State v. Padilla

Decision Date08 December 1959
Docket NumberNo. 6506,6506
Citation78 A.L.R.2d 908,1959 NMSC 100,347 P.2d 312,66 N.M. 289
Parties, 78 A.L.R.2d 908 STATE of New Mexico, Plaintiff-Appellee, v. Jose Franco PADILLA, alias Joe Franco, Defendant-Appellant.
CourtNew Mexico Supreme Court

W. E. Bondurant, Jr., John P. Cusack, Jr., Roswell, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Thomas O. Olson, B. J. Baggett, Asst. Attys. Gen., for appellee.

CARMODY, Justice.

The defendant was found guilty of first degree murder, of having carnal knowledge of a child under the age of ten years, and of kidnapping. The jury not having specified life imprisonment, he was sentenced to death by execution, and it is from this judgment that he appeals.

The circumstances of the offense are not actually material as to this appeal and will be mentioned only briefly for the purpose of clarity.

The defendant is a Spanish-American who speaks and understands English fairly well but normally converses in Spanish. He was twenty-five years of age on October 6, 1957, the date of the alleged commission of the crimes charged. His education was limited to the second grade and he had worked as an itinerant farm laborer all of his life. His intelligence rating was that of a dull normal individual.

On October 5, 1957, the defendant drank beer from shortly after noon until about midnight at a bar in Roswell, New Mexico, and during this period of time bought three marijuana cigarettes and smoked at least two of them. When leaving the bar, he bought a half case of beer and then proceeded to the home of the deceased (a five-year-old child) near Roswell and took her into his car. He then drove approximately fourteen miles southeast of Roswell, at which place he raped the child and thereafter killed her by stabbing her with a screwdriver. The defendant then took a seat cover from the car, placed it over the body of the little girl and covered it with sand. Thereafter, he went to his place of residence, packed a bag, loaded a rifle, and proceeded to El Paso, Texas, in his car. At El Paso, he parked his car in a parking lot and then fled into the interior of Old Mexico where he was arrested and brought back to the American authorities on October 12, 1957. He was returned to Roswell the same day by the officers and a confession was obtained immediately thereafter.

At the trial, the defendant did not take the stand, and the actual details of the crimes are contained only in the confession and in statements made by the defendant to the expert witnesses who were examining him as to his sanity. There was certain lay testimony as to his sanity, in which was detailed past sickness of the defendant and his conduct as to fits of anger, talking to himself and having laughing spells. Two medical doctor psychiatrists were appointed by the court and testified as experts, one on behalf of the state and one on behalf of the defendant. He was also examined by another psychiatrist who is not licensed in the State of New Mexico and by a psychologist employed by the New Mexico State Hospital. There was a conflict in the testimony at the trial as to the defendant's sanity, one medical psychiatrist testifying that he was insane, the other testifying that he was sane; and there was also testimony by the non-licensed psychiatrist that he was not insane, and, in addition, testimony by the psychologist that the defendant was not insane.

The defendant relies on six points for reversal, all relating to his mental condition. These will be discussed under three separate categories.


The defendant maintains that the court should have instructed the jury that they might consider mental defects and mental condition in ascertaining whether or not the defendant had the power to deliberate the acts charged, so as to reduce the charge from first degree murder to second degree murder.

The doctrine contended for by the defendant is sometimes referred to as that of 'diminished' or 'partial responsibility.' This is actually a misnomer, and the theory may not be given an exact name. However, it means the allowing of proof of mental derangement short of insanity as evidence of lack of deliberate or premeditated design. In other words, it contemplates full responsibility, not partial, but only for the crime actually committed. This theory has been discussed at great length in many cases from varying jurisdictions and is the subject of several annotations, treatises and law review articles almost without number.

This court has never been called upon to rule upon the specific point involved, although on occasion there is language to be found in several of our opinions which might tend to influence us one way or the other. Territory v. Kennedy, 1910, 15 N.M. 556, 110 P. 854; State v. Nevares, 1932, 36 N.M. 41, 7 P.2d 933; State v. Roy, 1936, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1; State v. Moore, 1938, 42 N.M. 135, 76 P.2d 19; State v. Folk, 1952, 56 N.M. 583, 247 P.2d 165; State v. White, 1954, 58 N.M. 324, 270 P.2d 727.

