State v. Sanchez.
| Decision Date | 15 February 1921 |
| Docket Number | No. 2461.,2461. |
| Citation | 196 P. 175,27 N.M. 62 |
| Parties | STATEv.SANCHEZ. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
Murder in the second degree is murder with malice, but without deliberation, and it is error to instruct that murder in the second degree is murder with malice and without deliberation and premeditation.
The words “premeditation” and “aforethought” are synonymous, and mean thought of beforehand. State v. Smith, 194 Pac. 869, followed.
Appeal from District Court, Taos County; R. R. Ryan, Judge.
Cruz Sanchez was convicted of murder in the second degree, and he appeals. Reversed and remanded, with directions.
The words “premeditation” and “aforethought” are synonymous, and mean thought of beforehand, and hence an instruction that a killing with malice aforethought and without deliberation or premeditation is murder in the second degree is confusing.
E. R. Wright and J. J. Kenney, both of Santa Fe, and F. T. Cheetham, of Taos, for appellant.
N. D. Meyer, Asst. Atty. Gen., for the State.
Cruz Sanchez, was indicted for the murder of Francisco Martinez at the June, 1918, term of the district court in and for Taos county. To this indictment he pleaded not guilty, was tried, and verdict of guilty of murder in the second degree returned by the jury. Motion for new trial was made, overruled, excepted to, and an appeal granted to this court.
At the close of the state's case defendant's counsel requested the court to withdraw from the consideration of the jury the crime of murder in the first degree. This motion was granted, and the court instructed on murder in the second degree. No evidence was offered by the defense. From certain admissions and statements testified to have been made by accused after the killing, he apparently attempted to justify the homicide on the ground of self-defense.
[1] Appellant assigns numerous errors, only one of which need be considered in this opinion as it is controlling. It is assigned as error that the court in its instruction No. 7 gave an erroneous definition of murder in the second degree as being murder with malice aforethought, but without deliberation and premeditation. The instruction complained of, as far as material for consideration in this case, is as follows:
“* * * The court charges you that, if you believe from the evidence beyond a reasonable doubt that the defendant on the 10th day of November, 1918, or at any other time within six years next prior to the 5th day of June, 1919, in the county of Taos and state of New Mexico, did shoot off and discharge a loaded pistol towards the said Francisco Martinez, thereby inflicting in and upon the body of him, the said Francisco Martinez, a mortal wound, of which said mortal wound the said Francisco Martinez then and there died, and that such shooting, wounding, and killing was done by the defendant with...
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State v. Garcia
...(Ct.App.1973) (second degree murder is murder with premeditation or malice aforethought, but without deliberation); State v. Sanchez, 27 N.M. 62, 64, 196 P. 175, 175 (1921) (same).8 E.g., State v. Manus, 93 N.M. 95, 98, 597 P.2d 280, 283 (1979) ("In determining whether substantial evidence ......
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State v. YOUNG
...law malice. The distinction between the two was elaborately considered in State v. Smith, 26 N.M. 482, 194 P. 869, and State v. Sanchez., 27 N.M. 62, 196 P. 175. In Torres v. State, 39 N.M. 191, 43 P.2d 929, 931, we reviewed the Smith and Sanchez cases, stating: 'State v. Smith, [26 N.M. 48......
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State v. Tapia
...intent to kill is required for a conviction for second degree murder. State v. Smith, 26 N.M. 482, 194 P. 869 (1921); State v. Sanchez, 27 N.M. 62, 196 P. 175 (1921); State v. Aragon, supra; Torres v. State, 39 N.M. 191, 43 P.2d 929 (1935). We would agree with the appellant's contention tha......
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State v. Hall., 4063.
...is, a thinking over with calm and reflective mind-to do the fatal act.” This rule has been consistently followed. State v. Sanchez, 27 N.M. 62, 196 P. 175; State v. Kile, 29 N.M. 55, 218 P. 347; Ex parte Simpson, 37 N.M. 453, 24 P.(2d) 291; Torres v. State, 39 N.M. 191, 43 P. (2d) 929, 931;......