STATE V. ANAYA, 1969-NMSC-130, 80 N.M.
695, 460 P.2d 60 (S. Ct. 1969)
STATE OF NEW MEXICO, Plaintiff-Appellee,
vs.
GILBERT JOE ANAYA, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1969-NMSC-130, 80 N.M. 695, 460 P.2d 60
Appeal from the District Court of
Bernalillo County, Montoya, Judge.
JAMES A. MALONEY, Attorney General,
JUSTIN REID, Assistant Attorney General, Santa Fe, Attorneys for
plaintiff-appellee.
JAMES E. THOMSON, Santa Fe, Attorney for
defendant-appellant.
TACKETT, Justice, wrote the opinion.
J. C. Compton, J., James W. Musgrove, D.J.
{1} The defendant was charged
with the crime of murder in Santa Fe County, New Mexico. After trial, the jury
returned a verdict finding the defendant guilty of second degree murder. The
trial court imposed a sentence of not less than 10 nor more than 50 years.
Defendant appeals.
{2} The record reveals that
an information was filed on July 7, 1965, accusing defendant of murdering
Sophia Sena, also sometimes known as Sophie Sena; Sofie Sena and Sofia Sena, on
or about June 20, 1965, in Santa Fe County, in violation of § 40A-2-1, N.M.S.A.
1953 Comp.
{3} The information and bill
of particulars alleged that the defendant did willfully and with premeditation
murder and kill Sophia Sena; that prior to the killing, defendant uttered a
"bad remark" to decedent and was slapped therefor at Vigil Brothers
Bar. Decedent departed that bar and defendant left shortly thereafter. Decedent
went to the Twentieth Century Club and remained a short time and, upon leaving
this latter bar, she walked north on Galisteo Street, where the defendant had
stopped his automobile, waited and blocked her path. With gun in hand, defendant
told decedent he was going to kill her. Defendant fired two shots, missed
decedent, and again told her he was going to kill her. Defendant fired a third
shot and the bullet penetrated the left side of decedent's head. She fell to
the pavement, mortally wounded, and later succumbed. Defendant then sped away
in his automobile. The three shots were fired at an approximate distance of
three feet from decedent.
{4} Appellant contends, under
point I, that the trial court erred in giving instruction No. 8 and, under
point II, in refusing to instruct the jury as requested by defendant. The court
gave 30 instructions to the jury, among them No. 8, which reads:
"In order to find the defendant guilty of murder in the
second degree, it is required that you should find from the evidence beyond a
reasonable doubt that the killing was done with malice. Malice shall be implied
when no adequate provocation exists for the killing, or when all the
circumstances of the killing show a wicked and malignant heart, and if you
believe from the evidence beyond a reasonable doubt that no adequate
provocation existed for the killing, if you so find, or that all the
circumstances of the killing show a wicked and malignant heart, then you must
find that such killing was with premeditated malice or malice aforethought,
that is, malice without the aggravating circumstances of deliberation.
"You may imply malice in this case if you find beyond a
reasonable doubt that the killing was perpetrated by means of a deadly weapon.
Deadly weapon within the meaning of the instructions means all kinds and
classes of pistols, whether the same be a revolver, repeater, derringer, or any
kind or class of pistol or gun."
This instruction was proper under the circumstances of the
instant case. Appellant contends the giving of the instruction {*697} was prejudicial because it
overemphasized the use of the gun. He further contends that the trial court
should have adopted his requested instruction No. 30, in lieu of instruction
No. 8 given by the trial court. With this we cannot agree.
{5} Appellant places great
reliance on State v. Ochoa,
61 N.M. 225,
297 P.2d 1053 (1956), to support his
requested instruction No. 30, which reads: "Malice is not inferred from
the mere carrying of a pistol." This statement in the Ochoa case was
merely explanatory dicta, as it concerned the carrying of a pistol rather than
its use. The Ochoa case held that where a killing with a deadly weapon has been
established, malice can be implied. See State v. Gilbert,
37 N.M. 435,
24 P.2d
280 (1933), as it is there stated:
"It seems to be well established in this jurisdiction
that it is within the province of the jury to imply malice in a case where a
killing with a deadly weapon [such as here] has been established. * * *"
{6} The trial court also
instructed on voluntary manslaughter, but not on involuntary manslaughter as
requested by appellant.
{7} Appellant had the right
to have instructions on lesser included offenses submitted to the jury. This
right depends, however, on there being some evidence tending to establish the
lesser included offenses. State v. Duran,
80 N.M. 406,
456 P.2d 880 (Ct. App.
1969), citing State v. Sandoval,
59 N.M. 85,
279 P.2d 850 (1955). Compare,
State v. Pruett,
27 N.M. 576,
203 P. 840 (1921). There was insufficient
evidence in the instant case to warrant an instruction on involuntary
manslaughter.
{8} All that can be required
of the court's instructions is that they properly give to the jury the
essential facts which must be established beyond a reasonable doubt before the
defendant can be convicted. State v. Gilliam,
60 N.M. 129,
288 P.2d 675 (1955).
{9} After a careful review of
the trial court's instructions, we deem them adequate and no error was
committed.
{10} The conviction is
affirmed.
J. C. Compton, J., James W. Musgrove, D.J.