{ "id": 2840446, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Frank R. GUTIERREZ, Defendant-Appellant", "name_abbreviation": "State v. Gutierrez", "decision_date": "1975-10-07", "docket_number": "Nos. 1955 and 2047", "first_page": "448", "last_page": "451", "citations": [ { "type": "official", "cite": "88 N.M. 448" }, { "type": "parallel", "cite": "541 P.2d 628" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770586 ], "weight": 2, "year": 1973, "opinion_index": 0, "case_paths": [ "/nm/85/0397-01" ] }, { "cite": "87 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832226 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0397-01" ] }, { "cite": "81 N. M. 274", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5363157 ], "weight": 2, "year": 1970, "opinion_index": 0, "case_paths": [ "/nm/81/0274-01" ] }, { "cite": "78 N.M. 659", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5324629 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0659-01" ] }, { "cite": "81 N.M. 690", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5370144 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0690-01" ] }, { "cite": "85 N.M. 496", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2772204 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/85/0496-01" ] }, { "cite": "17 L.Ed.2d 95", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1966, "opinion_index": 0 }, { "cite": "87 S.Ct. 131", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1966, "opinion_index": 0 }, { "cite": "385 U.S. 867", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11376801, 11376706, 11376610, 11376930, 11376756, 11376982, 11376858, 11376667, 11376542 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/us/385/0867-06", "/us/385/0867-04", "/us/385/0867-02", "/us/385/0867-08", "/us/385/0867-05", "/us/385/0867-09", "/us/385/0867-07", "/us/385/0867-03", "/us/385/0867-01" ] }, { "cite": "76 N.M. 49", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500356 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0049-01" ] }, { "cite": "83 N.M. 269", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335988 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0269-01" ] }, { "cite": "87 N.M. 400", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2830945 ], "weight": 2, "year": 1975, "opinion_index": 0, "case_paths": [ "/nm/87/0400-01" ] }, { "cite": "87 N.M. 434", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2833526 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0434-01" ] }, { "cite": "58 N.M. 324", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587529 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0324-01" ] }, { "cite": "84 N.M. 309", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2770008 ], "weight": 2, "year": 1972, "opinion_index": 0, "case_paths": [ "/nm/84/0309-01" ] }, { "cite": "87 N.M. 242", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2832191 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/87/0242-01" ] }, { "cite": "82 N.M. 235", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334686 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/82/0235-01" ] }, { "cite": "40 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842073 ], "weight": 2, "year": 1936, "opinion_index": 0, "case_paths": [ "/nm/40/0367-01" ] } ], "analysis": { "cardinality": 493, "char_count": 7887, "ocr_confidence": 0.804, "pagerank": { "raw": 2.728852815959044e-07, "percentile": 0.8309482521953983 }, "sha256": "42a0b96cd4f58d4c745bd82c8dc6b77766ed59ea888b04468577282e9c7ac3f7", "simhash": "1:985edcc211639976", "word_count": 1268 }, "last_updated": "2023-07-14T21:34:46.516747+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "HENDLEY and LOPEZ, JJ., concur." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Frank R. GUTIERREZ, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of murder in the second degree, defendant appeals. The issues concern: (1) the sufficiency of the indictment, and (2) refused instructions on \u25a0 (a) insanity; (b) intoxication; and (c) manslaughter.\nSufficiency of the Indictment\nThe indictment charged defendant with murder in the first degree. Defendant claims the indictment was void because he was charged under our general murder statute rather than under a specific statute which covered his crime. The general murder statute is \u00a7 40A-2-1, N.M.S.A. 1953 (2d Repl.Vol. 6). The alleged specific statute is \u00a7 40A-6-l(C), N.M.S.A. 1953 (2d Repl.Vol. 6, Supp.1973). Section 40A-6-l(C), supra, pertains to abuse of a child which results in the child\u2019s death. The essence of defendant\u2019s claim is that in any homicide within the child abuse statute, the killer cannot be tried for first degree murder.\nState v. Blevins, 40 N.M. 367, 60 P.2d 208 (1936) holds that for the specific statute to apply, the specific and general statute must condemn the same offense. Or, as stated in State v. Riley, 82 N.M. 235, 478 P.2d 563 (Ct.App.1970), the same proof is required under either the specific or general statute.\nThe offense of murder and the offense of child abuse resulting in the child\u2019s death are not the same. Nor is the same proof required for the two offenses. Generally speaking, murder requires an intent. See N.M.U.J.I. Criminal, committee commentaries to instructions 2.00 through 2.11. Child abuse does not require an intent. State v. Lucero, 87 N.M. 242, 531 P.2d 1215 (Ct.App.1975). There is no basis for application of the specific versus general statute rule; the indictment was not void.\nRefused Instructions\nDefendant and his wife were having marital difficulties. ' In a telephone conversation, his wife told him that she was leaving him. Defendant replied that if she did he would kill hirflself and the children. After the telephone conversation, defendant kissed his young daughter, picked up his baby boy and slammed the boy\u2019s head against the coffee table twice. The baby\u2019s injuries were extensive and fatal. There is evidence that defendant has sniffed paint for a number of years and had been sniffing paint over a period of three days before killing his baby boy.