicted upon her by the defendant was then and there imminent and impending, and that the defendant had reasonable cause to believe and did believe that it was necessary for her to shoot the defendant in order to avoid such impending danger to her, you will then find the defendant not guilty."

The defendant excepted to the refusal of the court to give the requested instruction, "for the reason that the same explains to the jury the meaning of the term 'great personal injury' as used by the court in his instructions and as applied under the evidence in this case, in that the same shows to the jury that the right of protection extends to, or the right to kill if necessary to protect the chastity of a woman," and because the court nowhere in his charge gives an instruction covering that subject, and the evidence requires such instruction. The exception urged to the instruction given is that "the same limits the right of self-defense to reasonable apprehension on the part of the defendant of death or great personal injury at the hands of the deceased, without defining or attempting to define to the jury what may be meant by the term...

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