State v. Wickman

• Court: Supreme Court of New Mexico
• Citation: 43 P.2d 933,39 N.M. 198
• Docket Number: No. 4036.,4036.
• Parties: STATEv.WICKMAN.
• Decision Date: 08 April 1935

39 N.M. 198

43 P.2d 933

STATE

v.WICKMAN.

No. 4036.

Supreme Court of New Mexico.

April 8, 1935.

Appeal from District Court, Bernalillo County; Otero, Judge.

Carl Wickman was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

Refusal to instruct on murder in second degree, where accused stated in confession that he killed his wife on sudden impulse, held to require new trial.

W. A. Brophy and Owen B. Marron, both of Albuquerque, for appellant.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

WATSON, Justice.

Carl Wickman, convicted of murder in the first degree, appeals from the resulting capital sentence.

The count of the information which went to the jury charged that the killing was effected by striking the deceased with a heavy weapon.

On the evening of the homicide state's witnesses, driving north on the Albuquerque–Santa Fé Highway, were stopped by appellant about ten miles north of Albuquerque. Appellant's car was partly on and partly off the pavement, headed south toward Albuquerque. The deceased, appellant's wife, was lying on the pavement some feet ahead of the car, dead or practically so.

Appellant then claimed that he and his wife had been driving toward Albuquerque, the deceased at the wheel; that the steering apparatus had broken; that both alighted, deceased on the left, appellant on the right; that on coming around to the left side of the car, he found the deceased lying on the pavement, evidently having been struck by a passing car.

A week later, a written statement was made by appellant which the state introduced in evidence. He there admitted killing the deceased, saying that as she stooped to look under the car he struck her on the head with an iron. The confession runs thus:

“I Carl Wickman deem this to be my true confession. Saturday noon Nov. 25th I came home and told my wife Donalda that I had deceived her in every way Explaining that we had no money at all That buying a business was a myth All was a wild fancy in my brain She cried but did not reproach me too much We talked about it for a little while in which time I felt smaller and smaller. Presently she stood up where I was and kissed me and swore she would stand by me and see it through. Her bigness of heart was too big for me I felt like I was not fit to live I had resolved to commit suicide I didn't tell her that She must have understood She suggested that we eat early and go to town and obtain work We passed the Church and went in and prayed Saw Mr. Johnstone of the Salvation Army and he told me to go and live with them Monday

“We felt mighty blue and I felt guilty as Hell. We went to Church and I confessed to Father Walsh my intentions of suicide and other sins That evening we decided to take a little drive We left about 7:30 and drove North through Alameda I don't know how to say it but thoughts of suicide ran through my mind and the advice Father gave me That was terrible I got past Alameda and turned off into the cottonwood trees and I went about 200 yards, and there turned around and stopped. I talked with my wife and confessed what I had done and she forgave and kissed me Then we left and pulled out into the highway and went north towards Bernalillo a couple of miles and turned around and drove back toward Alameda driving slowly I was in a daze I knew what was going on and then I didn't. I remember her saying something is wrong with the wheels and we stopped I got out of the car on the right side with the Iron in my hand. I was looking at the front wheel to see if it was flat and looked under the car and saw the steering wheel dropped. My wife Donalda was out of the car She stooped down to look under the car and I hit her one blow on the head with the Iron and she staggered a few steps down the road and fell forward. I swayed back against the fender and dropped the rod on the running board then I ran forward. She was laying on her side face down The coat was there I dont know what I did with it I put it underneath her head I dont know how long I was there talking to her A car didnt come for some few minutes. I knew something terrible had happened I did not know until tonight what it was or how it had happened All I remember was seeing her lying on the pavement. There was no abuse or promises in obtaining this confession.”

It was the theory of the state that appellant had long planned the killing; that he had procured numerous policies of accident insurance upon her life, and that his motive was to realize upon them.

Appellant did not testify in his own behalf, and the only witness for the defense was a surgeon who performed the autopsy, by whom it was attempted to show at least a possibility that the deceased had been hit and killed by a passing automobile.