The serious student of the subject will have no trouble finding a great wealth of material, not only in case law but in texts, articles and annotations. Of particular assistance, see Report of Royal Com. on Capital Punishment 130 (1949-53); Annotation, 45 A.L.R.2d 1447; Weihofen, Mental Disorder as a Criminal Defense, 174-195.

Throughout the United States, the problem has arisen in a great many jurisdictions, and it appears that at least eleven jurisdictions approve of the doctrine contended for by the defendant. These are California, Colorado, Connecticut, Indiana, Nebraska, Ohio, Rhode Island, Tennessee, Utah, Virginia and Wisconsin. Whereas at least four jurisdictions have apparently rejected the theory. These states are Arizona, Idaho, Missouri and Nevada. Several other jurisdictions, without enumerating them, have not squarely passed upon the question, although five apparently approve of the doctrine and three possibly reject it. Compare Weihofen, Mental Disorder as a Criminal Defense, 184-185. The Supreme Court of the United States in Fisher v. United States, 1946, 328 U.S. 463, 66 S.Ct. 1318, 90 L.Ed. 1382, 166 A.L.R. 1176, by a divided court, refused to express an opinion with respect to the theory contended for by the defendant here. However, in very strong dissents by Justices Frankfurter, Murphy and Rutledge, it was urged that the rule should be adopted and the logic of this reasoning has received widespread approval by many authorities.

The course of the law on insanity in England and the United States was generally set in the M'Naghten Case, 10 Clark & F. 200, 8 Eng. Reprint 718, which enunciated what is loosely called 'the right and wrong test.' Although mentioned in our prior cases, this rule was specifically approved by us in State v. Roy, supra, and State v. Moore, supra. Subsequently, in State v. White, supra, the M'Naghten rule was extended by adding to the 'right and wrong' test the additional qualification of being incapable of preventing oneself from committing the act as a result of disease of the mind.

This was the status of our decisions at the time of the trial of the instant case, and the trial judge properly instructed the jury as to the issues of insanity and the defendant makes no objection thereto. However, his instruction No. 3, which was tendered but refused by the trial court, reads as follows:

'If you find the defendant was legally sane, then the Court instructs you that as an additional defense if you find or if you have a reasonable doubt whether by reason of a disease or defect of the mind the defendant was incapable of thinking over the fatal act beforehand with a calm and reflective mind (or with a fixed and settled deliberation and coolness of mind) then, you shall find the defendant not guilty of first degree murder and will pass on to the question of whether he is guilty of second degree murder.'

The trial court also instructed the jury as to the elements of deliberation and premeditation and, in addition, gave instruction No. 23 which related to the drinking of intoxicating liquor and smoking of marijuana. This instruction advised the jury 'that if by reason of either intoxication or the use of marijuana or both, the mind of the defendant was incapable of that cool and deliberate premeditation necessary to constitute murder in the first degree, but that the killing was unlawful, necessarily it would be murder in the second degree, as malice would be implied.' This particular instruction, or one like it, has been given ever since our decision in State v. Brigance, 1926, 31 N.M. 436, 246 P. 897, and there is no question but that such an instruction was proper in the instant case. However, the question immediately arises as to why there should be a different rule and perhaps a more lenient one with respect to a user of alcohol or drugs than in the case of one who may be afflicted with a mental disease not of his own making. If alcohol or drugs can legally prevent a person from truly deliberating, then certainly a disease of the mind, which has the same effect, should be given like consideration. Compare Hopt v. People, 1881, 104 U.S. 631, 26 L.Ed. 873.

The above is actually the basic theory upon which most of the cases which approve the doctrine are based. On the contrary, those jurisdictions which refuse approval of the theory apparently take the stand that the 'right or wrong' test is all inclusive and that either a person is sane and therefore fully responsible for the consequences of his acts, including the capability to deliberate and premeditate, or is insane and not responsible. These cases take the position that there is no middle ground, or, as is expressed in some opinions and by some authorities, that the rule should be either black or white and that there may be no shades of gray in between.

It would unduly lengthen this opinion to cite or quote at length from the many cases and articles on the subject. However, among others which are directly in point, see State v....

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