State v. Reed, 3947.

• Decision Date: 21 November 1934
• Docket Number: No. 3947.,3947.
• Citation: 39 N.M. 44,39 P.2d 1005
• Parties: STATEv.REED et al.
• Court: New Mexico Supreme Court

39 N.M. 44

39 P.2d 1005

STATE

v.REED et al.

No. 3947.

Supreme Court of New Mexico.

Nov. 21, 1934.Rehearing Denied Jan. 21, 1935.

Appeal from District Court, Curry County; Patton, Judge.

Roy Reed and Leonard Beck were convicted of second degree murder, and they appeal.

Reversed and remanded, with direction.

Legislature, adopting into law of pleading proviso of Oklahoma statute that jury may find defendant guilty of any offense necessarily included in that charged, did not adopt Oklahoma courts' interpretation thereof as precluding reversal of conviction for lower degree of homicide than evidence warranted because no prejudice resulted to defendants. Comp.St.1929, § 35-4409; Comp.St.Okl.1921, § 2740.

John J. Kenney and Earl D. Kenney, both of Santa Fé, for appellants.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

WATSON, Chief Justice.

These appellants were put to trial on an information charging murder in the first degree, and were convicted of murder in the second degree. The only issue of fact was upon the defense of alibi. The point mainly relied upon for reversal is that the court erred in submitting the facts as capable of sustaining a verdict of murder in the second degree.

The facts are sufficiently disclosed in an accompanying dissenting opinion.

The first count of the information charged that appellants, while armed, made an assault on the deceased with intent to rob him of money, and that, while so engaged, they took him into their hands, tied and bound him, and placed him near and onto a fire, and set fire to his clothing and body, thereby inflicting mortal burns from which he died.

The second count alleged the same acts, but omitted the allegations that appellants were armed and that their assault was made with intent to rob.

[1] The first count was evidently meant to charge “a murder committed in the perpetration of or attempt to perpetrate any felony,” by statute, murder in the first degree. Comp. St. 1929, § 35-304; State v. Welch, 37 N. M. 549, 25 P. (2d) 211. At the close of the case the court put the state to an election. It stood on the second count. The first thus went out of the case and cannot aid the verdict.

[2] The second count was no doubt meant to charge “murder *** perpetrated by means of *** torture,” also by statute murder in the first degree. Comp. St. 1929, § 35-304. Whether it would have sustained the theory of “murder *** perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life,” is a question we need not determine.

The state made a case which would have sustained a conviction of murder in the first degree on the theory of the first count. But we cannot convict appellants of a crime of which, because of the withdrawal of that count, the jury was not at liberty to convict them, and of course did not. The verdict must stand the test of the second count.

[3][4] The verdict must also stand the test of the instructions, the unquestionable law of the case for the jury. That eliminates the possible theory of “murder *** perpetrated by any act greatly dangerous to the lives of others,” etc. The jury, entirely uninstructed on this theory, could have based no verdict upon it.

[5] The jury was so instructed that the verdict represents this: That the homicide was effected by making an assault upon the deceased, tying and binding him and placing him at, near, and onto a fire, inflicting on his body mortal burns of which he died, and that “such killing was unlawfully, feloniously, wilfully and premeditatedly done by the said Roy Reed and Leonard Beck, with malice aforethought on the part of the said Roy Reed and Leonard Beck then and there to effect the death of the said Lee Marshall”; but that such killing was not done “from a deliberate and premeditated design” to effect his death; that is to say, that if, from malice aforethought to effect death, one shall kill another by means of torture, his crime is murder in the second degree if the jury consider the killing not to have been done with deliberation.

A mere reading of the statute demonstrates that this is a misconception: “All murder which shall be perpetrated by means of *** torture *** shall be deemed murder in the first degree.” Comp. St. 1929, § 35-304.

[6][7] It is firmly established that it is error to refuse to instruct on a degree of homicide of which there is substantial evidence and error to submit a degree of homicide of which there is no evidence. State v. Hunt, 30 N. M. 273, 231 P. 703.

Very recently we have held it error to leave it to the jury to determine whether a homicide committed in the perpetration of a felony is murder of the first or of the second degree. State v. Welch, 37 N. M. 549, 25 P. (2d) 211.

