{ "id": 1575405, "name": "STATE v. KUYKENDALL", "name_abbreviation": "State v. Kuykendall", "decision_date": "1933-02-16", "docket_number": "No. 3765", "first_page": "135", "last_page": "139", "citations": [ { "type": "official", "cite": "37 N.M. 135" }, { "type": "parallel", "cite": "19 P.2d 744" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "106 S. W. 138", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "52 Tex. Cr. R. 140", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 4560000 ], "opinion_index": 0, "case_paths": [ "/tex-crim/52/0140-01" ] }, { "cite": "192 P. 483", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "26 N. M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842118 ], "opinion_index": 0, "case_paths": [ "/nm/26/0353-01" ] }, { "cite": "133 P. 405", "category": "reporters:state_regional", "reporter": "P.", "weight": 3, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "18 N. M. 15", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4694919 ], "opinion_index": 0, "case_paths": [ "/nm/18/0015-01" ] } ], "analysis": { "cardinality": 633, "char_count": 11054, "ocr_confidence": 0.476, "pagerank": { "raw": 5.72078634255939e-08, "percentile": 0.35895085003025273 }, "sha256": "d7e25ab036bbb0b5e775e43071a1559a8ab268fa9c952a33303dcf9f728bce23", "simhash": "1:7ea463c4727b35ad", "word_count": 1872 }, "last_updated": "2023-07-14T15:19:46.739107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur." ], "parties": [ "STATE v. KUYKENDALL." ], "opinions": [ { "text": "WATSON, Chief Justice.\nPaul M. Kuykendall shot and killed Pat Murray, was charged, by information, with murder in the first degree, was convicted of murder in the second degree, and has appealed.\nAppellant not having given us a statement of facts, we shall, in the main, follow that of the Attorney General. Appellant was a storekeeper at Rutheron. His wife was postmaster. Their home was in the same building with the store and post office. Deceased was a deputy sheriff, though appellant is not shown to have had previous knowledge of that fact. A year or more before the homicide there had been opposition to appellant\u2019s continuance as a member of the school board, and deceased and others had petitioned for his removal. There is evidence that deceased had threatened appellant\u2019s life and that deceased was a violent, quarrelsome, and dangerous man.\nA school entertainment was to be given in Rutheron on the evening of December 19, 1930. A few days before this the deceased is said to have stated that appellant was carrying a gun, though he had tried and failed to get permission to carry one, and that he (deceased) was \u201cgoing.to have to take a gun off of him\u201d (appellant) at the entertainment.\nBoth appellant and deceased were at the entertainment; the former seated in the rear, the latter near the front. There was no incident until the entertainment was about over, when deceased rose, walked to the rear, confronted appellant, charged him with having a gun, and announced an intention to search him. Appellant demanded t\u00f3 know by what authority deceased was proceeding. The latter then left the building and immediately returned, gun in hand, and exhibited a paper. The latter is not in evidence. Counsel presume it to have been a commission as deputy sheriff; there being no claim that the deceased acted under a warrant.\nSearch was made and no gun was found on appellant. In the process of search, deceased used some physical violence. Thereupon appellant\u2019s wife produced a pistol, pointed it at deceased, and announced that she would shoot if her husband were further interfered with. Deceased called upon a bystander to take the pistol away from-Mrs. Kuykendall, and announced that both she and appellant were under arrest. Appellant himself thereupon took the pistol from his wife and hurriedly left the building and went home.\nMrs. Kuykendall, while holding the pistol, stated that as a postmaster she had a right to carry a gun. Of all the witnesses to this preliminary of the ensuing tragedy, one only, the wife of the deceased, inferred in any way that appellant was armed at the entertainment. This witness claimed to have seen appellant pass the pistol to his wife.\nAfter appellant\u2019s leaving, the deceased, pursuing his announcement of arrest, took Mrs. Kuykendall to \u00e1 ear arid, with one Cox, the bystander above mentioned, started away. On the suggestion of the latter they stopped at appellant\u2019s home to enable her to get wraps or clothing she might need.\nMrs. Kuykendall and deceased proceeded to the door; Cox remaining in the car. Mrs. Kuykendall entered, but Murray\u2019s entrance was barred by one Christian. Cox says that Christian asked the deceased t\u00f3 show his authority ; that deceased took a paper from his overcoat pocket and stretched it across his stomach.; that Christian turned a flash-light on the paper; that appellant came from the hack of the store, which was dark, Cox seeing him by the light held by Christian, and fired two shots; that deceased fell, and appellant fired two more shots; that deceased, while exhibiting the paper, had no gun in his hands; that he rolled off the porch, got to the car, got his gun, and emptied it at the door.\nChristian says that the deceased announced at the door, \u201cI have a woman in there under arrest, and I am going to get that redheaded son-of-a-bitch.\u201d That, as he crowded in at the door with the paper in his left hand, he \u201cwent to his pocket\u201d with his right. The witness heard one shot, then several. His opinion was that the first shot was from the small caliber gun (deceased\u2019s being a .22), and that those succeeding were from the larger gun.\nThe foregoing is by no means a review of the evidence, hut it will suffice for present purposes.\nThe first contention is that the court erred in submitting any grade of homicide higher than voluntary manslaughter. The theory is that the homicide occurred while .appellant was under the provocation of an attempted illegal arrest; that such provocation is sufficient in law to engender \u201cheat of passion\u201d * and that there is no evidence of malice.\nAssuming for the moment that deceased was attempting an illegal arrest, we think appellant\u2019s contention well founded.\nWe have given express 'approval to the principle that \u201cwhere the arrest is illegal, the offense is reduced to manslaughter, * * * unless the proof showed express malice toward the deceased.\u201d Territory v. Lynch, 18 N. M. 15, 133 P. 405, 409.