State v. Tapia

• Decision Date: 12 January 1970
• Docket Number: No. 8719,8719
• Citation: 1970 NMSC 4,466 P.2d 551,81 N.M. 274
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. David Jose TAPIA, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 551

466 P.2d 551

81 N.M. 274

STATE of New Mexico, Plaintiff-Appellee, v. David Jose TAPIA, Defendant-Appellant.

No. 8719.

Supreme Court of New Mexico.

Jan. 12, 1970.

Rehearing Denied March 30, 1970.

[81 NM 274] Lorenzo E. Tapia, Thomas Lee Marek, Albuquerque, for defendant-appellant.

James A. Maloney, Atty. Gen., Spencer T. King, Vince D'Angelo, Asst. Attys. Gen., Santa Fe, for plaintiff-appellee.

OPINION

MOISE, Chief Justice.

Appellant was convicted of murder in the second degree and appeals. He argues two claimed errors by the trial court.

By his first point, appellant asserts that voluntary intoxication, of a degree which would prevent formation of a specific intent to kill, should have an effect in law of reducing the offense from second degree murder to voluntary manslaughter.

Appellant recognizes that for him to prevail on this point it is necessary that the court reconsider State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966), where we stated unequivocally that 'voluntary intoxication is no defense to murder in the second degree,' citing State v. Cooley, 19 N.M. 91, 140 P. 1111, 52 L.R.A.,N.S., 230 (1914); State v. Aragon, 35 N.M. 198, 292 P. 225 (1930); State v. Padilla, 66 N.M. 289, 347 P.2d 312, 78 A.L.R.2d 908 (1959).

His argument proceeds on the basis that the court here instructed that, to find appellant guilty of second degree murder, it was necessary that the State prove beyond a reasonable doubt that the 'killing was done unlawfully, feloniously, wilfully, with malice aforethought and with premeditation' and then defined the terms 'premeditated,' 'wilfully' and 'malice aforethought,' as follows:

'PREMEDITATED signifies that which has been resolved upon in the mind and thought out before its manifestation in an act. Premeditated malice exists where the intention to take human life unlawfully is deliberately formed in the mind and that determination is meditated upon before the fatal stroke is given. The law requires no specific time for deliberation and premeditation between the formation and the consummation of the intent or plan to kill. It is only necessary that the intended act of killing be preceded by a concurrence of the will and premeditation on the part of the intending slayer, however brief the period of time may have been theretofore.

'* * *.

'WILFULLY means the doing of an act, knowingly and intentionally, and when it is not the result of accident or misfortune.

'* * *.

'MALICE AFORETHOUGHT exists where the intention, unlawfully, to take human life, is deliberately formed in the mind and that intention thought of before the fatal deed is done. There need be no appreciable space of time between the formation of the intention and the killing itself. It is only necessary that the act of killing be preceded by a concurrence of the will and premeditation on the part of the slayer.'

It is his position that, by the quoted definitions, it was made clear that before appellant could be found guilty of second degree murder proof was required that a specific intent 'unlawfully, to take human life' was deliberately formed and thought of before he acted. State v. Rayos, 77 N.M. 204, 420 P.2d 314 (1967), a case involving a charge of sexual assault of a female minor under the age of sixteen years, is cited in support of a rule that, in crimes where a specific intent is a necessary element, a showing of intoxication to a degree that would make such an intent impossible would establish a valid defense to the charge. Appellant argues that, in the instant case, the court, by its definition, recognized that a specific intent was required before appellant could be found guilty and, further, that since proof was presented that he was extremely intoxicated, the jury should have been permitted to consider if the intoxication was so great that the specific intent could not have been formed, in which event the appellant could have been found guilty of no greater offense than voluntary manslaughter. Although requested to do so, the court refused to instruct to this effect.

Appellant's argument necessarily turns on his view that a specific intent to kill is an element of the crime of murder in the second degree at least under the instructions given by the court in this case. The law of New Mexico, however, is clear that no specific 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 that in crimes where a specific intent is a necessary element, a showing of intoxication to a degree that would make such an intent impossible, would establish a valid defense to the charge. State v. Rayos, supra; compare State v. Padilla,66 N.M. 289, 347 P.2d 312, 78 A.L.R.2d 908 (1959). But, as noted above, a specific intent is not required for conviction in second degree murder, thus explaining why voluntary intoxication is no defense to such a charge. State v. Cooley, 19 N.M. 91, 140 P. 1111, 52 L.R.A.,N.S., 230 (1914); State v. Aragon, supra; State v. Padilla, supra; State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966).

We would add a word to the effect that if the instructions required a specific intent in order to convict of second degree murder, and we doubt that they did, the appellant should not be heard to...