\n(a) Insanity\nDefendant requested an instruction on defendant\u2019s insanity at the time of commission of the offense. He claims the trial court erred in refusing the request, asserting \u201cthere was evidence of insanity, both expert and lay\u201d.\nFor insanity to exist, there must be a disease of the mind. State v. Chambers, 84 N.M. 309, 502 P.2d 999 (1972); State v. White, 58 N.M. 324, 270 P.2d 727 (1954). White states:\n\u201c . . . the insanity of which we speak does not comprehend an insanity which occurs at a crisis and dissipates thereafter. The insanity of which we speak is a true disease of the mind, normally extending over a considerable period of time, as distinguished from a sort of momentary insanity arising from the pressure of circumstances.\u201d\nState v. Nagel, 87 N.M. 434, 535 P.2d 641 (Ct.App.1975) points out that mental disease includes an abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.\nThe opinion testimony of lay witnesses was admissible on the question of insanity. State v. Lujan, 87 N.M. 400, 534 P.2d 1112 (1975). Their testimony was to the effect that defendant was mentally disturbed, that when committing the offense defendant did not act, or look, normal. Defendant testified that he sniffed paint during periods of stress and when upset, that when he sniffed: \u201cYou don\u2019t know what you\u2019re doing . . . you\u2019re not here in the world, you go off on trips.\u201d This evidence was insufficient to raise a factual issue concerning true disease of the mind and was insufficient to raise a factual issue concerning a substantial impairment of behavior controls. State v. Nelson, 83 N.M. 269, 490 P.2d 1242 (Ct.App.1971); compare State v. Velasquez, 76 N.M. 49, 412 P.2d 4 (1966), cert. denied, 385 U.S. 867, 87 S.Ct. 131, 17 L.Ed.2d 95 (1966).\nThe psychiatrist testified that defendant had no organic brain damage and that he found no evidence of psychological damage. He testified that defendant\u2019 history of paint sniffing included instances when defendant would become violent and \u201cfeel that devils were chasing him\u201d. However, in connection with the killing of the baby boy, the psychiatrist was of the opinion defendant knew what he was doing when he did it; that it was an impulsive act. This evidence was insufficient to raise a factual issue concerning a true disease of the mind and insufficient to raise a factual issue as to substantial impairment of behavior controls. See State v. Velasquez, supra.\nThe trial court did not err in refusing the requested insanity instruction. Compare State v. Madrigal, 85 N.M. 496, 513 P.2d 1278 (Ct.App.1973); State v. Follis, 81 N.M. 690, 472 P.2d 655 (Ct.App.1970); State v. Lucero, 78 N.M. 659, 436 P.2d 519 (Ct.App.1968).\n(b) Intoxication\nDefendant requested instructions to the effect that if defendant was so intoxicated (from the paint sniffing) that he was incapable of malice, he could not be guilty of murder in the second degree. The requests were correctly refused for the reasons stated in State v. Tapia, 81 N. M. 274, 466 P.2d 551 (1970). He claims the Tapia rule presents \u201cserious federal constitutional questions\u201d and his argument is that due process was violated in refusing an instruction that intoxication would negate malice. The trial court refused the instructions on the basis of New Mexico law. No constitutional claim was raised in the trial court. It will not be considered for the first time on appeal. Section 21-12-11, N.M.S.A.1953 (Interim Supp.1974).\n(c) Manslaughter\nDefendant requested instructions on manslaughter as a lesser included' offense. The right to instructions on lesser included offenses depends on there being some evidence tending to establish the lesser offenses. State v. Wingate, 87 N.M. 397, 534 P.2d 776 (Ct.App.1975).\nThe manslaughter statute is \u00a7 40A-2-3, N.M.S.A.1953 (2d Repl.Vol. 6). Voluntary manslaughter requires a killing \u201cupon a sudden quarrel or in the heat of passion.\u201d There is no evidence that such a condition existed between defendant and his baby boy. The only evidence of quarrel or heat of passion is between defendant and his wife. Defendant states, without citation: \u201cThe weight of authority is against allowing transferrance of one\u2019s passion from the object of the passion to a related bystander, however.\u201d We accept this statement. There was no evidence tending to establish voluntary manslaughter.\nInvoluntary manslaughter requires a killing either \u201cin the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death . . . .\u201d Inflicting a beating is an unlawful act. State v. Holden, 85 N.M. 397, 512 P.2d 970 (Ct.App. 1973). Accordingly, there is no basis for an instruction on involuntary manslaughter by lawful act. It is not seriously contended that defendant\u2019s unlawful act did not amount to a felony. Accordingly, there is no basis for an instruction on involuntary manslaughter by unlawful act not amounting to a felony.\nThe trial court did not err in refusing the requested manslaughter instructions.\nOral argument is unnecessary. The judgment and sentence are affirmed.\nIt is so ordered.\nHENDLEY and LOPEZ, JJ., concur.", "type": "majority", "author": "WOOD, Chief Judge." } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Reginald J. Storment, Asst. App. Defender, Santa Fe, for defendant-appellant.", "Toney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "541 P.2d 628\nSTATE of New Mexico, Plaintiff-Appellee, v. Frank R. GUTIERREZ, Defendant-Appellant.\nNos. 1955 and 2047.\nCourt of Appeals of New Mexico.\nOct. 7, 1975.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, App. Defender, Reginald J. Storment, Asst. App. Defender, Santa Fe, for defendant-appellant.\nToney Anaya, Atty. Gen., Jay F. Rosen-thal, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0448-01", "first_page_order": 478, "last_page_order": 481 }