Territory v. Hendricks
| Decision Date | 11 January 1906 |
| Parties | TERRITORY v. HENDRICKS. |
| Court | New Mexico Supreme Court |
Syllabus by the Court.
When the evidence of eyewitnesses to a homicide is to the effect that the killing was either murder in the first or second degree, or justifiable, it is error to submit by instructions the third degree to the jury for its consideration; and if the jury by its verdict finds the defendant guilty in that degree, the judgment and sentence pronounced thereon will be reversed on appeal.
[Ed Note.-For cases in point, see vol. 26, Cent. Dig. Homicide, § 640.]
Appeal from District Court, Chaves County; before Justice William H Pope.
Nath Hendricks was convicted of murder in the third degree, and appeals. Reversed.
Appellant Nath Hendricks, was indicted at the April, 1901, term of the district court of Chaves county, charged with having murdered one William Rainbolt, a deputy sheriff of Chaves county. The indictment is in the usual form, and charges murder in the first degree. The defendant entered a plea of not guilty, and the case was tried in the fall of 1903. The jury returned a verdict of guilty in the third degree, and appellant was sentenced to imprisonment in the territorial penitentiary for 10 years. From this judgment, defendant below, appellant herein, appealed. The facts are sufficiently stated in the opinion.
Gatewood & Bateman, for appellant.
George W. Prichard, Atty. Gen., for the Territory.
In deciding this case it is only deemed necessary to consider the error alleged by appellant to have been committed by the court in instructing the jury as to murder in the third degree, in which degree the jury returned a verdict of guilty. The contention of appellant is that no evidence was introduced during the trial of the case to warrant the court in giving to the jury an instruction as to murder in this degree, nor to sustain the verdict of guilty in that degree when returned by the jury.
Section 1060, Compiled Laws of 1897, defines murder as the unlawful killing of a human being with malice aforethought, either express or implied, and sections 1061 and 1062 define express and implied malice. Murder, by the laws of this territory, is divided into three degrees, and they are found in the Compiled Laws of 1897, and are numbered, respectively, sections 1063, 1064, and 1065. In section 1063 murder in the first degree is defined as follows, to wit: "All murder which shall be perpetrated by means of poison, or lying in wait, torture, or by any kind of willful, deliberate and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate any felony, or perpetrated from a deliberate design unlawfully and maliciously to effect the death of any human being, or perpetrated by any act greatly dangerous to the lives of others, and indicating a depraved mind regardless of human life, shall be deemed murder in the first degree." Section 1064 defines murder in the second degree as follows: "Every murder which shall be perpetrated without a design to effect death, by a person while engaged in the commission of a misdemeanor, or which shall be perpetrated in the heat of passion without design to effect death, but in a cruel and unusual manner, or by means of a dangerous weapon, unless it is committed under such circumstances as constitute excusable or justifiable homicide, or which shall be perpetrated unnecessarily, either while resisting an attempt by the person killed to commit any offense against person or property, or after such attempt shall have failed, shall be deemed murder in the second degree." Section 1065, defines murder in the third degree as follows: "Every killing of a human being by the act, procurement or culpable negligence of another, which under the provisions of this act is not murder in the first or second degree, and which is not excusable or justifiable homicide as now defined by law, shall be deemed murder in the third degree."
Six eyewitnesses to the homicide testified, to wit, Simmerson Kennedy, Elmore, Rainbolt (a brother of the deceased), Davis, Travis Moore, and the appellant, Nath Hendricks, while a considerable number of persons who saw what immediately preceded and followed the killing were put upon the witness stand both by the territory and the defense. From an examination of the record the facts in the case may be summarized as follows: A dance was held at a two-room house situated near the town of Roswell, in Chaves county, on the evening of February 8, 1901. Oliver Hendricks attended and took part in the festivities. William Rainbolt, who was a deputy sheriff, also was present, having driven in a buggy, accompanied by one or two men, to the house where the dance was held. After arriving at the dance the deceased sat around for some time, and seeing a pistol in the pocket of Oliver Hendricks, asked him to step outside the house, and when he had done so demanded that he surrender the pistol to him and consider himself under arrest. Oliver Hendricks at first demurred, but finally, under the persuading influence of a revolver pointed at him by the officer, gave it up. Before Rainbolt and Oliver Hendricks had gone outside of the house where the dance was held, Nath Hendricks, appellant herein, and brother of Oliver Hendricks, rode up, dismounted from his horse, and tied it to the fence, which was in front of the house and...
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