Torres v. State

• Decision Date: 08 April 1935
• Docket Number: No. 4028.,4028.
• Parties: TORRESv.STATE.
• Court: New Mexico Supreme Court

39 N.M. 191

43 P.2d 929

TORRES

v.STATE.

No. 4028.

Supreme Court of New Mexico.

April 8, 1935.

Error to District Court, Colfax County; Taylor, Judge.

Julian Torres was convicted of murder in the first degree, and he brings error.

Reversed and remanded, with a direction.

Malice was implied from unexplained killing with deadly weapon, and justified failure to submit issue of voluntary manslaughter in homicide prosecution.

H. M. Rodrick, of Raton, for plaintiff in error.

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

WATSON, Justice.

Julian Torres brings error from a conviction of murder in the first degree and a resulting capital sentence.

The first matter complained of is the failure of the court to submit murder in the second degree.

The dead body of the deceased was found lying on a wagon loaded with wood, to which his team still stood hitched. Death was caused by a bullet entering the neck about one and a half inches below the lobe of the right ear, ranging slightly upward, severing the jugular vein and leaving the body “near the lower lobe of the left ear, a little bit behind.”

[1] The state was compelled to rely upon circumstances alone to sustain its claims that a felonious homicide was committed, that the crime was murder in its first degree, and that plaintiff in error was the guilty party. The state is also compelled to admit here that if there is any evidence of the second degree of murder, there must be a new trial of this case. Cf., State v. Diaz, 36 N. M. 284, 285, 13 P.(2d) 883.

For present purposes we need not detail all the numerous circumstances which brought the jury to this conviction. We may assume that a felonious homicide was traced to plaintiff in error. That leaves for mention and consideration only such of the circumstances as may throw some light on the grade of the crime.

The plaintiff in error testified in his own behalf, but said merely that he did not kill the deceased.

[2][3] The state admits that where the evidence is circumstantial, and the facts thus shown “are susceptible of two or more constructions,” it is not for the court to decide between them. State v. Trujillo, 27 N. M. 594, 203 P. 846. It thereby necessarily assumes the burden of convincing the court that the facts here are susceptible of but one construction. The position actually taken is that the undisputed evidence shows “that the deceased was killed without warning and while he was driving his wagon along the road.”

The circumstances relied on for this conclusion are that the point of entry and course of the bullet are such that the deceased could not have been looking at or toward his assailant; that there is no evidence of any struggle; and that threats of killing had been made.

As has been pointed out recently, the distinction between the two degrees of murder is often troublesome. State v. Reed et al., 39 N. M. -, 39 P.(2d) 1005, 1006. Upon the correct understanding and application of that distinction much depends. In this case the life of the plaintiff in error is at stake, and the courts cannot afford to relax principles.

Not so long ago this court undertook to clarify the subject. State v. Smith, 26 N. M. 482, 194 P. 869, 870. In that case not so much was at stake as here. Smith was convicted of murder in the second degree. In his endeavor to obtain a new trial he had everything to gain and nothing to lose. He stood finally acquitted of the capital offense.

[4] The Smith Case also differs from the case at bar in this: There error was laid on the submission of murder in the second degree. Here it is laid on the refusal to submit that degree. Theoretically the distinction is immaterial. Since “it is error to refuse to instruct on a degree of homicide of which there is substantial evidence and error to submit a degree of homicide of which there is no evidence” (State v. Reed et al., supra), the court must determine as matter of law in any given case whether reasonable men could differ regarding facts and inferences.

The present case is especially strong in its appeal to conscience. The court refused to permit a verdict which would have spared life. At the same time, the jury was erroneously encouraged to “recommend the defendant to the clemency of the court,” and told that “any such recommendation will receive due consideration by the court.” The jury did recommend clemency, where no clemency was possible. Seven jurors subsequently joined in an affidavit to the effect that they were misled by the instruction to believe that the court had the power, if clemency were recommended, to impose a penitentiary sentence, and that, except for this, they would not “have voted for a verdict of guilty of murder in the first degree.”

Put to it, as we are, to determine whether the circumstances are susceptible of a construction that would make the crime murder in the second degree, we must first come to an understanding of what murder in the second degree is. That, this court deliberately and laboriously undertook to determine in State v. Smith, supra.

Following the statute, there was but one course to be pursued. From the generic offense, murder, Mr. Justice Raynolds, writing the opinion, carved out murder in the first degree. What remained was necessarily murder in the second degree. So, while the task the court set for itself was “to ascertain the meaning of the phrase ‘murder in the second degree’ as used in the statutes of this state,” that task was accomplished when the court had ascertained the meaning of “murder” and of “murder in the first degree,” as employed in the statute.

[5] State v. Smith has been often cited to the proposition that the true distinction between murder in the first degree and murder in the second degree is in the kind of malice present. If it be the ordinary malice aforethought of the common law, it is murder in the second degree. But if it be “intensified malice,” a “deliberate intention unlawfully to take away the life of a fellow creature,” it is murder in the first degree; that “kind of murder *** deemed more atrocious than others”; not to be implied as a matter of law “when no considerable provocation appears or when all the circumstances of the killing show a wicked and malignant heart”; but to be proven by external circumstances “raising” the offense to that grade of enormity for which the statute reserves the extreme penalty. This is the result to which many readings of this decision and much reflection bring us.

[6] Just a little later the same author and the same concurring justices reduced the matter to this: Murder in the second degree is “murder with malice, but without deliberation.” Malice includes “premeditation.” Deliberation is more than mere premeditation, and is the distinguishing characteristic of murder in the first degree. State v. Sanchez, 27 N. M. 62, 196 P. 175.

[7] The error in the Sanchez Case was that the judge overlooked the difference between premeditation and deliberation. Since the interpretation of our statute in the Smith and the Sanchez Cases, there is no reason for making that mistake. “Premeditation,” as said in the Smith decision, means merely “thought of beforehand.” That meaning has led the courts from time immemorial to give the stock instruction that the intent to kill, if entertained but for a moment, is sufficient. But “deliberation,” as said in the Smith case, means “a thinking over with calm and reflective mind.” A little later this court employed the slightly different expression, “fixed and settled deliberation and coolness of mind.” State v. Kile, 29 N. M. 55, 218 P. 347, 352.

It is definitely to be gathered from these cases that we speak somewhat inaccurately when we inquire whether facts which would support a conviction of murder in the first degree may or must support a conviction of murder in the second degree. The question generally is rather whether facts showing the crime of murder are sufficient to raise it to the higher degree.

The question then is whether the facts in this case warranted the trial judge in holding, as matter of law, that the plaintiff in error slew the deceased after thinking the matter over with calm and reflective mind, or after settled deliberation and in coolness of mind.

Here it is to be noted that, while the jury was more than once reminded by the instructions that, to constitute murder in the first degree, the act must have been done with deliberation, it was never told that deliberation in the law of homicide involves a thinking over with calm and reflective mind, or involves a fixed and settled purpose and coolness of mind, or anything equivalent to that thought. Quite suggestive of the contrary, it was told that: “*** while the law requires that the killing, in order to constitute murder in the first degree, shall be wilful, premeditated and deliberate, still it does not require that the wilful intent, premeditation or deliberation shall exist for any prescribed length of time before the crime is...