State v. Middleton.

• Decision Date: 28 August 1920
• Docket Number: No. 2312.,2312.
• Citation: 192 P. 483,26 N.M. 353
• Court: New Mexico Supreme Court
• Parties: STATEv.MIDDLETON.

26 N.M. 353

192 P. 483

STATE

v.MIDDLETON.

No. 2312.

Supreme Court of New Mexico.

Aug. 28, 1920.

Syllabus by the Court.

Evidence that the deceased procured a warrant and went with a party to the home of the defendant with the ostensible purpose of arresting him is admissible, as tending to characterize his attitude toward the defendant at the time of the homicide and to account for his presence there, although the warrant may have been illegal and may have furnished no protection to the officer.

Where the legality of a warrant, under which deceased purported to act, is questioned, it is a matter of law for the court to determine; and, although the evidence of the warrant may be admissible for some purposes, the jury should be instructed as to the purposes for which the evidence is admissible, and should be instructed that the warrant is illegal if such be the law.

Where the defendant is ignorant that an attempted arrest of him is to be made, his action in killing the officer is to be viewed as in any other case, and an instruction to the effect that, as the deceased had no right to arrest by reason of the illegality of the warrant, the defendant could not be convicted of an offense greater than manslaughter, was properly refused.

Appeal from District Court, Guadalupe County; Leahy, Judge.

John B. Middleton was convicted of murder in the first degree, and he appeals. Reversed and remanded.

Where the legality of a warrant, under which deceased purported to act, is question, it is a matter of law for the court to determine; and, although the evidence of the warrant may be admissible for some purposes, the jury should be instructed as to the purposes for which the evidence is admissible, and should be instructed that the warrant is illegal if such be the law.

E. R. Wright and O. A. Larrazolo, both of Santa Fé, and W. T. Brothers, of Santa Rosa, for appellant.

O. O. Askren, Atty. Gen., for the State.

PARKER, C. J.

John B. Middleton was convicted in the district court of Guadalupe county of murder in the first degree for the killing of one Francisco Serna.

The prosecution offered evidence tending to show that on the day before the homicide, Jose Gallegos went before Nicanor Lopez, justice of the peace in the precinct in which appellant lived, and attempted to swear to a complaint, which, the prosecution contended, charged the appellant with the larceny of a calf from Gallegos; thereupon a paper, which the prosecution claimed to be a warrant, was issued and placed in the hands of Gallegos, with instructions from the justice of the peace to deliver the same to a certain constable; that Gallegos went to the constable, who refused to serve the warrant on the ground that he was no longer a constable of said precinct in Guadalupe county, by reason of the fact that the new county of De Baca had been created, and that the county line between Guadalupe and De Baca placed him, the constable, in De Baca county; that thereupon Gallegos, at the instance of the justice of the peace, delivered the warrant to the one Moises Barela, a private citizen who resided in said precinct; that Barela requested and attempted by word of mouth to deputize Francisco Serna and Alvaro Lopez to go with him to the home of appellant for the purpose of making the arrest; that Barela, Serna, and Lopez rode up to the Middleton house, where they dismounted; that Serna remained with the horses while Barela and Lopez went to the house to make the arrest; that when Barela arrived in front of the door of appellant, without any warning to, or altercation with, Barela, appellant shot Barela down; that at the time he was shot he had only a paper in his hand; that when Lopez saw Barela fall he ran back to the fence where the horses were; that two of the horses became frightened and ran away, and while Serna was standing by the fence he was shot through the arm by appellant; that Serna got on a horse behind Lopez, and the two started away, and after having ridden some 70 yards appellant shot Serna through the body with a rifle; that Barela died instantly, at the place where he was shot, near appellant's house, and Serna was carried on the horse a mile or so away by Lopez, who then laid him on the ground, and he there died in a short time; that Lopez and Barela, at the time they went to the Middleton house, were armed with guns, and after the shooting Barela was found by the coroner near the house, with a pistol near his right hand, which contained three empty cartridges.

