State v. Nichols.

• Decision Date: 31 March 1930
• Docket Number: No. 3407.,3407.
• Citation: 34 N.M. 639,288 P. 407
• Parties: STATEv.NICHOLS.
• Court: New Mexico Supreme Court

34 N.M. 639

288 P. 407

STATE

v.NICHOLS.

No. 3407.

Supreme Court of New Mexico.

March 31, 1930.

Syllabus by the Court.

Under section 35-305, 1929 Comp., the unlawful act must be the proximate cause of the unlawful killing to constitute involuntary manslaughter.

Appeal from District Court, San Miguel County; Armijo, Judge.

Douglas B. Nichols was convicted of involuntary manslaughter, and he appeals.

Reversed and remanded, with directions.

To constitute involuntary manslaughter, unlawful act must be proximate cause of homicide. Comp.St.1929, § 35-305.

William H. Burnett, of Amarillo, Tex., and C. N. Higgins, of East Las Vegas, for appellant.

M. A. Otero, Jr., Atty. Gen., and E. C. Warfel, Asst. Atty. Gen., for the State.

CATRON, J.

From a verdict of guilty of involuntary manslaughter and sentence of not less than nine nor more than ten years, defendant appeals.

Defendant was charged with murder in the first degree. The court submitted instructions and verdicts on murder in the first degree, second degree, and involuntary manslaughter. The information alleges that the homicide resulted from the discharge of a pistol by defendant, had and held in his hands, against and upon Zenon Gurule, thereby inflicting upon deceased a mortal wound, of which he died.

The record before us discloses that the issue of involuntary manslaughter was submitted to the jury upon the theory that the defendant, in carrying a deadly weapon at the time of the homicide, was committing an unlawful act not amounting to felony.

Although appellant has presented several grounds for reversal, it will only be necessary to consider one in disposing of this case; that is, whether, to support involuntary manslaughter, the unlawful act must be the proximate cause of the homicide.

The material undisputed facts essential to this question are: On the evening of August 21, 1927, defendant attended a public dance at the village of Sapello, San Miguel county, N. M.; at such time appellant was carrying a loaded revolver in his inside coat pocket; while dancing the revolver in some manner worked up and fell from his pocket to the floor, discharging, the bullet therefrom striking and killing Zenon Gurule.

Appellant contends that the homicide was the result of a mere accident, and that the unlawful act of carrying a deadly weapon was not the proximate cause thereof; that therefore there is no evidence whatever in the record to support the verdict, and that same is contrary to law.

Appellee contends that defendant in carrying a loaded revolver was committing an unlawful act, and that death resulting while committing such unlawful act is under our statute involuntary manslaughter, whether the unlawful act be the proximate cause or not.

Section 35-305, 1929 Comp., is as follows: “Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: 1st. Voluntary: Upon a sudden quarrel or in the heat of passion. 2nd. Involuntary: In the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.”

It would, in our opinion, be ridiculous to say that any accidental killing resulting indirectly or remotely while committing an unlawful act is involuntary manslaughter. Our statutes make it unlawful for a person to drive an automobile without a red tail-light or without first having obtained a license. If, while committing such an unlawful act alone, a person is accidently and unavoidably run over and killed, the unlawful act could have no bearing whatsoever upon the killing. Would any one contend that the driver be guilty of involuntary manslaughter? Our statutes also make the carrying of a deadly weapon an unlawful act. What has the mere carrying of the deadly weapon to do with the unlawful killing of a person with said weapon? The mere carrying of the weapon unaccompanied by some other act or factor could not result in death. It is our opinion that our statute contemplates that the unlawful act must be the proximate cause of the homicide. In this view we are almost uniformlly supported by text-writers and decisions throughout the United States.

In 29 C. J. (Homicide) § 136, we find the following text: “Where those circumstances are absent which will characterize an unintentional killing as murder, it is manslaughter at common law and under statutes declaratory thereof where one unintentionally kills another in doing an...