{ "id": 2867174, "name": "Antonio Chuck SMITH, Petitioner, v. STATE of New Mexico, Respondent", "name_abbreviation": "Smith v. State", "decision_date": "1976-12-27", "docket_number": "No. 11007", "first_page": "770", "last_page": "777", "citations": [ { "type": "official", "cite": "89 N.M. 770" }, { "type": "parallel", "cite": "558 P.2d 39" } ], "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": "385 U.S. 39", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11334139 ], "weight": 3, "year": 1966, "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/us/385/0039-01" ] }, { "cite": "391 U.S. 596", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767668 ], "weight": 3, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/391/0596-01" ] }, { "cite": "362 U.S. 199", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6162984 ], "weight": 3, "year": 1960, "opinion_index": 0, "case_paths": [ "/us/362/0199-01" ] }, { "cite": "30 L.Ed.2d 25", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1971, "opinion_index": 0 }, { "cite": "92 S.Ct. 10", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1971, "opinion_index": 0 }, { "cite": "404 U.S. 1232", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6483426 ], "year": 1971, "pin_cites": [ { "page": "1233" } ], "opinion_index": 0, "case_paths": [ "/us/404/1232-01" ] }, { "cite": "414 U.S. 478", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11716138 ], "weight": 6, "year": 1974, "pin_cites": [ { "page": "480" }, { "page": "665" }, { "page": "669" } ], "opinion_index": 0, "case_paths": [ "/us/414/0478-01" ] }, { "cite": "397 U. S. 358", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054393 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/397/0358-01" ] }, { "cite": "61 N.M. 42", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5318487 ], "weight": 3, "year": 1956, "opinion_index": 0, "case_paths": [ "/nm/61/0042-01" ] }, { "cite": "67 N.M. 260", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2716134 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0260-01" ] }, { "cite": "79 N.M. 640", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747016 ], "weight": 2, "year": 1968, "opinion_index": 0, "case_paths": [ "/nm/79/0640-01" ] }, { "cite": "54 N.M. 112", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582038 ], "weight": 3, "year": 1949, "opinion_index": 0, "case_paths": [ "/nm/54/0112-01" ] }, { "cite": "79 N.M. 282", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2747125 ], "weight": 5, "year": 1968, "pin_cites": [ { "page": "286" }, { "page": "598" } ], "opinion_index": 0, "case_paths": [ "/nm/79/0282-01" ] }, { "cite": "114 P. 449", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "62 Wash. 635", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 613099 ], "opinion_index": 0, "case_paths": [ "/wash/62/0635-01" ] }, { "cite": "111 P. 769", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "60 Wash. 542", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 529758 ], "opinion_index": 0, "case_paths": [ "/wash/60/0542-01" ] }, { "cite": "39 L.R.A.,N.S., 611", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "122 Pac. 995", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "68 Wash. 194", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 563360 ], "opinion_index": 0, "case_paths": [ "/wash/68/0194-01" ] }, { "cite": "21 A.L.R. 579", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1922, "pin_cites": [ { "page": "588-589" } ], "opinion_index": 0 }, { "cite": "203 P. 840", "category": "reporters:state_regional", "reporter": "P.", "year": 1921, "opinion_index": 0 }, { "cite": "27 N.M. 576", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842996 ], "year": 1921, "opinion_index": 0, "case_paths": [ "/nm/27/0576-01" ] }, { "cite": "75 P. 31", "category": "reporters:state_regional", "reporter": "P.", "year": 1904, "pin_cites": [ { "page": "32" } ], "opinion_index": 0 }, { "cite": "12 N.M. 99", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4674676 ], "year": 1904, "pin_cites": [ { "page": "104-105" } ], "opinion_index": 0, "case_paths": [ "/nm/12/0099-01" ] }, { "cite": "35 P.2d 285", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 1455388, 1559221 ], "weight": 2, "year": 1934, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/okla-crim/56/0139-01", "/nm/38/0462-01" ] }, { "cite": "38 N.M. 462", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559221 ], "weight": 2, "year": 1934, "pin_cites": [ { "page": "470" } ], "opinion_index": 0, "case_paths": [ "/nm/38/0462-01" ] }, { "cite": "89 N.M. 779", "category": "reporters:state", "reporter": "N.M.", "opinion_index": 0 }, { "cite": "203 P. 846", "category": "reporters:state_regional", "reporter": "P.", "weight": 3, "year": 1921, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "27 N.M. 594", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8843029 ], "weight": 3, "year": 1921, "pin_cites": [ { "page": "601, 603" } ], "opinion_index": 0, "case_paths": [ "/nm/27/0594-01" ] }, { "cite": "558 P.2d 46", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 2867032 ], "weight": 3, "pin_cites": [ { "page": "48" } ], "opinion_index": 0, "case_paths": [ "/nm/89/0777-01" ] } ], "analysis": { "cardinality": 937, "char_count": 22845, "ocr_confidence": 0.829, "pagerank": { "raw": 6.558258592448725e-07, "percentile": 0.9612732248096317 }, "sha256": "5d4eb631f9b536de14fcc626268abecf98301ec2999adef885f07c5fa5f1f47c", "simhash": "1:3dfedfa735468053", "word_count": 3883 }, "last_updated": "2023-07-14T20:56:52.908635+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "OMAN, C. J., and McMANUS and SOSA, JJ., concur.", "EASLEY, J., not participating." ], "parties": [ "Antonio Chuck SMITH, Petitioner, v. STATE of New Mexico, Respondent." ], "opinions": [ { "text": "OPINION\nMONTOYA, Justice.\nThis cause is before us on a writ of certiorari directed to the New Mexico Court of Appeals in State v. Smith (filed May 18, 1976), 90 N.M. -, 558 P.2d 46 (Ct.App.1976), which affirmed a conviction of defendant for the crime of voluntary manslaughter.\nThe pertinent facts, as set forth in-the opinion of the Court of Appeals in State v. Smith, supra, are as follows :\n\u201cDefendant, Weaver and Starke picked up the female victim in Hobbs, New Mexico. They went to a home in Eunice, New Mexico and obtained a bedspread. They then drove to an oil well meter site. Weaver attempted to have sexual intercourse with the victim but was unable to do so. Defendant then had sexual intercourse with the victim. Starke then engaged in an act of sodomy with the victim. The sodomy \u2018kind of made . . . [Weaver] sick\u2019 so he hit the victim on the face and then returned to the car. While at the car Weaver heard a thud. Starke had a piece of pipe or fence, and the victim was lying on the ground, not moving. Starke admitted that he hit the victim. Either Starke or defendant or both removed a chain from the car. The chain was wrapped around the upper part of the victim\u2019s body; Starke and the defendant played tug of war with the chain. The chain was subsequently removed and the victim was \u2018folded up in the trunk\u2019 of the car. Blood, hair and the victim\u2019s clothes were subsequently found at the meter site.\n\u201cStarke drove the car to an oil well slush pit tank. The three men removed the victim from the trunk of the car and threw the victim into the tank. The victim was still alive. Both Weaver and Starke got into the tank, which contained approximately 14 inches of an \u2018oil substance\u2019. Weaver stood and Starke sat on the victim. Subsequently defendant, who was on the ladder of the tank, helped Starke climb out of the tank. There is medical evidence that the victim was dying of her injuries before being placed in the tank and, also, that death resulted from drowning in oil.\n\u201cBoth Weaver and Starke pled guilty to second degree murder. In defendant\u2019s, trial the jury was instructed on first and second degree murder and voluntary manslaughter. The evidence would have sustained a conviction of either degree of murder but the jury acquitted defenant of murder charges. The conviction was for voluntary manslaughter.\u201d\nThe defendant had appealed his conviction to the Court of Appeals claiming that the evidence was insufficient to sustain a conviction of manslaughter; that there was no evidence of provocation, or of the absence of malice. He also claimed error in the court\u2019s instruction, being N.M.U.J.I. Crim. 2.20.\nThe Court of Appeals, in its opinion, upheld the challenged jury instruction and specifically held that provocation is not an element of voluntary manslaughter. It also relied on ch. 199, \u00a7 1, [1937] N.M. Laws 522, which permits the conviction of a lesser degree, even though the evidence shows the accused to be guilty of a higher degree of homicide.\nThe issues presented for review are as follows:\n(1) Whether a conviction for voluntary manslaughter may validly be sustained when the defendant was acquitted of second degree murder and the record does not contain any evidence that the defendant acted upon a sudden quarrel or in the heat of passion, or upon such provocation that would reduce the degree of homicide from murder to manslaughter. Resolution of this major issue depends in part upon resolution of the subordinate questions of:\n(a) whether ch. 199, \u00a7 1 [1937] N.M. Laws 522, may constitutionally be applied to uphold a conviction for one degree of an offense when the evidence shows guilt of a higher degree, and\n(b) whether N.M.U.J.I.Crim. 2.20, to the extent that it allows conviction of manslaughter if the jury has a \u201creasonable doubt as to whether\u201d the defendant acted as a result of sufficient provocation rather than requiring proof beyond a reasonable doubt, violates due process of law.