State v. Smith.

• Decision Date: 22 January 1921
• Docket Number: No. 2356.,2356.
• Citation: 26 N.M. 482,194 P. 869
• Parties: STATEv.SMITH.
• Court: New Mexico Supreme Court

26 N.M. 482

194 P. 869

STATE

v.SMITH.

No. 2356.

Supreme Court of New Mexico.

Jan. 22, 1921.

Syllabus by the Court.

Murder in the second degree is murder with malice, but without deliberation.

“Malice” and “premeditation” defined (citing Words and Phrases, Malice; First and Second Series, Premeditate--Premeditation).

Malice in the law of murder is not a conclusion of law, but an inference of fact.

In a case where the prosecution attempts to prove murder in the first degree, perpetrated by lying in wait, and the defendant pleads self-defense, the court properly instructed the jury on murder in the second degree.

Appeal from District Court, Socorro County; M. C. Mechem, Judge.

O. W. Smith was convicted of murder in the second degree, and he appeals. Affirmed.

In a case where the prosecution attempts to prove murder in the first degree, perpetrated by lying in wait, and the defendant pleads self-defense, the court properly instructed the jury on murder in the second degree.

James G. Fitch and M. C. Spicer, both of Socorro, for appellant.

Nicholas D. Meyer, Asst. Atty. Gen., for the State.

RAYNOLDS, J.

Upon filing of the former opinion a motion for rehearing was made. On account of the importance of the subject we have deemed it advisable to withdraw the former opinion and reconsider the entire case.

Appellant, defendant below, was indicted at the September, 1918, term of the district court of Socorro county for the murder of Fred Richards; the indictment being in the usual form and charging first degree murder.

At the trial the evidence on both sides showed that defendant and deceased owned adjoining ranches on Mineral creek in said county, defendant's being the upper ranch; that there were disputes over water rights, and on the day previous to the homicide, while the deceased was in Mogollon, his wife, with the assistance of a hired man, partially cut defendant's dam, over the objection of defendant, who was present at the time. There was some altercation between defendant and the wife, and the evidence was conflicting as to whether the defendant offered personal violence towards the hired man. No threats were made except the defendant said he would bring suit, and the wife stated she would report the matter to her husband.

The evidence on both sides is in accord that defendant shot deceased while the latter was riding up and northward along the road running through the defendant's ranch, that both defendant and deceased were armed with rifles at the time, deceased carrying his rifle in a scabbard on the right of his saddle, and that but one shot was fired, that by the defendant, which proved instantly fatal. There were no eyewitnesses. In all other respects the evidence introduced on behalf of the prosecution and the defense was diametrically opposed.

The state sought to prove by circumstantial evidence that defendant fired the fatal shot while kneeling behind a small bush at the right of the road facing northward; that a person behind this bush, while concealed from the view of any one passing northward along the road, had a view of the road and any one traveling upon it. The evidence introduced in behalf of the state was, in effect, that there were found footprints, claimed to be those of the defendant, near this tree or bush, knee and toe prints immediately behind it, an empty cartridge shell of the size and kind used in defendant's rifle near by, and there was also evidence as to the course of the bullet from right to left through the body of the deceased, the tearing of a leaf, the fresh break of a dead twig, and a hole with a bullet in it in the trunk of a tree on the left-hand side of the road, all of which were claimed to be in line with the supposed position of the body of the deceased and the bush on the right-hand side of the road, from which it was claimed the shot had been fired.

Defendant introduced testimony tending in part to contradict and in part to explain some of the circumstances testified to by the state's witnesses, which are hereafter referred to, and also testified that he had gone out over his ranch that morning, taking his rifle with him with a view of killing a rabbit or a squirrel; that he had been up to where his dam was cut and was returning down the road towards his house carrying his rifle over his left shoulder, when he met deceased coming up the road on horseback; that as soon as deceased saw him deceased started to pull his rifle from the scabbard. Defendant testified that he warned deceased not to pull his rifle or he would shoot, and that deceased persisted and succeeded in drawing his rifle from the scabbard; that his horse became restive and turned toward the left, which delayed deceased in getting his rifle into position to fire. Defendant, after deceased had gotten his rifle out of the scabbard, pulled his own rifle off his shoulder, taking several steps to the right of the road, and fired the fatal shot. Deceased fell from his horse and died almost instantly. His hat, rifle, and quirt were found by his body.

