{ "id": 1590374, "name": "STATE of New Mexico, Plaintiff-Appellee, v. James Larry UPTON, Defendant-Appellant", "name_abbreviation": "State v. Upton", "decision_date": "1955-09-23", "docket_number": "No. 5912", "first_page": "205", "last_page": "216", "citations": [ { "type": "official", "cite": "60 N.M. 205" }, { "type": "parallel", "cite": "290 P.2d 440" } ], "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": "34 L.R.A.,N.S., 1115", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "135 S.W. 327", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "124 Tenn. 81", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8535606 ], "opinion_index": 0, "case_paths": [ "/tenn/124/0081-01" ] }, { "cite": "3 A.L.R. 83", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "176 P. 819", "category": "reporters:state_regional", "reporter": "P.", "pin_cites": [ { "page": "822" } ], "opinion_index": 0 }, { "cite": "25 N.M. 48", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4735332 ], "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/nm/25/0048-01" ] }, { "cite": "58 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587529 ], "weight": 2, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/nm/58/0324-01" ] }, { "cite": "56 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584756 ], "weight": 7, "opinion_index": 0, "case_paths": [ "/nm/56/0583-01" ] }, { "cite": "110 P. 854", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "15 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 206030 ], "opinion_index": 0, "case_paths": [ "/nm/15/0556-01" ] }, { "cite": "57 N.M. 716", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843421 ], "weight": 2, "pin_cites": [ { "page": "721" } ], "opinion_index": 0, "case_paths": [ "/nm/57/0716-01" ] }, { "cite": "57 N.M. 257", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8841670 ], "weight": 2, "pin_cites": [ { "page": "262-263" } ], "opinion_index": 0, "case_paths": [ "/nm/57/0257-01" ] }, { "cite": "52 N.M. 118", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1579505 ], "weight": 2, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/nm/52/0118-01" ] }, { "cite": "54 N.M. 189", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582001 ], "weight": 2, "pin_cites": [ { "page": "191-192" } ], "opinion_index": 0, "case_paths": [ "/nm/54/0189-01" ] }, { "cite": "174 P. 740", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "24 N.M. 405", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8512758 ], "pin_cites": [ { "page": "407-408" } ], "opinion_index": 0, "case_paths": [ "/nm/24/0405-01" ] }, { "cite": "1 N.M. 238", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8300713 ], "pin_cites": [ { "page": "245, 246" } ], "opinion_index": 0, "case_paths": [ "/nm/1/0238-01" ] }, { "cite": "1 N.M. 125", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8300668 ], "pin_cites": [ { "page": "131" } ], "opinion_index": 0, "case_paths": [ "/nm/1/0125-01" ] }, { "cite": "1 N.M. 97", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8300659 ], "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/nm/1/0097-01" ] }, { "cite": "48 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560822 ], "weight": 2, "pin_cites": [ { "page": "88" }, { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/nm/48/0084-01" ] }, { "cite": "43 L.R.A.,N.S., 150", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 1 }, { "cite": "18 L.R.A. 224", "category": "reporters:federal", "reporter": "L.R.A.", "opinion_index": 1 }, { "cite": "110 A.L.R. 1", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "40 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842156 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/40/0397-01" ] }, { "cite": "58 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587529 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/58/0324-01" ] }, { "cite": "56 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584756 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/56/0583-01" ] }, { "cite": "110 P. 854", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 1 }, { "cite": "15 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 206030 ], "opinion_index": 1, "case_paths": [ "/nm/15/0556-01" ] } ], "analysis": { "cardinality": 1075, "char_count": 22474, "ocr_confidence": 0.682, "pagerank": { "raw": 5.053847979392664e-07, "percentile": 0.9372658405953397 }, "sha256": "ee663267b4edd2311db9855d003dc457875dd4129e20c91ad3f042ee4c6c0991", "simhash": "1:8fee7e227e550dff", "word_count": 3912 }, "last_updated": "2023-07-14T22:29:04.217233+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LUJAN and McGHEE, JJ., concur.", "SADLER, J\u201e and COMPTON, C. J., concurring specially.", "COMPTON, C. J., concurs.", "COMPTON, C. J., and LUJAN, SAD-LER, McGHEE and KIKER, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. James Larry UPTON, Defendant-Appellant." ], "opinions": [ { "text": "KIKER, Justice.