\nWe first consider whether it was proper to submit the issue of voluntary manslaughter to the jury when there is no evidence of a sudden quarrel or heat of passion, as is required by the statutory definition of that offense.\nSection 40A-2-3, N.M.S.A.1953 (2d Repl.Vol. 6, 1972), reads in pertinent part:\n\u201cManslaughter is the unlawful killing of a human being without malice.\n\u201cA. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.\u201d\nIt follows logically and obviously from the definition that, in order to convict of voluntary manslaughter, the jury must have evidence that there was a sudden quarrel or heat of passion at the time of the commission of the crime (in order, under the common law theory, to show that the killing was the result of provocation sufficient to negate the presumption of malice; see, e. g., R. Anderson, Wharton\u2019s Criminal Law and Procedure \u00a7 242 at 522 (1957)).\nThe transcript of record is barren of any such evidence of provocation. Neither party contends that there was any sudden quarrel or heat of passion of any kind involved in the circumstances surrounding the killing in this case. In fact, the Court of Appeals admitted that \u201c[t]he evidence in this case is that defendant\u2019s participation in the killing was in the absence of provocation and, thus, with malice. The evidence proves murder, not voluntary manslaughter.\u201d\nThe case of State v. Trujillo, 27 N.M. 594, 203 P. 846 (1921), is dispositive of this point. In that case, the New Mexico Supreme Court reversed a conviction of voluntary manslaughter under circumstances markedly similar to those presently before the court, stating (27 N.M. at 601, 603, 203 P. at 849):\n\u201cWe have, then, a case where a man has been convicted of voluntary manslaughter, and where there is no evidence showing, or from which an inference can be drawn, that there was a sudden quarrel, or that there was heat of passion. To say that either one was present would be to put into the case facts which are not there, and which the jury would have no right to do. * * *\n\u00ab % \u2021 \u2021\n\u201cThe defendant by the verdict has been acquitted of murder, and has been convicted of a crime of which he is not shown to be guilty, and he is consequently entitled to be discharged.\u201d\nThe Court of Appeals did not follow State v. Trujillo, supra, and sought to distinguish it by stating (89 N.M. 779 at -, 558 P.2d at 48):\n\u201cThe presence of sufficient provocation is the usual method of determining that the offense is voluntary manslaughter. However, this usual method does not cover the situation where the evidence is insufficient to show the malice required for murder and the evidence also is insufficient to show provocation. Under defendant\u2019s theory, if there is no affirmative proof of provocation, defendant may have committed no crime at all even though the evidence shows an unlawful killing.\n\u201cThe answer to defendant\u2019s contention is provided by State v. Burrus, 38 N.M. 462, 35 P.2d 285 (1934). * * *\u201d\nThe passage from the denial of Burrus\u2019 motion for a rehearing upon which the Court of Appeals relies is as follows (38 N.M. at 470, 35 P.2d at 290):\n\u201cThe real- question is whether manslaughter is an offense the commission of which is \u2018necessarily included\u2019 in the murder with which appellant was charged, within the meaning of the proviso. It is readily to be perceived that the two offenses are distinct in the sense that manslaughter was not committed in committing the higher offense of murder. If murder was committed, there was no manslaughter. But that is not the point. The lesser need not be committed in the perpetration of the greater. The commission of the lesser need only be \u2018necessarily included\u2019 in the offense charged. The charge that there was an unlawful killing from malice aforethought, which constitutes murder, embraces the several elements, the killing, the unlawfulness of it, and the malice of it. On each element the accused is put to trial. As to any of them the proof may fail. If there was no killing or if it was not unlawful, there is no guilt. If there was a killing and it was unlawful but without malice, there is guilt of manslaughter. In that sense, murder as defined in law necessarily includes manslaughter as defined in law.\u201d\nThe Court of Appeals, emphasizing the penultimate sentence in this paragraph, apparently interpreted this to mean that the crime of voluntary manslaughter is a prosecutorial catch-all \u2014 that if the State proves the commission of an unlawful killing but fails to prove malice (so as to prove murder), there is automatically, without more, proof of manslaughter.