State v. Simpson., 4038.
| Decision Date | 04 March 1935 |
| Docket Number | No. 4038.,4038. |
| Citation | 39 N.M. 271,46 P.2d 49 |
| Parties | STATEv.SIMPSON. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Eddy County; McGhee, Judge.
James H. Simpson was convicted of voluntary manslaughter, and he appeals.
Affirmed.
Generally, evidence requiring submission of issue of self-defense in murder trial calls for submission of issue of voluntary manslaughter.
See, also, 37 N. M. 453, 24 P.(2d) 291.
O. O. Askren, of Roswell, for appellant.
E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.
Appellant was informed against in Lea county for murder in the first degree. The venue was changed to Eddy county, where he was convicted of voluntary manslaughter.
The sole contention is that there was no evidence in the case to warrant the submission of the grade of homicide of which appellant was convicted. The brief carefully abstracts all the evidence with a view to disclosing that, unless the theory of self-defense were to prevail, it shows the appellant guilty of murder, and shows him not guilty of voluntary manslaughter.
First and second degree murder were submitted over the objections of appellant's counsel. To the submission of voluntary manslaughter counsel stated, on inquiry by the judge, that there was no objection. The state contends that this should preclude reliance on any error in this submission. It urges that State v. Diaz, 36 N. M. 284, 13 P.(2d) 883, controls only the case of failure to object, not the case of express consent.
That contention of the state we need not pass upon, in view of our conclusion on the main question. We deem it wise, however, to point out that it would be unfortunate if the profession were generally to overlook that the final somewhat unsatisfactory conclusion in the Diaz Case was reached upon lines of decision more or less conflicting and upon peculiar statutes; that, in pursuance of the rule making power (Laws 1933, c. 84), this court has revised the statutes on instructions to juries, effective July 1, 1934; and that the rule now is: Comp. St. 1929, § 70-108, as amended by court rule of procedure (see 38 N. M. p. xvii).
In order to determine whether the evidence in this case warranted the submission of voluntary manslaughter, we need not refer to the evidence on the part of the state. It would undoubtedly have sustained a conviction of murder.
[1] The appellant, however, claimed to have fired in self-defense. He testified that the deceased was advancing upon him with a drawn knife, and that he (appellant) “shot to protect himself from the knife,” and only after warning the deceased to cease his attack.
Thus was put into the case the theory that appellant acted in fear or terror of being killed or done great bodily harm. The jury's refusal to acquit does not disclose a rejection of this claim. Before justifying the homicide, they must appraise the circumstances as warranting an ordinarily prudent and courageous person in entertaining such apprehension and in acting upon it.
The verdict rendered really discloses an acceptance of this theory, put into the case by appellant's own testimony. Rejection of the plea of self-defense left an unlawful homicide, to be named and punished as murder if committed in malice, and as voluntary manslaughter if committed in heat of passion.
The jury was directed in substance to inquire into the presence of a sufficient provocation to excite in appellant's mind such an emotion as terror, to an extent to obscure reason and exclude malice. And it was directed that a reasonable doubt whether the homicide, if found to be unlawful, was murder or manslaughter, Should be resolved against the former.
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State v. Griffiths
...will call for a submission of voluntary manslaughter." State v. Plummer, 44 N.M. 614, 107 P.2d 319, 320 (1940), State v. Simpson, 39 N.M. 271, 46 P.2d 49 (1935). Morgan v. State, 536 P.2d 952 (Okl.Cr.1975), followed Lopez, supra, and other New Mexico cases in holding that "in every future p......
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State v. Montoya, 3958
...generally speaking evidence requiring submission of self-defense will call for a submission of voluntary manslaughter. State v. Simpson, 39 N.M. 271, 46 P.2d 49 (1935). In the instant case, the court instructed the jury on self-defense. But what were the undisputed On the night in question,......
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Morgan v. State
...Mexico. The leading case in that jurisdiction, State v. Kidd, 24 N.M. 572, 175 P. 772 (1886), was again re-examined in State v. Simpson, 39 N.M. 271, 46 P.2d 49 (1935), wherein the court upheld the submission of voluntary manslaughter and 'The appellant . . . claimed to have fired in self-d......
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State v. Plummer.
...v. Diaz, 36 N.M. 284, 13 P.2d 883; State v. Davis, 36 N.M. 308, 14 P.2d 267; State v. Layman, 39 N.M. 127, 42 P.2d 201; State v. Simpson, 39 N.M. 271, 46 P.2d 49; State v. Inman, 41 N.M. 424, 70 P.2d 152; State v. Vargas, 42 N.M. 1, 74 P.2d 62. In the case of State v. Simpson, supra [39 N.M......