\nThis is an appeal from a conviction of murder in the first degree for which a sentence of death by electrocution has been imposed. Appellant bases his appeal upon three grounds which will be set out and determined after the facts are briefly stated.\nOn September 10, 1954, 'James Larry Upton, the appellant, was hitchhiking from Nowata, Oklahoma, 'to Los Angeles, California. At about eight-thirty that morning he was picked up on the outskirts of Amarillo, Texas by an Air Force Corporal, Donald T. Dilley, who was driving to Salt Lake City, Utah, by way of Albuquerque, New Mexico. Upton and Cpl. Dilley continued on Highway 66 toward Albuquerque through the course of the morning, stopping once to- change a flat tire, and again, so that Cpl. Dilley might purchase gasoline. At about one-thirty in the afternoon, when they were approximately four and one-half miles east of Albuquerque on Highway 66, Upton drew a pistol from a package that he had on the seat beside him and ordered Cpl. Dilley to stop the car. Instead of stopping, Cpl. Dilley speeded up. Upon a further warning from Upton, Cpl. Dilley grabbed the keys from the ignition switch and threw them from the car\u2019s window. Then he stopped the car across the highway pointing south with the rear wheels on the highway divider and the front of the car in the east bound traffic lane. Upton shot Cpl. Dilley four times with a .38 caliber revolver. Upton got out of the car and Cpl. Dilley, still alive, slumped behind the wheel. The car began to roll south, off the highway, carrying Cpl. Dilley with it, and came to rest in an arroyo some forty feet from the highway. Cpl. Dilley was thrown out and lay on the left side of the automobile. Upton remained on the highway and waved various vehicles on, then he fled up a canyon north of the highway where he was arrested about two hours later.\nAppellant\u2019s first contention is that the court below- erred.in., refusing his motion for a mistrial, which motion was based on an alleged statement by a witness for the state to the effect that the appellant had been arrested for other crimes prior to the crime for which he was being tried. This argument constitutes an attack upon the accuracy of the record.\nAppellant made no direct attack upon the record as, for example, by recalling the witness and questioning him as to what he had said; but simply sets forth in his-brief his recollection of the witness\u2019s answer, as follows:\n\u201cA. In explaining different situations he laughed or made light of them \u2014 he\u2014not necessarily concerning this incident, but other things. I asked him about his life; the other situations in which he had been arrested * * * and * * * \u201d (Emphasis by the court.)\nThe record, however, shows the witness making the following statement:\n\u201cA. In explaining different situations he laughed or made light of them \u25a0 \u2014 he\u2014not necessarily concerning this incident but other things, I asked him about his life; the situation in which he had been arrested * * * and * * * \u201d (Emphasis by the court.)\nThe record furnishes no foundation for appellant\u2019s motion; to hold with him we would have to repudiate the record and accept appellant\u2019s recollection of the witness\u2019s statement. Language used by us in State v. Beal, 1944, 48 N.M. 84, 88, 146 P.2d 175, 178, is pertinent here:\n\u201cThe veracity of neither court nor counsel is * * * involved. It is purely a matter of correctly recalling what transpired, yet so grave a case as this may not be decided upon the memory of those present at the trial. We are bound to consider the case, as presented here, upon the record made in the trial of the case.\u201d\nWe have said many times in varying situations that we are limited to a consideration of the certified record. See Waldo v. Beckwith, 1854, 1 N.M. 97, 102; Pino v. Hatch, 1855, 1 N.M. 125, 131; Sanchez v. Luna, 1857, 1 N.M. 238, 245, 246; State v. Smith, 1918, 24 N.M. 405, 407-408, 174 P. 740; State v. Edwards, 1950, 54 N.M. 189, 191-192, 217 P.2d 854. It follows that we must presume that record to be true and accurate. Adoption of a contrary rule would disrupt the orderly administration of justice without enuring to the slightest substantive benefit of anyone. Since the record is conclusive on us and there is no basis in the record for appellant\u2019s motion for a mistrial we cannot say that the trial court erred in denying that motion.