[1] The admission of the confession was resisted and is here complained of. But first it is contended that the court erred in refusing to permit the jury to consider any offense other than murder in the first degree. It is claimed that murder in the second degree and voluntary manslaughter should have been submitted.

The principles here involved have been discussed in Torres v. State, 39 N. M. 191, 43 P.(2d) 929, an opinion handed down with this. Little need be added to what is there said. We have but to apply those principles to this case.

In State v. Reed et al., 39 N. M. 44, 39 P. (2d) 1005, an opinion was pressed that any homicide amounting to murder must contain within its circumstances a set of facts constituting murder in the second degree. The majority admitted the truth of this “in the ordinary homicide case,” but denied its applicability in that case. Because of the statute, we could not uphold a verdict which said that the defendants had committed a malicious homicide by means of torture and were guilty of murder in the second degree. We had just previously held similarly as to a verdict which said that one who had committed a murder (homicide) in the perpetration of a felony was guilty of murder in the second degree. State v. Welch, 37 N. M. 549, 25 P.(2d) 211. Not only are those forms of murder readily identifiable; they had been actually identified by the verdicts in those cases.

Those cases do not answer the question whether in any other class of homicide the state of mind of the slayer, as to the quality or grade of his malice, may be so laid bare by evidence as to permit the judge to declare it as matter of law. That question did not arise in Torres v. State, supra. In that case we were compelled to hold that the circumstances were susceptible of more than one construction. In such a case the choice is admittedly for the jury.

In the case at bar the judge necessarily held that the evidence disclosed a killing, not merely premeditated in the legal sense, “thought of beforehand,” but deliberate in the legal sense, after “a thinking over with calm and reflective mind” or from a “fixed and settled deliberation and coolness of mind.”

We have no purpose to insist upon these particular definitions, though they come from the highest authority. In the case at bar the judge instructed: “‘Deliberate’ may be defined as not suddenly and after the mind has weighed all the matters presented to it.” Let us determine the matter according to that standard.

We take it that if an accused slayer should testify in his own behalf that he committed the homicide upon a sudden impulse, without having planned or sought the encounter, and without having considered the consequences, it would raise a question of fact as to his state of mind, no matter how strongly other evidence might suggest that the killing had been deliberately planned for the basest purpose. How does the case at bar differ from such a case?

The state introduced res gestæ statements of appellant, in which he claimed that the deceased was killed by a passing automobile. It also introduced the confession, in which appellant admitted that he killed the deceased with a heavy iron. He did not confess that he killed her, not suddenly, and after his mind had weighed all the matters presented to it. The one thing that stands out in this incoherent statement is in effect a denial of having weighed matters, a denial of the state's theory of law and fact. What appellant had been weighing was suicide. The impulse to slay came upon him suddenly with the opportunity, and he acted upon it.

Lame as this claim of mitigation is likely to seem in the eyes of the jury, we do not see how the judge can take it from the jury's consideration. If it is true, the crime was murder in the second degree. The jury could accept such part of this confession as it believed, and reject the rest. The judge could reject none of it.

It follows that appellant has not had that chance for his life which the law gives him, and must have a new trial.

Other contentions of error will be mentioned only in so far as seems advisable in contemplation of another trial of the case.

In this record, as in the Torres record, we find no evidence of voluntary manslaughter, and no error in refusing to submit that theory of the homicide.

Two points are made as to the confession: That the court admitted it “before the corpus delicti had been proven by independent evidence;” and that the court erred in admitting it because not voluntarily made.

[2] It seems to be assumed by the able counsel who serve appellant by designation of the court that the general principle of criminal law that the corpus delicti cannot be made out by the extrajudicial confession requires that the corpus delicti be proven before admission of the confession. And trial judges generally so regulate the matter. But if the state's case as finally submitted contains sufficient independent proof that the crime charged has been committed by some one, it is not our understanding that the mere order of proof is matter for inquiry and regulation here. None of the authorities cited so indicate. That the necessary...