State v. Bentford , 39 N.M. 293 ( 1935 )

The decision turns upon a question of evidence, or the want of it, and a further statement of facts seems essential to a proper understanding of the issue. Defendant's brief states:

"The scene of the alleged crime is at Central, a small town situate about ten miles from Silver City, New Mexico, in Grant County, and about two miles from Fort Bayard, where the large U.S. Veterans' Hospital is located. There are a good many colored people living at Central. The principal place for these people to visit and congregate is at the George Washington place, which consists of a rather large adobe residence, an outside room for renting, other small outside buildings and a pool hall. At the time of the disappearance of Gussie Thomas, also known as `Shorty' Thomas, colored, the deceased, she and a colored man by the name of Jim Noble were living together and had been living together for more than one year, although not married, in a small adobe house, across the paved Silver City-Bayard highway, only a short distance from the rear portion of the Washington place. Appellant, Alford Bentford, also known as `Bert' Bentford, colored, the man Noble, and others worked for George Washington, colored, in his wood yard and in hauling in wood from the mountains. The deceased visited right along in the Washington home, and Bentford lived there, and all of them were on good terms and friends.

"On Saturday evening, December 16, 1933, T.H. Schroeter, accompanied by Ed. Wombley, came to Central looking for some one to go to the Schroeter home at Bayard, some two and one-half miles east of Central, to nurse his father who was ill, and Wombley had told Schroeter that Jim Noble had nursing experience at Fort Bayard and suggested they try to find Noble. Naturally, the first place they inquired was at the Washington place and about this time Bentford came from across the street toward the Washington place and was hailed by Schroeter and asked if he (Bentford) knew where Jim Noble lived and upon receiving an affirmative reply, Bentford got into the Schroeter car and was taken to the front of the two-room adobe house where Noble and the deceased lived. It appears from all the evidence that Bentford did not enter the Noble house, but called up Noble, and accompanied Noble to the Schroeter car, where both got into the rear seat of the car with Schroeter and there the conversation about the employment of Noble occurred. Noble accepted the employment; Schroeter took Wombley over to the main part of the town, had a glass of beer, came back in a short time, and Noble came out of the house and accompanied Schroeter to Bayard."

Noble testified that before his departure the defendant entered the room where the deceased was in bed and remained there a few moments, while he, Noble, was gathering up his clothes and preparing to depart for the scene of his labors. His patient died Monday morning, he returned to his home, and immediately started searching for the deceased. When the body was taken from the well a week later, the deceased's hands were tied behind her back, and the physician who examined the body testified:

"Q. Were there any wrappings or bandages around her face? A. Yes sir, two.

"Q. Where and what were they? A. The pajama pants were tied tightly around her neck and over her chin and mouth and another piece of cloth around her eyes.

"Q. Was there any other wrappings on her beside that? A. She had a pajama coat on and a brassiere.

"Q. Was there anything from the waist down? A. Nothing from the waist down.

"Q. The body from the waist down was nude? A. Well, she had on this menstrual belt and a pad. * * *"

Human blood was found on the bedclothing of the deceased, and other evidence was produced from her room.

It will be noted that this case is quite similar to that of State v. Johnson, 37 N.M. 280, 21 P.2d 813. It was submitted to the jury on like instructions, in which the court quoted our first-degree murder statute, as follows: "All murder which shall be perpetrated by means of poison or lying in wait, torture, or by any kind of wilful, deliberate and premeditated killing, or which is committed in the perpetration of or attempt to perpetrate any felony, or perpetrated from a deliberate and premeditated 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. * * *" (Comp. St., 1929, § 35-304).

No request was made for instruction on a lesser degree of homicide. In the Johnson Case, the defense was an alibi. In the case at bar, the defendant offered no evidence, but in the conversations with reference to his dreams, about which the state's witnesses testified, he claimed not to have been at the scene of the crime. 30 C.J. 404, § 650 states: "Where instruction not required. An instruction on murder in the second degree is not required where there is no evidence which tends to show that degree, as where the evidence, although circumstantial, shows that defendant is either guilty of murder in the first degree or innocent. Where the defense is an alibi, instructions on murder in the second degree may be properly omitted."

In the case of State v. Reed, 39 N.M. 44, 39 P.2d 1005, the court cited with approval Sparf v. United States, 156 U.S. 51,715, 15 S. Ct. 273, 292, 39 L. Ed. 343, 360, in which the opinion of the court by Mr. Justice Harlan states:

"Briefly stated, the contention of the accused is thatalthough there may not have been any evidence whatever to support a verdict of guilty of an offense less than the one charged, — and such was the case here, — yet, to charge the jury, as matter of law, that the evidence in the case did not authorize any verdict except one of guilty or one of not guilty of the particular offense charged, was an interference with their legitimate functions, and therefore with the constitutional right of the accused to be tried by a jury.