\nAppellant\u2019s second contention is that the trial court erred in the admission of two enlarged photographs of the deceased. One of the photographs is a view of the back of deceased\u2019s naked body showing the wounds after they had been cleaned. The other is a view of the front of decedent\u2019s body from the hips up showing the wounds, before they were cleaned. These photographs were admitted shortly after the admission of a photograph of the deceased, taken while he was alive, dressed in the uniform of the Air Force. Appellant urges that these photographs are inherently, and by virtue of the sequence of their admission, gruesome and inflammatory and rendered the jury emotionally incapable of hearing the case impartially; he urges that his judicial admission of the nature and location of the wounds and his offer to stipulate that deceased was shot in the back dissipated the grounds for admission of the photographs; he urges that the photographs are of slight probative value and are cumulative.\nThe controlling principle may be stated as follows: Photographs which are calculated to arouse the prejudices and passions of the jury and which are not reasonably relevant to the issues of the case ought to be excluded.\nWe have examined the photographs involved in the instant case; we do not find them gruesome or inflammatory nor do we think the sequence of their introduction lent to them qualities which they do not inherently possess.\nA judicial admission has been said to do away with the necessity of proof by the benefiting' party. 9 Wigmore on Evidence, Sec. 2591 (3d Ed.1940), see also the same work Sections 1058 and 2588. Appellant here made a judicial admission of the nature and location of the wounds and offered to stipulate that the deceased was shot in the back. Appellant did not, by this admission, relieve the state of its entire burden of proof, for appellant still stood on his plea of \u201cNot Guilty and Not Guilty By Reason of Insanity\u201d1. We think the photographs were admissible for the purpose of clarifying and illustrating the testimony of witnesses, for proving the corpus delicti, and for the purpose of corroborating the identity of the deceased. We have held that photographs which may be characterized as cumulative evidence are properly admitted if they serve to corroborate other evidence. State v. Jones, 1948, 52 N.M. 118, 123, 192 P.2d 559; State v. Horton, 1953, 57 N.M. 257, 262-263, 258 P.2d 371; State v. Johnson, 1953, 57 N.M. 716, 721, 263 P.2d 282. In the latter case we also held, 57 N.M. at page 721, 263 P. 2d at page 285, that,\n\u201cThe admission of photographs rests largely in the discretion of the trial court and ordinarily his decision will not be disturbed.\u201d\nFor the foregoing reasons we cannot say here that the lower court abused its discretion in the admission of these photographs.\nAppellant\u2019s third\u2019 contention' is:'\n\u201cThat the defendant was wrongfully brought to trial when his mental condition at the time of trial was of such a nature, based on the imcontradicted testimony of a qualified psychiatrist, as to render him incapable through mental defect of conducting his defense.\u201d\nOur statute, Section 41-13-3, NM SA 1953, as construed in Territory v. Kennedy, 1910, 15 N.M. 556, 110 P. 854, and in State v. Folk, 1952, 56 N.M. 583, 247 P.2d 165, shields and protects persons who are insane. Proof of defendant\u2019s \u201cinsanity\u201d or \u201cmental disorder\u201d is necessary in order to bring the defendant within the shelter of the statute. Once this condition: insanity, has been established, our statute offers protection to defendants in two situations.\nOne: Where the defendant is insane at the time of the commission of the crime. The proper inquiry here is the M\u2019Naghten rule as extended by State v. White, 1952, 58 N.M. 324, 330, 270 P.2d 727, 731:\n\u201c \u2018 \u201cThe jury must be satisfied that, at the time of committing the act, the accused, as a result of disease of the mind * * * (a) \u2019 did not know the nature and quality of the act or (b) did not know that it was wrong or (c) was incapable of preventing himself from committing it.\u201d \u2019 \u201d\nThis inquiry goes to the responsibility of the accused for his alleged criminal act and may. affect the decision as to accused\u2019s guilt or innocence.\nTwo: Where the defendant is insane at the time of arraignment, trial, judgment or execution. The proper inquiry here is:\n\u201cHas the defendant capacity to understand the nature and object of the proceedings against him, to comprehend his own condition in reference to such proceedings, and to make a rational defense?\u201d Weihofen, Mental Disorder as a Criminal Defense, at page 431; see also State v. Folk, cited supra, 56 N.M. at page 592, 247 P.2d 165.\nThis inquiry goes solely to the propriety of proceeding against accused during the existence of such condition.