2019 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 2 - Homicide
Section 30-2-1 - Murder.

Universal Citation: NM Stat § 30-2-1 (2019)

A. Murder in the first degree is the killing of one human being by another without lawful justification or excuse, by any of the means with which death may be caused:

(1) by any kind of willful, deliberate and premeditated killing;

(2) in the commission of or attempt to commit any felony; or

(3) by any act greatly dangerous to the lives of others, indicating a depraved mind regardless of human life.

Whoever commits murder in the first degree is guilty of a capital felony.

B. Unless he is acting upon sufficient provocation, upon a sudden quarrel or in the heat of passion, a person who kills another human being without lawful justification or excuse commits murder in the second degree if in performing the acts which cause the death he knows that such acts create a strong probability of death or great bodily harm to that individual or another.

Murder in the second degree is a lesser included offense of the crime of murder in the first degree.

Whoever commits murder in the second degree is guilty of a second degree felony resulting in the death of a human being.

History: 1953 Comp., § 40A-2-1, enacted by Laws 1963, ch. 303, § 2-1; 1980, ch. 21, § 1; 1994, ch. 23, § 1.

ANNOTATIONS

Cross references. — For attempt to commit a felony, see 30-28-1 NMSA 1978.

For homicide by vehicle, see 66-8-101 NMSA 1978.

For homicide instructions, see UJI 14-201 NMRA et seq.

For instruction on the essential elements of felony murder, see UJI 14-202 NMRA.

The 1994 amendment, effective July 1, 1994, added "resulting in the death of a human being" at the end of the last paragraph of Subsection B.

Applicability. — Laws 1994, ch. 23, § 4 provided that the provisions of Laws 1994, ch. 23, § 1 apply only to persons sentenced for crimes committed on or after July 1, 1994.

I. GENERAL CONSIDERATION.

Depraved mind murder. — A number of elements must be considered in appraising whether a defendant has displayed the requisite depraved mind pursuant to Section 30-2-1A(3) NMSA 1978. Conviction requires that more than one person be endangered by the defendant's act. The defendant's act must be intentional and of an extremely reckless character. The defendant must possess subjective knowledge that his act was "greatly dangerous to the lives of others". State v. Dowling, 2011-NMSC-016, 150 N.M. 110, 257 P.3d 930.

Courts have distinguished depraved mind murder by the number of persons exposed to danger by a defendant's extremely reckless behavior. In general, depraved mind murder convictions have been limited to acts that are dangerous to more than one person. In addition to the number of people endangered, courts have construed depraved mind murder as requiring proof that the defendant had "subjective knowledge" that his act was greatly dangerous to the lives of others. This requirement of subjective knowledge serves as proof that the accused "acted with 'a depraved mind' or 'wicked or malignant heart' and with utter disregard for human life". To further narrow the class of killings eligible for depraved mind murder, courts have concluded "that the legislature intended the offense of depraved mind murder to encompass an intensified malice or evil intent." In describing that intensified malice, courts have defined the phrase "depraved mind" used in the statute and uniform jury instructions as "[a] corrupt, perverted, or immoral state of mind constituting the highest grade of malice [that equates] with malice in the commonly understood sense of ill will, hatred, spite or evil intent". State v. Reed, 2005-NMSC-031, 138 N.M. 365, 120 P.3d 447.

Double jeopardy. — Felony murder has its own particular double jeopardy analysis. If the predicate felony and felony murder are unitary, then the predicate felony must be dismissed because it is subsumed within the elements of felony murder. State v. Bernal, 2006-NMSC-050, 140 N.M. 644, 146 P.3d 289.

Convictions of attempted murder and aggravated battery violated double jeopardy. — Where defendant was convicted of attempted murder and aggravated battery with a deadly weapon; defendant's conduct was unitary; the indictment for attempted murder required the state to prove that defendant attempted to commit murder and "began to do an act which constituted a substantial part of murder" but failed to commit the offense; the indictment for aggravated battery required the state to prove that defendant touched or applied force to the victims with a deadly weapon intending to injure the victims; the state's theory of the case to support both charges was that defendant beat, stabbed, and slashed the victims; and the state offered the same testimony to prove both charges, the aggravated battery elements were subsumed within the attempted murder elements and defendant's convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Intent. — "Deliberate intention" is defined as, arrived at or determined upon as a result of careful thought and the weighing of the consideration for and against the proposed course of action. Intent is subjective and is almost always inferred from other facts in the case, as it is rarely established by direct evidence. State v. Sosa, 2000-NMSC-036, 129 N.M. 767, 14 P.3d 32.

