State v. Greenlee , 33 N.M. 449 ( 1928 )

We were in error in stating in the foregoing opinion that at the time the tender of proof was rejected the trial court had not been advised that the issue of self-defense would be made. It is correctly pointed out on this motion that an announcement of such defense had been previously made. This necessary correction does not, however, vary the result. We think, nevertheless, that it was appellant's duty, in connection with his offer of proof, to call the court's attention to the theory on which he relies in this appeal, namely, that, in the nature of things, the fact that deceased was found in intimate association with appellant's wife, soon after having had intercourse with her, would so affect his state of mind as to have a bearing upon the truth of appellant's claim as to his aggressive attitude. It would be demanding much of a trial court to exact that, in the hurry and stress of a trial, he sense a theory so out of the ordinary that it has evidently occurred to counsel themselves only as an afterthought.

It is urged by counsel for appellant that from a reading of the entire record we should conclude that appellant, at the time of the homicide, must have been convinced that his wife and the deceased had been immediately theretofore sexually intimate; that, notwithstanding appellant's own statement as to his reason for firing the fatal shot, he must have been influenced further by such conviction; that the trial court, by excluding the tendered evidence, had, in effect, refused to adopt the interpretation of Code 1915, § 1468, upon which appellant relied, and the rule established by the Texas decisions; that thereby appellant was placed in a dilemma, in that, if he avowed that his reason for shooting the deceased was the conviction thus entertained by him, he would be, under the ruling of the court, admitting guilt of manslaughter, and that for that reason he was cut off from one of his legitimate defenses, and compelled to rely upon the not inconsistent self-defense.

We cannot entertain this contention. Admitting that appellant was placed in the dilemma suggested, if he chose the method of escape now suggested, his choice was ill-considered. The ruling of the court, if erroneous, could have been correctd by exception and appeal to this court. That course was open to appellant, and afforded him a complete remedy. But if appellant saw fit to provide his own remedy, by suppressing or perverting the full truth, this court is without power to correct his mistake.

The analogy of State v. Luttrell, cited in the opinion, is questioned, and it is contended that the present case is more like State v. Martinez, 30 N.M. 178, 230 P. 379. While the present case is not greatly similar to State v. Luttrell in its facts, we think that the principle laid down in that case, and which we invoked, is clearly applicable here. In State v. Martinez the defendant did not (so far as is disclosed in the able opinion, of which former Justice Fort, of counsel for appellant in the present case, was the author) assume herself to limit and define the motives which actuated her, further than to say that she "was in anger and in fear at the same time." Thereupon it became the duty of the court to submit to the jury the several theories which found support in the circumstances of which there was proof. In the case at bar, appellant's counsel called upon him to inform the jury why he shot the deceased, and appellant then, testifying as to his own state of mind, a fact as to which he alone could give positive proof, placed before the jury the sole justification of self-defense. The distinction between the two cases is obvious and important.

After careful consideration of the present contentions, our views remain unchanged. The motion for rehearing will therefore be denied.

It is so ordered.

BICKLEY, J., concurs.