State v. Pruett.

• Decision Date: 23 December 1921
• Docket Number: No. 2447.,2447.
• Parties: STATEv.PRUETT.
• Court: New Mexico Supreme Court

27 N.M. 576

203 P. 840

STATE

v.PRUETT.

No. 2447.

Supreme Court of New Mexico.

Dec. 23, 1921.

Syllabus by the Court.

Involuntary manslaughter, as defined by section 1460, Code 1915, is confined to cases where the killing is unintentional.

It is reversible error to submit the issue of involuntary manslaughter where all of the evidence and all of the inferences therefrom show that the killing was intentional.

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

James C. Pruett was convicted of involuntary manslaughter, and he appeals. Reversed and remanded, with directions.

It is reversible error to submit the issue of involuntary manslaughter where all of the evidence and all of the inferences therefrom show that the killing was intentional.

Theodore Pruett, of Anadarko, Okl., and O. P. Easterwood, of Clayton, for appellant.

O. O. Askren, Atty. Gen., for the State.Percy Wilson and W. B. Walton, both of Silver City, and Clifton Mathews, of Globe, Ariz., amici curiæ.

PARKER, J.

This case has been twice before this court on appeal. See 22 N. M. 223, 160 Pac. 362, L. R. A. 1918A, 656; 24 N. M. 68, 172 Pac. 1044. The conviction each time was for voluntary manslaughter. Appellant was put on trial a third time, was convicted of involuntary manslaughter and sentenced, and has brought this appeal.

[1] 1. The first question to be considered is whether there is any evidence authorizing a conviction of involuntary manslaughter. The evidence for the state is entirely circumstantial, the appellant being the only eye witness testifying to the immediate circumstances. The theory of the prosecution was that appellant waylaid deceased and shot him from ambush, while appellant claimed he was out hunting rabbits with a rifle and accidentally met the deceased in a public road. He says the deceased approached him on horseback and threatened to kill him then and there, and made an effort to draw his rifle from a scabbard on the saddle; that appellant then fired his rifle, but missed deceased; that the shot frightened the horse, causing him to turn; that deceased straightened up the horse, had gotten the gun out of the scabbard and up to his shoulder in firing position, and was in the act of firing when appellant fired the fatal shot; that deceased then fell from the horse; that appellant fired in self-defense. There is nothing in the whole case to indicate, and no fact is shown from which the inference could be drawn, that the killing was done negligently or accidentally, or otherwise than intentionally. Attorney General Askren, who filed the brief for the state, so agrees.

Our statute 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.” Section 1460, Code 1915.

The act of killing the deceased by intentionally shooting him with a rifle could not be said to be a killing “in the commission of an unlawful act not amounting to a felony,” under the first clause of the statute, as, if the act was not justified by the law of self-defense, it would constitute at least an assault with a deadly weapon and would be felony under section 1704, Code 1915. Under the same conditions the same act would not fall within the terms of the second clause of the statute, because the act of appellant, unless justified by the circumstances, would not be lawful. The words “in an unlawful manner, or without due caution and circumspection” necessarily refer, not to the quality of the act itself, but to the manner of doing it. The meaning of the words in the last clause of the statute, therefore, necessarily excludes all cases of intentional killing, and include only unintentional killings by acts unlawful, but not felonious, or lawful, but done in an unlawful manner, or without due caution and circumspection. In other words, the killing must be unintentional to constitute involuntary manslaughter, and, if it is intentional and not justifiable, it belongs in some one of the classes of unlawful homicide of a higher degree than involuntary manslaughter. We do not deem it necessary to cite authority in detail from other jurisdictions on similar statutes, but it will be sufficient to say that it seems to be uniformly held that an intentional killing is never deemed to constitute involuntary manslaughter. See 1 Michie on Hom. § 34, where many cases are collected and commented upon. See, also, 13 R. C. L. “Homicide,” §§ 88 and 89.