We should perhaps not fail to mention a grave doubt whether any conviction could have been sustained under these instructions. A purpose to rob the deceased of his money or to extort it is easily to be found in the evidence. The inference of a purpose to kill him is not so readily to be drawn, if at all. By the instructions the jury, if it was to convict at all, was required to find the presence of malice aforethought to effect the death of the deceased. The evidence strongly suggests murder committed in perpetrating, or attempting to perpetrate, a felony. It possibly suggests murder perpetrated by acts greatly dangerous to the life of the deceased, and indicating on the part of appellants depraved minds, regardless of human life. But these theories did not find their way to the jury. This doubt we do not pursue; it not being the question presented.

[8] There was evidence that appellants had been drinking before they commenced, and while they were engaged in, their inexpressibly cruel treatment of the deceased. This is the single matter pointed to by the state in justification of the submission of murder in the second degree. This evidence, it is urged, would have warranted the jury in finding appellants incapable of that deliberation essential to murder in the first degree. Cf. State v. Brigance, 31 N. M. 436, 246 P. 897.

Passing the question whether this doctrine is applicable to murder by torture, it is plain that the point is without merit. Intoxication could have had nothing to do with the verdict. The defense did not invoke it to avoid the extreme penalty. The state did not invoke it as a safeguard against acquittal. The judge did not submit or mention it. If the jury took it into consideration, it did so improperly and without guidance as to its legal effect.

In the decision of this case we are faced with the alternatives of sustaining the present verdict or of discharging the appellants. They have been tried and acquitted of the crime of which they may be guilty, murder in the first degree. The Bill of Rights forbids that they be put in jeopardy again for that offense. N. M. Const. art. 2, § 15. It would be futile, of course, to put them to trial again for an offense of which the evidence absolves them.

So it is that we have been industrious in the search for some means or theory which the Attorney General may have overlooked to warrant sustaining this probably just, but unlawful, verdict.

[9] In our conferences there has once again been advanced the contention that the error in the instructions and in the verdict is nonprejudicial and so not reversible; that men guilty of murder in the first degree are fortunate and have nothing of which to complain if adjudged guilty of a lesser offense and subjected to a lesser punishment. That contention has been fully considered and definitely rejected here in recent years. State v. Pruett, 27 N. M. 576, 203 P. 840, 846, 21 A. L. R. 579. There this court undertook to set it at rest “on account of the importance of the question, and also on account of the constant recurrence of the question before the court.” See, also, State v. Trujillo, 27 N. M. 594, 203 P. 846, State v. Hunt, 30 N. M. 273, 231 P. 703.

It is needless to go over the ground again. In deciding as it did, this court was fully mindful of the unfortunate consequences which confront us here. Every argument that supports the opposite doctrine was weighed. If we were doubtful of the wisdom of the decision, we should still adhere to it. We consider it not only the part of wisdom but a high duty here to pursue a consistent course. We shall not add to the confusion now existing in the law of homicide by reopening the question.

We may pause to say that it is not certain that, if we should overrule State v. Pruett, supra, it would end this appeal. It might still leave open, as a ground for rehearing, the question above suggested, whether in this particular case, under the instructions given, in view of the evidence, a conviction of murder in the first degree could have been upheld. If it could not, the whole point is without merit.

An opinion has also found lodgment that the doctrine of the Pruett Case may be upheld where, as there, the conviction was of involuntary manslaughter, all the evidence showing murder; or where, as in the Trujillo Case, the conviction was of voluntary manslaughter; and that we may still refuse to follow it in this case where the conviction is of second degree murder.

An arbitrary distinction of this kind could be easily made. To support it on principle seems impossible. There is plenty of argument for a change of policy, but none that we are able to discern for the distinction. To adopt it would be merely to accept the reasons and authorities heretofore weighed and found wanting; to stand by the Pruett Case as precedent, while rejecting it in principle.

[10] After all, it is in effect urged, murder is but “the unlawful killing of a human being, with malice aforethought.” Comp. St. 1929, § 35-301. Murder in the first degree is that form of murder in which there is present the deliberation which constitutes “intensified or first degree malice.” State v. Smith, ...