\nIt is on Number Two, insanity at the time of trial, that appellant rests his contention. We stated the universal rule applicable here in In re Smith, 1918, 25 N.M. 48, 56, 176 P. 819, 822, 3 A.L.R. 83:\n\u201cAll the courts hold * * * that the common law forbids the trial * * * of an insane person for a crime while he continues in that state. \u2021 \u00ed}C W\nThe reason for this rule is set out in Jordan v. State, 124 Tenn. 81, 135 S.W. 327, 34 L.R.A.,N.S., 1115, which we quoted approvingly in State v. Folk, cited supra, 56 N.M. at page 592, 247 P.2d at page 170:\n\u201c \u2018 \u201cIt would be inhuman, and to a certain extent a denial of the right of trial upon the merits, to require one who has been disabled by the act of God from intelligently making his defense to plead or be tried for his life or liberty. There may be circumstances in all cases of which the defendant alone has knowledge, which may prove his innocence, the advantage of which, if insane to such an extent that he did not appreciate the value of such facts, or the propriety of communicating them to his counsel, he would be deprived.\u201d \u2019 \u201d\nIn the instant case appellant, prior to trial, moved for a continuance on the ground that he was presently insane; the trial court after hearing testimony, denied this motion. We address ourselves, first, to the question: Did the trial court abuse its discretion in denying the motion for a continuance?\nIn State v. Folk, cited supra, 56 N.M. at page 592, 247 P.2d at page 171, we said:\n\u201cIt is * * * (the trial court\u2019s) province to rule whether or not a reasonable doubt can be said to exist as to the sanity of an accused, and this determination will not be lightly overturned. All the authorities recognize the issue must he raised in good faith and supported by a showing sufficient to create a reasonable doubt as to the sanity of an accused.\u201d (Parenthetical insertion by the court.)\nThe only testimony offered in support of the motion for a continuance was that of a doctor of medicine specializing in nervous and mental disease. The pertinent portion of this testimony is set out below.\n\u201cQ. You believe that this man can tell the truth in order to help himself? A. I don\u2019t believe he can tell the truth at all to help himself or to injure himself. He is a pathological liar. He won\u2019t tell the truth even if it would help him.\n\u201cMr. Hurley: I have no further questions.\n\u201cThe Court: What is the basis of your motion?\n\u201cMr. Hurley: That he is a pathological liar, Sir; that he has a mental \u25a0disease and he can\u2019t tell the truth even if it would help him and for that reason it is impossible for him and he cannot conduct his own defense.\n\u201cThe Court: Is this man insane at this time, Doctor Stewart? A. No, Sir, he is not.\n\u201cThe Court: Is his mind so affected that he can\u2019t cooperate with counsel and prepare his defense ? A. He can cooperate with him and he will cooperate with him when it is to his comfort, but he asked me a different type of question. This man can cooperate but he sees no reason why he should because he is a psychopathic \u2014 he is a constitutional psychopathic inferior person. He\u2019s born with a defect of moral appreciation here \u2014 his conflict with society is where it comes in. He sees no reason- \u2014 -he is right and society is wrong. He is perfectly sane and competent under the eyes of the law and in any psychiatric examination. * * * \u201d\n\u201cThe Court: Very well. I will deny the motion and proceed with this trial in the big courtroom and we will commence impaneling a jury * * *\u201d\nIt is clear from the testimony above quoted that appellant failed to establish the condition requisite to bring himself within the protection of the statute: insanity. To the court\u2019s question \u201cIs this man insane at this time, Doctor Stewart\u201d the doctor responded with an unequivocal \u201cNo, Sir, he is not.\u201d It is, therefore, unnecessary to attempt to reconcile the doctor\u2019s two seemingly contradictory statements regarding defendant\u2019s ability to tell the truth and thus aid in his own defense. Appellant\u2019s argument here is in the nature of an attempt to secure the application of the language of the rule of inquiry without bringing defendant within the statute by proving his insanity; the statute is not susceptible to such interpretation. It is to be noted that appellant does not attack the constitutionality of the statute. We conclude that the trial court did not abuse its discretion in denying appellant\u2019s motion for a continuance.