"The error in the argument on behalf of the accused is in making the general rule as to the respective functions of court and jury applicable equally to a case in which there is some substantial evidence to support the particular right asserted and a case in which there is an entire absence of evidence to establish such right. In the former class of cases the court may not, without impairing the constitutional right of trial by jury, do what, in the latter cases, it may often do without at all intrenching upon the constitutional functions of the jury. The law makes it the duty of the jury to return a verdict according to the evidence in the particular case before them. But, if there are no facts in evidence bearing upon the issue to be determined, it is the duty of the court, especially when so requested, to instruct them as to the law arising out of that state of case. So, if there be some evidence bearing upon a particular issue in a cause, but it is so meager as not, in law, to justify a verdict in favor of the party producing it, the court is in the line of duty when it so declares to the jury." (Citing cases.)

Defendant quotes from Territory v. Padilla, 8 N.M. 510,46 P. 346, 347, from which quotation I take the following excerpt: "* * * If the rule were that every secret homicide presumes murder in the first degree, then the slayer of a man whose body is found pierced by bullets, having in its hand a weapon recently discharged, is placed in the same category as he who has slain unseen a defenseless woman, whose polluted corpse bears evidence of the utmost atrocity. * * *"

I agree with the learned counsel of defendant that there is no presumption of murder in the first degree, but there is substantial evidence in this record to support the verdict.

The case made by the record is first-degree murder. It is certainly "one of the forms of murder deemed most atrocious." The manner of taking life, and all the circumstances, furnish sufficient evidence of deliberation and express malice. The only other theory advanced, except general speculation, is that found in the case of State v. Kauffman, 329 Mo. 813, 46 S.W.2d 843,847, where the court said: "There was no instruction submitting the case on the theory of a homicide committed in the perpetration of or attempt to perpetrate rape, the theory on which the state's case really proceeded, unless instruction No. 3 was meant to submit that issue. The evidence justified and called for an appropriate instruction submitting that issue. While defendant in his confession and oral statements nowhere used the word `rape' or `ravish,' he did say he `attacked' deceased and in her struggle in resisting him she was killed. The word `attack' does not necessarily mean ravish, but, used as it was in connection with the circumstances shown, it could reasonably have been understood and doubtless was intended to be understood as meaning that he ravished or attempted to ravish her. However, if the court intended to submit the case only upon the hypothesis of a murder committed premeditatedly and with deliberation, disregarding the hypothesis of homicide committed in the perpetration of or attempt to perpetrate rape, then we think the instructions, in order fully to present the law, should have included an instruction on murder in the second degree. While we think there were sufficient circumstances shown, including defendant's statements and confession, to authorize a finding, if believed by the jury, of premeditated and deliberate murder, the defendant said in those statements and confession that the killing was not premeditated, that he had not intended to kill deceased."

If the defendant in this case had supplied such evidence, we would have had a different record, and, no doubt, the learned trial judge would have submitted it to the jury only as murder while perpetrating a felony. For this court to substitute conjecture for evidence, similar to that given in the Missouri case, to the effect that the killing was not premeditated, and that the defendant had not intended to kill, and to hold that since the trial court did not submit the case upon the theory of murder while perpetrating a felony, it was prejudicial error not to submit instructions on murder in the second degree, seems to me fallacious. Contrary to the rule in Missouri, in this state if the court had submitted instructions on first-degree murder on the hypothesis of homicide committed while in the perpetration of a felony, and submitted with it instruction on the second degree, a verdict of guilty of murder in the second degree would have resulted in the discharge of the defendant. See State v. Reed et al., supra.

In the case of Sparf v. United States, supra, there is an able dissenting opinion by Mr. Justice Gray, concurred in by Mr. Justice Shiras, which concludes: "For the twofold reason that the defendants, by the instructions given by the court to the jury, have been deprived both of their right to have the jury decide the law involved in the general issue, and also of their right to have the jury decide every matter of fact involved in that issue, we are of opinion that the judgment should be reversed, and the case remanded, with directions to order a new trial as to both defendants."

This doctrine has been followed in some of the states where all the degrees of homicide are submitted to the jury. We seem to be in neither camp, but wandering somewhere between the two positions. Under the minority rule, no doubt the jury would sometimes err on the side of mercy, but the case at bar falls so clearly in the class of first-degree murder that if all the degrees of homicide had been submitted to the jury, the identity of the perpetrator of the crime would have been the only question considered.

I dissent.