Territory v. Gutierez

• Citation: 79 P. 716,13 N.M. 138,1905 -NMSC- 018
• Parties: TERRITORY v. GUTIEREZ.
• Decision Date: 25 February 1905
• Court: New Mexico Supreme Court

79 P. 716

13 N.M. 138, 1905 -NMSC- 018

TERRITORY v. GUTIEREZ.

Supreme Court of New Mexico

February 25, 1905

Syllabus by the Court.

1. The law does not presume malice from the use of a dangerous weapon in a case of homicide, but such use is a circumstances from which the jury may imply malice, if borne out by all the facts and circumstances in the case.

2. It is error to instruct the jury that the killing of a human being with a dangerous weapon is murder in the second degree unless the jury believe that the killing was without malice in fact. The defendant is never required to prove his innocence, but only to raise a reasonable doubt of his guilt.

3. The court should instruct the jury as to what constitutes justifiable homicide, in the case of an officer who kills another while attempting an arrest for felony, and where there is evidence tending to show that the deceased was attempting to kill the officer, or members of his posse, in resisting such an arrest.

Appeal from District Court, Bernalillo County; before Justice Benjamin S. Baker.

Toribio Gutierez was convicted of murder, and appeals. Reversed.

The appellant, Toribio Gutierez, was tried at the March, 1904 term of the district court of Bernalillo county, on change of venue from Valencia county for the murder of one Salomon Vallejos, and was convicted of murder in the second degree. A motion for a new trial was heard and overruled, and appellant brings this case here on appeal. The evidence shows that the appellant was a deputy sheriff of Valencia county, and at the time of the homicide had collected a posse and gone to the residence of one Candelario Jaramillo, in Los Lentes, in said county, for the purpose of arresting the deceased for felonies recently committed by him; that he had no warrant for the deceased, but that the felonies had been committed within a few hours of the homicide. About 9 or 10 o'clock p. m. the deputy and his posse arrived at Jaramillo's house, and immediately thereafter the deceased and others came out of the house. There is a conflict of testimony as to what then occurred; the theory of the prosecution being that appellant shot and killed the deceased without cause or provocation, and that of appellant being that deceased drew a pistol and attempted to shoot the deputy and members of his posse. There is testimony to support either contention. It is not denied that defendant fired the shot which caused the death of the deceased, who expired in a few hours.

E. V Chaves, for appellant.

George W. Prichard, Sol. Gen., for the Territory.

MANN J. (after stating the facts).

The errors complained of and insisted upon by appellant in his brief consist of instructions given by the trial court, which were duly excepted to by appellant, and certain instructions asked by him and refused by the court, which refusal he assigned as error.

The court instructed the jury on the question of malice as follows:

"(4) Malice is that state or condition of mind indicated by a wicked and malicious purpose, which characterizes the perpetration of a wrongful act intentionally committed, and without lawful excuse or justification. It is that quality or frame of mind which prompts the unlawful, premeditated, and intentional act, and which shows a heart regardless of social duty and fatally bent on mischief. This frame or condition of mind is denominated express or actual malice, and its existence, if it does exist, is to be found by the jury, as any other material element on the case, beyond a reasonable doubt. Express malice is that deliberate intention unlawfully to take away the life of a fellow creature which is manifest by external circumstances capable of proof. And in passing upon this issue it is competent for the jury to consider the acts, language, and conduct of the defendant, as shown in the evidence, in connection with all facts and circumstances proven on the trial.

"(5) In cases of homicide, however, the law presumes malice from the use of a deadly weapon, on from the wanton or cruel killing of another without excuse or justification therefor, or without considerable provocation, unless the evidence which proves the homicide also shows that it was perpetrated without malice. If you believe from the evidence, beyond a reasonable doubt, that the defendant killed the said Salomon Vallejos, wantonly and cruelly, without justification or excuse therefor, or without considerable provocation, or that he killed the said Salomon Vallejos with a deadly weapon, then the law presumes that it was done maliciously, and you should so find, unless you further believe from the evidence that it was done without any malice in fact. You are instructed, as a matter of law, that a loaded gun is a deadly weapon, and the law presumes that every sane and accountable human being intends the natural and probable consequences of his own voluntary acts; and if the evidence proves that the said defendant fired leaden bullets into the body of the said Salomon Vallejos, and inflicted a wound upon or in the body of the said Salomon Vallejos, then you would be warranted in concluding that the defendant intended to inflict said wound upon or in the body of the said Salomon Vallejos."

It is a serious question whether the use of a deadly weapon under the circumstances in this case would justify the instructions given, and in fact it may well be questioned whether there is a presumption of law arising in any criminal case as against the accused, in the general acceptation of the term. Mr Wharton, in his work on Criminal Evidence, § 738, speaking of the presumption of malice arising from the fact of the killing of a human being, says: "We must keep in mind...