\nWe are, further, of the opinion that appellant has placed himself in such a position that he cannot be heard to complain of the trial court\u2019s denial of his motion for a continuance.\nSection 41-13-3, NMSA 1953, as construed in Territory v. Kennedy, cited supra, and State v. Folk, cited supra, outlines the rights of defendants claiming insanity at the time of trial:\n1.) No particular method of bringing the question of defendant\u2019s present sanity to the attention of the trial court is required. 2.) Once the issue has been raised the trial court is under a duty to inquire into the matter. 3.) The trial court must rule as to whether a reasonable doubt exists as to the sanity of the accused. 4.) If the trial court rules affirmatively the issue must be submitted to the jury for determination.\nIn the instant case the issue was brought to the attention of the lower court prior to commencement of trial by motion for a continuance on the ground that accused was presently insane and so unable to make a rational defense. The lower court heard expert testimony on the issue and denied the motion, thus in effect ruling that no reasonable doubt existed as to the present sanity of the accused. Having rule negatively, there was no duty on the trial court to submit the issue to the jury. Let us assume for the moment, however, that which we have already determined to the contrary, that is: that the trial court was in error in denying appellant\u2019s motion for a continuance, that there was established a reasonable doubt as to appellant\u2019s present sanity. The only absolute right the accused would then have had under our statute as construed, would have been to have the question presented to the jury. At the close of the trial in the instant case the lower court offered to send to the jury the question of the present sanity of the accused;\u25a0 accused specifically requested that the question not be submitted to the jury. Thus the trial court made available to the accused every right guaranteed him \u2014 and more. The accused, having refused the trial court\u2019s offer, cannot be heard now to complain.\nTJie judgment of the lower court will be affirmed, and It Is So Ordered.\nLUJAN and McGHEE, JJ., concur.\nSADLER, J\u201e and COMPTON, C. J., concurring specially.", "type": "majority", "author": "KIKER, Justice." }, { "text": "SADLER, Justice\n(concurring in the result but dissenting in part).\nI concur in the foregoing opinion, except in one particular, namely, the approval therein of the extension by the majority in State v. White, 58 N.M. 324, 270 P.2d 727, of the McNaghten rule, the time honored test of criminal responsibility, when insanity is a defense. The so-called McNaghten, or \u201cright and wrong,\u201d test had received our approval in Territory v. Kennedy, 15 N.M. 556, 110 P. 854; State v. Roy, 40 N.M. 397, 60 P.2d 646, 110 A.L.R. 1, and State v. Folk, 56 N.M. 583, 247 P.2d 165. As stated in my dissenting opinion in State v. White, supra, whatever the difference between the extension of that test made in State v. White and the generally repudiated doctrine of \u201cirresistible impulse,\u201d it is so shadowy as to be beyond lucid statement or clear differentiation.\nThe \u201cright and wrong\u201d rule, the ability to distinguish the one from the other and to comprehend that the act about to be committed is wrong, has been tested in the crucible of time and experience and found not wanting. I am reluctant to see its effect destroyed by the so-called extension. I look forward to the day when we shall return to it. If a man knows right from wrong and deliberately does the wrong, he is responsible. It should be no defense that an irresistible impulse moved him so to act, or to plead that, though knowing the act to be wrong, he was helpless to avoid doing it. \u25a0 Annotations 18 L.R.A. 224 and 43 L.R.A.,N.S., 150. If these observations will hold open the door against the day we are moved to' favor again the old test, they have not been in vain.\nSince the approval given the extension mentioned in the White case in no manner affects the result reached herein, I join in an affirmance of the judgment reviewed.\nCOMPTON, C. J., concurs.\nOn Motion for Rehearing\nPER CURIAM.\nPoint one of the motion was fully covered in the opinion at pag'es three and four.\nPoint two of the motion was fully covered in the opinion at pages five, six and seven.