The court in several of its instructions defined murder in the second degree, and told the jury that they might return a verdict in that degree. The defendant objected to each of these instructions and excepted to them at the time they were given. The jury returned a verdict of guilty in the second degree, and after a motion for a new trial had been overruled, the court sentenced the defendant. From this verdict and sentence the defendant has prosecuted this appeal.

The appellant contends that the court committed error by instructing the jury as to murder in the second degree over the defendant's objection, and that there was no evidence to support such an instruction, nor to support a finding by the jury of murder in the second degree. This is the sole proposition in this case. It is urged by the appellant that there is no middle ground in a case of this kind, but that it is one either of murder in the first degree or justifiable homicide on the ground of self-defense.

The law in this state is that the court must instruct in every degree of the crime charged when there is evidence in the case tending to sustain such degree (Territory v. Romero, 2 N. M. 474; Territory v. Romine, 2 N. M. 114; Territory v. Nichols, 3 N. M. [Gild.] 103, 2 Pac. 78; Territory v. Friday, 8 N. M. 204, 42 Pac. 62), and that it is error to refuse to instruct on any degree of the crime charged when there is evidence in the case of such degree (Territory v. Lynch, 18 N. M. 15, 133 Pac. 405). It has also been held that the court should refuse to instruct on a degree of the crime charged when there is no evidence of such degree. Territory v. Anderson, 4 N. M. (Gild.) 213, 13 Pac. 21; Territory v. Baker, 4 N. M. (Gild.) 236, 13 Pac. 30; Faulkner v. Territory, 6 N. M. 464, 30 Pac. 905; Territory v. Thomason, 4 N. M. 154, 13 Pac. 223; Sandoval v. Territory, 8 N. M. 573, 45 Pac. 1125; Territory v. Clark, 15 N. M. 35, at page 44, 99 Pac. 697; Territory v. Kimmick, 15 N. M. 178, 106 Pac. 381; Territory v. Archuleta, 16 N. M. 219, 114 Pac. 285; State v. Granado, 17 N. M. 542, 131 Pac. 497. It has been further held that it is error to instruct on a degree of the crime charged when there is no evidence to support the instruction on such degree. Territory v. Pridemore, 4 N. M. (Gild.) 275, 13 Pac. 96; Territory v. Fewell, 5 N. M. 34, 17 Pac. 569; Territory v. Hendricks, 13 N. M. 300, 84 Pac. 523.

By our statute (section 1459, Code 1915) all murder which shall be premeditated--by means of lying in wait--shall be deemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree. It is conceded by the state and by the appellant that the act of lying in wait supplies the element which raises the crime to the grade of murder in the first degree, and that, if such fact--that is, lying in wait--is proven, together with the elements that constitute murder in the second degree, it is not necessary for the state to go further and prove deliberation.

The evidence for the state in this case was entirely circumstantial, the only eyewitness being the defendant, whose testimony was diametrically opposed to that of the state and was, in effect, that he was justified in the killing on the ground of self-defense. There was evidence introduced by witnesses for the defense that the course of the bullet did not pass over the bush in question, and this circumstance tended to confirm defendant's testimony that he shot the deceased from a point near the bush, but not from behind it. He explained the footprints by the fact that he had sat down near the bush after he had killed Richards.

In order that we may properly consider whether there is any evidence to support the verdict of the jury for murder in the second degree, it is necessary to ascertain the meaning of the phrase “murder in the second degree” as used in the statutes of this state. The only definition which our statutes contain, after defining murder and giving specific instances of murder in the first degree, is that “all other kinds of murder shall be deemed murder in the second degree.” The statutes are as follows:

“Murder is the unlawful killing of a human being, with malice aforethought, either express or implied. The unlawful killing may be effected by any of the various means by which death may be occasioned.” Code 1915, § 1456.

“Sec. 1457. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifested by external circumstances capable of proof.

Sec. 1458. Malice shall be implied when no considerable provocation appears, or when all circumstances of the killing show a wicked and malignant heart.”

Section 1459 then proceeds to designate eight different means or methods by which, or in which, when murder is committed, it is murder in the first degree, and concludes with the phrase “and all other kinds of murder shall be deemed murder...