[2] 2. The only theory upon which this conviction can be sustained is that a defendant cannot complain of the submission of a false issue to the jury when the result is to convict him of a lesser offense than the one of which he is shown by the evidence to be guilty, for the reason that it is error in his favor. The absurdity of such a theory is at once apparent upon examination. A controlling consideration must be overlooked in order to sustain such a theory, and that is that a conviction of a lesser degree of homicide is an acquittal of all higher degrees. When, therefore, a verdict comes in convicting of involuntary manslaughter, the defendant stands acquitted of all higher degrees of the crime. He is not, and cannot be, any longer guilty, in a legal sense, of any of the higher degrees of the crime. The district court and this court in order to sustain the conviction in such a case must shut eyes to this consideration, and must say that, although the defendant is not legally guilty of the higher crime, he is so guilty in fact, and is not therefore in position to complain when he receives less punishment than he deserves. Such a proposition is so illogical and so contrary to the fundamental principles of jurisprudence as to have met with only slight favor or recognition by the courts, and the overwhelming weight of authority is against it. A few states only seem to be committed to the doctrine. Thus, in Bennett v. State, 95 Ark. 100, 128 S. W. 851, the court said:

“We would not have disturbed a verdict, under the evidence, for murder in the first degree. There is evidence tending to show that appellant was guilty of murder in the first degree. There is no evidence tending to prove that appellant was guilty of voluntary manslaughter. His crime was murder in the first degree, if anything. By finding the appellant guilty, the jury accepted the testimony tending to prove guilt, and rejected the testimony of appellant tending to prove his innocence. Since there was testimony tending to show that appellant was guilty of murder in the first degree, he cannot complain because the jury, believing him guilty of some offense, found for a lower degree than that of which he was guilty, if guilty at all. Appellant was not prejudiced by the verdict as to the degree of homicide of which the jury found him guilty, since they might have found him guilty under the evidence of the highest crime in the indictment.”

In Brown v. State, 31 Fla. 207, 12 South. 640, it was urged that there was error in submitting manslaughter to the jury under an indictment for murder. The court simply said in disposing of the contention:

“An accused cannot be heard to complain of error of this character, that is in his favor.”

In State v. Quick, 150 N. C. 820, 64 S. E. 168, the defendant was indicted for murder and convicted of manslaughter. The court said:

“Suppose the court erroneously submitted to the jury a view of the case, not supported by evidence, whereby the jury were permitted, if they saw fit, to convict of manslaughter instead of murder. What right has the defendant to complain? It is an error prejudicial to the state, and not to him. His plea of self-defense had been fully and fairly presented to the jury and rejected by them as untrue. What, then, was the duty of the jury, if there was no evidence of manslaughter? Clearly, under the law, they should have convicted the defendant of murder in the second degree. How, then, can the defendant, his plea of self-defense having been wholly discarded by the jury, and the burden being upon him to reduce the offense to something less than murder in the second degree, reasonably complain of the charge, however erroneous in that respect, which permitted the jury to convict of a lesser degree of homicide?”

There is a vigorous dissent filed in this case by Walker, J., in which he points out the reasons why such a doctrine cannot be maintained, although he does concur in the result in the case on the ground that there was evidence of manslaughter.

In State v. Perry, 78 S. C. 184, 59 S. E. 851, a defendant was charged with murder and was convicted of manslaughter. The court said:

“There was testimony tending to show that the defendant was guilty of murder. Therefore, he has no just cause to complain that the jury took a merciful view of his case, and simply found him guilty of manslaughter.”

In the state of Texas the decision upon this proposition seems to be somewhat in doubt. Thus, in Boren v. State, 32 Tex. Cr. R. 637, 25 S. W. 775, the defendant was convicted of murder. He complained because the court had instructed on murder in the second degree, contending that there was no evidence presenting this degree. The court said:

“We agree with counsel, that this homicide was murder of the first degree, or no offense whatever. If appellant was not insane, this was a cold-blooded murder. If he was, the homicide was excusable. The issue was * * * sanity or insanity. On such a state of the case a charge upon murder of the second degree was * * * clearly beneficial to appellant.”

It was accordingly held that the error of the court in submitting the issue of murder in the second degree did not call for a reversal of the judgment.

In Chapman v. State (Tex. Cr.) 53 S. W. 103, the court...