\nThe state urges that the court could not properly have excluded murder from the jury\u2019s consideration, because, admitting that there was an attempt to make an illegal arrest, and admitting that such attempt constitutes sufficient provocation in law for heat of passion, there was still evidence to require the jury\u2019s decision whether heat of passion or malice actually prompted the homicide.\nSuch evidence, if in the record, might usefully have been pointed out. The Attorney General says, however, \u201cWithout discussing such evidence in detail, it is sufficient to call the court\u2019s attention to the introduction in evidence of a petition signed by the deceased asking for appellant\u2019s removal from the school board.\u201d\nWhatever malice this may show on the part \u2022of the deceased, we fail to perceive in it any evidence of malice entertained by appellant.\nMalice is defined as a \u201cdeliberate intention, unlawfully to take away the life of a fellow creature.\u201d Comp. St. 1929 \u00a7 35-302. Express malice is that which is \u201cmanifested by external circumstances capable of proof.\u201d Id. Malice may be implied \u201cwhen no considerable provocation appears, or when all circumstances of the killing show a wicked and malignant heart.'\u201d Id. \u00a7 35-303.\nIt is quite possible in a particular case that the slayer, though the victim of an illegal arrest or attempted arrest, may really have been impelled by malice. It was said in Territory v. Lynch, supra: \u201cWe particularly approve his qualification of the rule, last laid down, that if in fact the outrage of an attempted illegal arrest has not excited the passions, a killing in cold blood will be murder.\u201d\nBut in this case there is no express malice. It can only be implied or inferred from acts and words of the deceased which might be deemed sufficient to engender some degree of ill will in appellant. No \u201cexternal circumstances\u201d have been adduced showing malice. We assume that the jury found, and \"justifiably found, that appellant fired unnecessarily or prematurely. Xet it was after having suffered personal indignity, after having foregone an opportunity to slay his tormenter, and -after having retreated to his home.\nThe rule as above quoted requires the state to show express malice. But if implied malice could suffice in any ease, .there is none here. We have not only a \u201cconsiderable provocation,\u201d but one which the law pronounces sufficient. Nor do \u201call circumstances of the killing show a wicked and malignant heart.\u201d\nSo far we have assumed that the deceased, when slain, was attempting an illegal arrest. The state challenges the assumjjtion. It points to the testimony of the witness Cox as showing that when the deceased appeared at appellant\u2019s home, he did not know that appellant was there; that the purpose was not to arrest appellant, but to allow Mrs. Kuykendall to get her wraps.\nIf the final incident at appellant\u2019s home were to be considered as standing alone, the state would be right, no doubt. But it is immediately and inseparably connected with the preceding incident in the schoolhouse, where, after an abortive search of appellant\u2019s person for a concealed weapon, the deceased illegally declared him under arrest. Taking the state\u2019s evidence for it, and disregarding that of the defense, appellant must have supposed, if deceased did not in fact declare, that the purpose of the invasion was to arrest or recapture him.\nUnder these conditions, does it avail the state to show that such was not in fact, at the moment, the purpose of the deceased?\nIn State v. Middleton, 26 N. M. 353, 192 P. 483, the purpose existed, but, being undisclosed and unknown to the accused, it was held immaterial. The reasoning of that case and the minority view of Judge Brooks, there commended (Earles v. State, 52 Tex. Cr. R. 140, 106 S. W. 138), might justify a conclusion that in law, ds well as in fact, an ostensible purpose to arrest is as effective to provoke heat of passion as an actual purpose.\nWe shall not now decide this point of law. We rest this decision upon the peculiar facts of this record. We do not think this is a case of mistake as to the purpose of the deceased. He had declared appellant under arrest. He had not released him. The evidence for the state does not show any abandonment of purpose. It merely shows that the deceased did not know he was so near its accomplishment. The presumption must be that on entering the house and finding appellant there he would have taken him into custody. The legal provocation given at the schoolhouse was, to all appearance, almost immediately continued at appellant\u2019s home. We do not consider it removed by a mere showing that the attention of the deceased had been temporarily diverted, and that, at the very moment, being ignorant of appellant\u2019s proximity, he did not entertain the purpose he was apparently pursuing.\nFinally, the state contends that the arrest or attempted arrest at the schoolhouse was not illegal. The theory is, that when appellant took the pistol from his wife, he committed a misdemeanor in the presence of the deceased, warranting arrest. We cannot accept this. There is no evidence, and can be no proper inference, that appellant took the pistol for any other purpose than to prevent his wife from firing it. He immediately left and went home.\nWe conclude, therefore, that appellant\u2019s motion to confine the jury\u2019s deliberation to the crime of manslaughter should have been granted.\nThe remaining claims of error relate almost entirely to the instructions given and those refused. We perceive no good purpose in considering them, since, when again tried, this case will necessarily, be presented on a different theory and take a different course.\nWe are constrained to reverse the judgment, and to remand the cause for new trial.\nIt is so ordered.\nSADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.", "type": "majority", "author": "WATSON, Chief Justice." } ], "attorneys": [ "C. R. McIntosh and David Chavez, Jr., both of Santa Fe, and C. H. Allen, for appellant.", "E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State." ], "corrections": "", "head_matter": "19 P.(2d) 744\nSTATE v. KUYKENDALL.\nNo. 3765.\nSupreme Court of New Mexico.\nFeb. 16, 1933.\nRehearing Denied March 20; 1933.\nC. R. McIntosh and David Chavez, Jr., both of Santa Fe, and C. H. Allen, for appellant.\nE. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State." }, "file_name": "0135-01", "first_page_order": 159, "last_page_order": 163 }