\nThis is not unqualifiedly true, as this court recognized long ago in United States v. Densmore, 12 N.M. 99, 104-105, 75 P. 31, 32 (1904):\n\u201cThe indictment in this case charges murder in the first degree and the jury returned a verdict of guilty of manslaughter. Under the laws of the United States and a decision of the Supreme Court of the United States, a defendant charged in an indictment with the crime of murder may be found guilty of the lower grade of the crime, viz., manslaughter, provided of course that there is some evidence which tends to hear upon that issue. * * * \u201d (Emphasis added.)\nIn order properly to evaluate the reasoning of the Burrus case, supra, when we are considering the propriety of submitting the issue of manslaughter in the instant case, it is necessary to consider the evidence that was submitted in both cases. When we affirmed the conviction for voluntary manslaughter in the Burrus case, we did not have the same problem with the evidence which confronts us in the instant case. In Burrus, there was an abundance of evidence of provocation which is entirely lacking in this case.\nUnder appropriate circumstances, i. e. under a charge of murder where there is evidence \u201cthat the defendant acted as a result of sufficient provocation,\u201d then a charge of manslaughter could properly be said to be \u201cincluded\u201d in a charge of murder, and, accordingly, it would not be error to submit N.M.U.J.I.Crim. 2.20 to the jury. However, it cannot seriously be maintained that manslaughter is invariably \u201cnecessarily included\u201d in murder. Different kinds of proof are required to establish the distinct offenses. This is not a situation where the lesser-included-offense instruction was warranted by the evidence; it is error under State v. Trujillo, supra, to submit it contrary to the evidence, and such error is not cured by any reading of State v. Burrus, supra, where there was evidence that the killing was committed upon a sudden quarrel or in the heat of passion.\nApparently the Court of Appeals concluded that by holding that provocation was not an \u201celement\u201d of manslaughter, it was removing the necessity of evidence of provocation to sustain a voluntary manslaughter conviction. This cannot be done. The New Mexico statute on its face and in its historical operation defines voluntary manslaughter as the unlawful killing of a human being without malice committed upon a sudden quarrel or in the heat of passion. In this sense, provocation is indeed an \u201celement\u201d of manslaughter, as indeed it is in the ordinary meaning of the word. Webster\u2019s Third New International Dictionary, Unabridged (1971), defines element in part as:\n\u201c * * * one of the constituent parts, principles, materials, or traits of anything : one of the relatively simple forms or units that enter variously into a com-, plex substance or thing : * * * : one of the simplest parts or principles of which anything consists or into which it may be analyzed: as * * * one of the factors or conditions playing a part in or determining the outcome of some process or activity * * * \u201d\nWhether termed factor or condition or \u25a0constituent principle, it is clear that provocation is a part of voluntary manslaughter. Use of the word \u201celement\u201d is misleading, however, in that it suggests that it is necessarily part of the State\u2019s initial burden of proof. In this limited (and misleading) sense of the word, it is true that provocation will not in every case be an \u201celement\u201d of manslaughter. Provocation might be admitted, as is the case when the highest degree of homicide charged is that of voluntary manslaughter. See Committee Commentary to N.M.U.J.I.Crim. 2.21. It is not necessary for the disposition of this case to rule unequivocally either that provocation is or is not an \u201celement\u201d of voluntary manslaughter. There must be some evidence that the killing was committed \u201cupon a sudden quarrel\u201d or in the \u201cheat of passion\u201d in order for a conviction of voluntary manslaughter to stand; so much is clearly required by our statute.\nWe believe it is a cardinal principle in criminal law that a jury may not be permitted to return' a verdict of guilty for the commission of a particular crime when there is no evidence that such a crime was committed. The only instructions which should be submitted to the jury are those that are based on legitimate evidence. In State v. Pruett, 27 N.M. 576, 203 P. 840 (1921), 21 A.L.R. 579 (1922), we held that it was reversible error to submit the issue of involuntary manslaughter where all of the evidence and all of the inferences therefrom showed that the killing was intentional, and cited, in support of the conclusion, the following (27 N.M. at 591-592, 203 P. at 845-846, 21 A.L.R. at 588-589):\n\u201cIn State v. Ash, 68 Wash. 194, 122 Pac. 995, 39 L.R.A.,N.S., 611, the defendant was charged with murder and was convicted of manslaughter. The Supreme Court held that there was no element of manslaughter in the case, and that the giving of the manslaughter instruction was reversible error, saying:\n\u201c \u2018The state contends that, since the greater includes the less, manslaughter is included in murder in the first or second degree. Unquestionably this is true in law, but to be included in law is not sufficient; it must also be included in fact. We have so held in a number of cases.