State v. SMITH, 5019

• Decision Date: 16 September 1947
• Docket Number: No. 5019,5019
• Citation: 51 N.M. 328,184 P.2d 301
• Parties: STATE v. SMITH.
• Court: New Mexico Supreme Court

51 N.M. 328

184 P.2d 301

STATE

v.SMITH.

No. 5019.

Supreme Court of New Mexico.

Aug. 12, 1947.

Rehearing Denied Sept. 16, 1947.

[184 P.2d 302, 51 N.M. 329]

Win. T. O'Sullivan and Wm. Y. Wilson, both of Albuquerque, for appellant.

C. C. McCulloh, Atty. Gen., Robert V. Wollard and Wm. R. Federici, Asst. Attys. Gen., for appellee.

McGHEE, Justice.

The defendant was charged with the murder of his one year old step-daughter, Darla Jeane Ducharme, and a verdict of guilty of murder in the second degree was returned by the jury.

At about 7 p. m., August 8, 1946, the defendant and the child left his home in Albuquerque in an automobile. The only clothing the child was wearing was a diaper. She was happy and no bruises were visible on her body. The defendant returned at approximately 10:40 p. m. with her dead body in his arms. There were bruises on her buttocks, back, throat, face and head. Later that night an autopsy was performed on the the body and the physician was of the opinion that death was caused by asphyxiation. The next day he opened the head and found several cerebral hemorrhages. The doctor testified that the cause of death was probably a combination of cerebral hemorrhage, a blow on the side of the head and suffocation; that it was the result of force externally applied and not from natural causes.

The contentions of the defendant: (a) that there was no proof to establish beyond a reasonable doubt any criminal agency was the proximate cause of the death; (b) that there was no substantial evidence to connect the defendant with the death as such agent; (c) that assuming such facts were sufficiently established the offense was no greater than manslaughter, and (d) that there was not sufficient evidence to support the verdict, may be disposed of together. We have carefully examined the record, including the admissions of the defendant and we find that there is substantial evidence to warrant the submission of murder to the jury and to support the verdict.

The defendant has made several assignments of error based on the instructions given and the failure of the court to instruct on certain points. We quote the record made on the instructions:

'The Court: Have you any objections or exceptions to the instructions to the jury?

'Mr. O'Sullivan: I except to No. 6 so far as it uses the term 'suffocation'.

'Having noted an exception to Instruction No. 6 insofar as the same includes the word 'suffocation' as the cause of death, Irespectfully except also to the court's instructions as to 'flight' on the part of the defendant.

'The Court: Expand your exception to wherever the word 'suffocation' is used.

'Mr. O'Sullivan: I so expand it.

'And I respectfully except to the charge relating to murder in the first degree and murder in the second degree, and also to the submission of the issues to the jury on the basis either of murder in the first degree and murder in the second degree.

'I further except to the use of the word 'abiding' along in the phrase 'abiding conviction' as contained in the instruction concerning 'reasonable doubt' without a further definition of the meanign of the word 'abiding'.

'The Court: Anything more?

'Mr. O'Sullivan: I will submit defendant's requested instruction No. 1. (This instruction refers to the failure of the state to use certain witnesses who were in attendance on the court).

'The Court: It will be denied.'

On account of his failure to comply with rule 70-108 and point out the errors or to tender a proper instruction the defendant is now precluded from claiming that the court erred in the instructions given. State v. Blevins, 39 N.M. 532, 51 P.2d 599; Laws v. Pyeatt, 40 N.M. 7, 52 P.2d 127; State v. Richardson, 48 N.M. 544, 154 P.2d 224.

The defendant makes his strongest attack on instruction No. 21, which reads: 'If you believe from the evidence beyond a reasonable doubt that the defendant on the 8th day of August, 1946, or at any other time within ten years next prior to the 30th day of August, 1946, the date of the filing of this information, at the County of Bernalillo,in the State of New Mexico, did strangle, suffocate and/or inflict blows on the body of the said Darla Jean Ducharme, thereby inflicting in and upon the body of the said Darla Jean Ducharme mortal wounds, of which said mortal wounds the said Darla Jean Ducharme died, and that such wounding and killing was done by the defendant of his malice aforethought, and without premeditation and deliberation, then you are instructed that such killing would constitute murder in the second degree.'

This instruction without the phrase 'and/or' was held erroneous in State v. Sanchez, 27 N.M. 62, 196 P. 175, for stating that premeditation was not an essential element of murder in the second degree. The statement was made in the argument that a check of the files in murder cases in Bernalillo county showed that the district judges had there overlooked the decision of this court in State v. Sanchez, supra, and that except for the 'and/or' phrase and minor changes to fit the facts, the instructionabove quoted had been given in every murder case tried in that county since early in 1921 in which murder in the second degree has been submitted to the jury, and strange to say the attorneys for the defendants have...