\nRegarding Point Three of the motion r On September 20, 1954, defendant entered a plea of not guilty. The case was called for trial on October 11, 1954, the district' attorney being present and defendant being-present with his attorneys. Both the state and the defendant by their respective attorneys announced that they were ready for trial whereupon defendant, by his attorneys, moved for a continuance on the ground of -incompetency of defendant. The court, without a jury, then heard testimony of Dr. A. B. Stewart with direct examination by defendant\u2019s attorney. The doctor declared the defendant was not insane. Defendant offered no further testimony and the court overruled the motion. Thereupon defendant changed his plea so that it became a plea of not guilty and not guilty by reason of insanity. Throughout the record, except for testimony of the officers connected with the arrest of defendant and those who had him in custody, there is much evidence which evidently is intended to show that defendant was in such condition that he had not been since his early years, mentally sound. His mother was called to testify and did testify of the hardships he had suffered as a boy and the peculiarities of his conduct. It was shown that he had been frequently incarcerated both in reform school and in California penal institutions and several times had been sent from such institutions to another for observation as to his mental condition. The climax of all this came when Dr. Jacobsen testified. This psychiatrist was called as a witness for the defendant and testified on examination of the court:\n\u201cThe Court: Doctor, I believe your diagnosis was \u2014 constitutional psychopathic personality.\n\u201cA. That is right.\n\u201cThe Court: What is your finding, with psychosis' or without psychosis ?\n\u201cA. Without psychosis.\n\u201cThe Court: That, is a psychiatric way of saying the person is sane?\n\u201cA. That is a term we use to \u2019show that he does not possess psychotic mental illness, that is correct.\u20191\u2019 \u2022\nThen the doctor testified :\n\u201cMr. Tackett: Doctor, as a result of your examination could you tell the jury and Court whether or not the defendant is sane or insane as of today?\n\u201cA. I feel * * * my feeling would'be that this individual within the meaning of the terms, sanity or insanity ; that this individual is sane and competent; knows the difference between right and wrong and that he possesses, again, the abstract ability to act upon that recommendation. * * *\n\u201cThe Court: Doctor, would you say that the defendant Upton was sane or insane on September 10, 1054?\n\u201cA. I would say he was sane at that time.\u201d\nWe quote again:\n\u201cThe Court: Doctor, this defendant, you stated, knows the difference between right and wrong; does he have the mental capacity to adhere to the right, if he desires ?\n\u201cA. I would say that he does, your Honor.\n\u201cThe Court: Is he working under any uncontrollable impulse ?\n\u201cA. No.\u201d \u2022 \u2022\nThe whole of the doctor\u2019s testimony indicates that defendant was sane \u00e1t the time of the homicide and at the time of trial.\nThere is much evidence in the record to justify the court in instructing the jury as to insanity at the time of trial, in fact it is seriously doubted that defendant could at any time before any jury have had any more or better evidence than appears in this record to support the theory of present insanity.\nDoubtless it is true that if the court had been in doubt as to defendant\u2019s sanity when that question was first presented, he might have submitted the question of the present sanity to a jury with nothing else to consider. There is no requirement of law that the judge should do so and since he concluded, on such evidence as defendant offered, that no doubt of the sanity of defendant existed he had the authority to overrule the motion. As said in the original opinion his offer, because of the state of the record, to submit to the jury the question of the present sanity of defendant was more than defendant was entitled to have. The defendant expressed the desire not to have such instructions given and the court, accordingly, instructed on insanity at the time of the homicide.\nThe motion for rehearing should be and is denied\nIt is so ordered.\nCOMPTON, C. J., and LUJAN, SAD-LER, McGHEE and KIKER, JJ., concur.", "type": "concurring-in-part-and-dissenting-in-part", "author": "SADLER, Justice PER CURIAM." } ], "attorneys": [ "Wilson P. Hurley, Morgan S. White, Albuquerque, for appellant.", "Richard H. Robinson, Atty. Gen., Fred M. Standley and W. R. Kegel, Ass\u2019t Attys. Gen., for appellee." ], "corrections": "", "head_matter": "290 P.2d 440\nSTATE of New Mexico, Plaintiff-Appellee, v. James Larry UPTON, Defendant-Appellant.\nNo. 5912.\nSupreme Court of New Mexico.\nSept. 23, 1955.\nRehearing Denied Nov. 21, 1955.\nWilson P. Hurley, Morgan S. White, Albuquerque, for appellant.\nRichard H. Robinson, Atty. Gen., Fred M. Standley and W. R. Kegel, Ass\u2019t Attys. Gen., for appellee." }, "file_name": "0205-01", "first_page_order": 229, "last_page_order": 240 }