\u2019\n\u201cThe court then cites and quotes from two former Washington cases (State v. Kruger, 60 Wash. 542, 111 P. 769; State v. Pepoon, 62 Wash. 635, 114 P. 449), and goes on:\n\u201c \u2018Answering the rule of these cases, the state contends that, inasmuch as it is admitted that manslaughter is included in law in a charge of murder in the first degree, and as under our practice jurors are sole judges of the facts, the court cannot say, as a matter of law, there is no testimony to establish any of the lesser or included crimes, but must admit the legal inclusion and submit the inclusion in fact to the jury. This would be required where there was any fact or facts to be determined by the jury. But the court is not required to submit any determination of a fact to a jury when there is no fact, nor to permit a jury to establish by its verdict a fact which there is no evidence to sustain. * * * We are therefore of the opinion that it was error for the court to submit an instruction involving the crime of manslaughter.\u2019 \u201d\nIn State v. Lopez, 79 N.M. 282, 442 P.2d 594 (1968), where we were also considering a conviction for manslaughter, we again approved the rule as enunciated in State v. Trujillo, supra, by stating (79 N. M. at 286, 442 P.2d at 598):\n\u201cWe fully recognize the rule to be as argued by appellant and as stated in State v. Trujillo, 27 N.M. 594, 203 P. 846 (1921), that it is error for the court to submit to the jury an issue of whether defendant was guilty of voluntary manslaughter when the facts establish either first or second degree murder, but could not support a conviction of voluntary manslaughter and, accordingly, upon acquittal of murder and conviction of voluntary manslaughter, a reversal and discharge of the accused is required. * * * \u00bb\nIt is to be noted that in State v. Lopez, supra, there was evidence which warranted the submission of an instruction on voluntary manslaughter, while in the instant case there was none.\nThe contention that N.M.U.J.I.Crim. 2.-20 violates due process, as contended by the defendant, need not be decided since we have determined that the instruction was erroneously given, and a reversal of the trial court\u2019s action must necessarily follow. It is interesting to note that the defense made no objection to the giving of such an instruction at the trial.\nThe last contention needing resolution is that the invalid conviction cannot be sustained by ch. 199, \u00a7 1, [1937] N.M. Laws 522, entitled \u201cAn Act Providing That Jury May Convict of Lesser Degree in Offenses Consisting of Different Degrees, and That Such Conviction Shall Stand Though Evidence Shows Guilt of Higher Degree,\u201d reads in pertinent part as follows:\n\u201c * * * any person found guilty of murder in the second degree or of any degree of manslaughter shall be punished according to the verdict of the jury, although the evidence in the case shows him to be guilty of a higher degree of homicide; and no judgment shall be stayed, arrested or in any manner affected because the evidence shows or tends to show the accused guilty of a higher degree of the offense than that of which he is convicted.\u201d\nThe history of this provision is a tortured one. The 1937 legislature enacted it; the Supreme Court adopted the identical language as a rule of criminal procedure [\u00a7 41-13-1, N.M.S.A.19S3, (Repl. Vol. 6 1964)]. Ten years later the legislature attempted to repeal the 1937 statute (see ch. 175, \u00a7 1 [1947] N.M. Laws 364), but Tindall v. Bryan, 54 N.M. 112, 215 P.2d 354 (1949), held the attempted repeal invalid. In 1972, our rule compiled as \u00a7 41-13-1, supra, was repealed. The statute has never been repealed, although it has never been included in the compilation, and apparently remains in effect since Tindall v. Bryan, supra, declared the 1947 statute \u201cinoperative to change, or in any way affect any of the laws sought to be thereby repealed.\u201d\nBefore its repeal, \u00a7 41-13-1, supra, was used on occasion to uphold manslaughter convictions where the defendant claimed that the evidence in the case proved either murder or no felonious homicide at all. State v. Cochran, 79 N.M. 640, 447 P.2d 520 (1968); State v. McFall, 67 N.M. 260, 354 P.2d 547 (1960); State v. Griego, 61 N.M. 42, 294 P.2d 282 (1956).