The defense offered testimony tending to show that on the day before the homicide Gallegos, Barela, Lopez, and Serna went to the Middleton premises in search of a calf claimed by Gallegos; that after riding through the pasture they came back by the Middleton house during the absence of appellant, and told Mrs. Middleton that they had found a calf which belonged to Gallegos, and that it had been misbranded by appellant, and that they intended to return the next day and kill appellant; that this threat, prior to the time of the homicide, had been communicated to appellant, and the following day Middleton, with his two brothers, were in the house when Barela and his two companions rode up to the fence; that the three men dismounted, and Barela and Lopez started toward the house, and Barela met Mrs. Middleton as she went from the living room to the kitchen, which were separated from each other, and Barela asked her where appellant was; that she said he was in the living room, and Barela called to Middleton, using a vile name, and said he had come to kill him; Middleton stepped out of the door, and Barela immediately fired at him with his pistol; that appellant then stepped back into the room, got his rifle, went to the door, was fired upon again by Barela, whereupon he shot Barela; that in the meantime Lopez had returned to the fence where his companion, Serna, was; that Serna thereupon shot at appellant with a rifle, and appellant fired at him twice, whereupon Lopez and Serna both mounted one horse and rode away.

The state proceeded, from their opening statement to the jury to the conclusion, on the theory that Barela was a special officer, legally appointed as such, and that he and his two companions were attempting to legally arrest the appellant at the time of the homicide. There was no claim on the part of the defense that appellant knew or even suspected that Barela and his companions had come for the purpose of arresting him, with a legal warrant or otherwise. On the contrary, from the record in the case, it was contended by the defendant that the three men had come there to murder him, and that he acted only in self-defense. The appellant objected to the introduction of all the testimony concerning the making of the complaint, the issuance of the warrant, and the introduction of the complaint on the ground that it did not state any offense, all of which objections were overruled by the trial court, and all of such evidence stood before the jury for their consideration.

The complaint upon which the process was issued did not charge an offense. The warrant was not produced in evidence, and there was no testimony as to its contents, and the prosecution did not establish that the warrant was fair on its face, and it was conclusively shown that there was no indorsement on the back of the warrant, authorizing and empowering Barela, or any other private person, to execute the same. At the conclusion of the taking of the testimony, the defense, by tendered instruction No. 3, requested the court to instruct as a matter of law that the attempted arrest was illegal; and by tendered instruction No. 7 requested the court to instruct the jury, in substance, that by reason of the illegality of the attempted arrest the defendant could be found guilty of no greater offense than manslaughter, unless there was express malice, etc.

The trial court refused these two instructions, but did give two instructions on the subject of the right to arrest without declaring as a matter of law whether the attempted arrest was legal or illegal. The trial court also gave the ordinary instructions on self-defense.

After oral argument, on first blush, we were of the opinion this cause would require a complete review of the law of homicide in the resistance of an attempted illegal arrest. However, after reviewing the record and briefs, we have concluded that it is only necessary to determine three propositions for the purposes of this opinion and a retrial of the case:

First. Was the testimony objected to by appellant concerning the purported complaint, the issuance of the warrant, and the placing of the same in the hands of Barela for execution, and his attempt to deputize Lopez and Serna, admissible in the case for any purpose?

Second. Should the court have instructed the jury as a matter of law that Barela. Serna, and Lopez had no right to attempt to execute any process, and that the attempted arrest was illegal, as requested by appellant's tendered instruction No. 3?

Third. Should appellant's requested instruction No. 7 have been given, wherein appellant requested the court to instruct the jury as a matter of law that appellant in any event could be convicted of no higher degree of homicide than manslaughter by reason of the attempted illegal arrest, unless there was express malice shown?

[1] The first proposition we answer in the affirmative. Such evidence was admissible, so that the court might ascertain, as a matter of law, whether the attempted arrest was legal or illegal. It was also admissible for the purpose of tending to show the state of mind of Barela, Serna, and Lopez at the time of the homicide, and such testimony showed the purpose of their going to the scene of the homicide, and it characterized their acts at the time of the difficulty, and threw light upon the proposition as to who was the aggressor. All of this the jury should have known, so they might weigh and consider...