\nThe Court of Appeals in the instant case cited these cases and the original text of the 1937 statute to bolster its argument that the defendant\u2019s conviction could be affirmed despite the lack of evidence of the sudden quarrel or heat ot passion that is the distinguishing feature of voluntary manslaughter.\nThis cannot be done. In the first place, neither Cochran, McFall, nor Griego, supra, stands for the proposition for which they are cited, i.e., that the 1937 statute could be used to sustain a jury verdict of guilty of voluntary manslaughter where there was no evidence that the crime had been committed. In all three of those cases, there was sufficient evidence of sudden quarrel or heat of passion (e.g., violent argument, assault, the brandishing of weapons) to require affirmance of the convictions regardless of the 1937 statute.\nIn the second place, neither these New Mexico cases nor the 1937 statute nor any other authority could make lawful a conviction for a crime not shown by the evidence to have been committed. Such a result is contrary to the fifth amendment guarantees of due process of law and the explicit mandate of In re Winship, 397 U. S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and the more recent case of Vachon v. New Hampshire, 414 U.S. 478, 94 S.Ct. 664, 38 L.Ed.2d 666 (1974). In that case the United States Supreme Court reversed the defendant\u2019s conviction of willfully contributing to the delinquency of a minor because there was a complete lack of evidence tending to prove the \u201cessential component\u201d of willfullness. The court said (414 U.S. at 480, 94 S.Ct. at 665, 38 L.Ed. 2d at 669):\n\u201cIn these circumstances, the conviction must be reversed. \u2018It is beyond question, of course, that a conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged * * * violate[s] due process.\u2019 Harris v. United States, 404 U.S. 1232, 1233, 92 S.Ct. 10, 30 L.Ed.2d 25 (1971). (Douglas, J., in chambers); Thompson v. Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Johnson v. Florida, 391 U.S. 596, 88 S.Ct. 1713, 20 L.Ed.2d 838 (1968); see also Adderley v. Florida, 385 U.S. 39, 44, 87 S.Ct. 242, 17 L.Ed.2d 149 (1966).\u201d\nSo here, for the reasons already discussed, defendant\u2019s conviction may not be allowed to stand. Neither may any statute which purports to authorize an appellate court to sustain a conviction unsupported by the evidence be approved. Chapter 199, \u00a7 1, [1937] N.M. Laws 522, is invalid to the extend that it authorized a conviction for a lesser-included offense when no evidence is contained in the record to prove the essentials of the elements of the offense of which the defendant stands convicted.\nAccording to \u00a7 40A-2-3, supra, \u201cvoluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.\u201d According to State v. Trujillo, supra, a conviction of voluntary manslaughter where there is no evidence that there was a sudden quarrel or heat of passion must be reversed, and the defendant discharged. Therefore, defendant\u2019s conviction of voluntary manslaughter in this case, where there was no evidence of a sudden quarrel or heat of passion, must likewise be reversed and defendant discharged.\nEvidence of a sudden quarrel or heat of passion, tending to show provocation sufficient to negate malice and reduce the degree of felonious homicide from murder to manslaughter is, by this analysis, indispensable to a conviction for voluntary manslaughter.\nIt is clear from the record that a verdict of guilty of murder would have been supported by substantial evidence. However, the jury acquitted the defendant of this degree of homicide, and, erroneously instructed, convicted him of a crime which he did not commit. This was an unfortunate mistake, but the remedy does not lie in affirming the unlawful conviction.\nOn the basis of the foregoing, we must hold that the judgment of conviction is erroneous; that the decision of the Court of Appeals should also be reversed and the cause be remanded with instructions to set aside the judgment of the trial court, dismiss the cause, and discharge the defendant.\nIT IS SO ORDERED.\nOMAN, C. J., and McMANUS and SOSA, JJ., concur.\nEASLEY, J., not participating.", "type": "majority", "author": "MONTOYA, Justice." } ], "attorneys": [ "Chester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Don Klein, Assistant Appellate Defender, Santa Fe, for petitioner.", "Toney Anaya, Atty. Gen., Ralph W. Muxlow II, Asst. Atty. Gen., Santa Fe, for respondent." ], "corrections": "", "head_matter": "558 P.2d 39\nAntonio Chuck SMITH, Petitioner, v. STATE of New Mexico, Respondent.\nNo. 11007.\nSupreme Court of New Mexico.\nDec. 27, 1976.\nChester H. Walter, Jr., Chief Public Defender, Bruce L. Herr, Appellate Defender, Don Klein, Assistant Appellate Defender, Santa Fe, for petitioner.\nToney Anaya, Atty. Gen., Ralph W. Muxlow II, Asst. Atty. Gen., Santa Fe, for respondent." }, "file_name": "0770-01", "first_page_order": 806, "last_page_order": 813 }