Corpus delicti. — In homicide cases the corpus delicti is established upon proof of the death of the person charged in the information or indictment, and that the death was caused by the criminal act or agency of another. The corpus delicti of a particular offense is established simply by proof that the crime was committed; the identity of the perpetrator is not material. State v. Sosa, 2000-NMSC-036, 129 N.M. 767, 14 P.3d 32.

Jury's specification of death penalty is not freakish, capricious, or arbitrary where defendant killed the victim in a particularly brutal fashion by striking her in the head three to five times with a sledgehammer and this occurred after the defendant kidnapped the victim by deception, chased her as she attempted to escape and stabbed her two inches deep in the chest with a knife when she struggled, and completely disrobed the victim in an attempt to rape her. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516 (decided under prior law).

Fair trial. — Where the prosecutor did no more than repeat what the judge had already said to the jury, that is, that the photographs of the victim contained more graphic material than the jurors were allowed to see, and relied on reasonable inferences from the medical investigator's testimony about the graphic nature of the wounds, the prosecutor did not introduce any new information to the jury, and viewing this isolated remark in context with the judge's comments to the jury, with the testimony of the medical investigator, and with the overwhelming evidence of guilt, the remark did not result in a verdict based on passion or prejudice or otherwise deprive defendant of a fair trial. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.

Constitutionality. — Because the statute and court decisions clearly indicate that the element of deliberation is what distinguishes first degree murder from second degree murder, and the distinction between first and second degree murder has been clearly enunciated by the supreme court, this section and former Section 30-2-2 NMSA 1978, relating to malice (now repealed), are not unconstitutional on the grounds that they make impossible an ascertainable distinction between first and second degree murder. State v. Valenzuela, 1976-NMSC-079, 90 N.M. 25, 559 P.2d 402.

New Mexico Const., art. IV, § 18, relating to the amendment of statutes, did not apply to 40-24-4, 1953 Comp., the former felony murder statute, which was enacted prior to adoption of the constitutional provision. State v. Hines, 1967-NMSC-237, 78 N.M. 471, 432 P.2d 827.

Open charge of murder gives defendant notice that he must defend against a charge of unlawfully taking a human life. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Double jeopardy. — Defendant's right to freedom from double jeopardy was not violated by punishment for attempted first degree murder, aggravated battery with a deadly weapon, and criminal sexual penetration. State v. Traeger, 2000-NMCA-015, 128 N.M. 668, 997 P.2d 142, aff'd in part, rev'd in part on other grounds, 2001-NMSC-022, 130 N.M. 618, 29 P.3d 518.

Element of intent is seldom susceptible to direct proof, since it involves the state of mind of the defendant, and it thus may be proved by circumstantial evidence. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Elements of depraved mind murder. — The elements that are required to support a depraved mind murder conviction are that more than one person must be endangered by defendant's act; defendant's act must be intentional and extremely reckless; defendant must possess subjective knowledge that defendant's act was greatly dangerous to the lives of others; and the act must encompass an intensified malice and evil intent. State v. Dowling, 2011-NMSC-016, 150 N.M. 110, 257 P.3d 930.

Sufficient evidence of depraved mind murder. — Where defendant drove a truck at approximately 80 miles per hour for approximately one mile on a four-lane suburban street during the middle of a weekday, striking and injuring a jogger on the street's raised median, then driving onto a sidewalk and striking and killing a second pedestrian; all the while speeding and weaving in and out of traffic, including into oncoming traffic, almost colliding with other vehicles, until defendant crossed all four lanes of the street and finally crashed into a boulder on the raised median, the evidence was sufficient to support defendant's conviction of depraved mind murder. State v. Dowling, 2011-NMSC-016, 150 N.M. 90, 257 P.3d 930.

Act indicating depraved mind not affected by intent to kill particular individual. — A murder committed by an act which indicates a depraved mind is a first degree murder. The existence of an intent to kill any particular individual does not remove the act from this class of murder. State v. Sena, 1983-NMSC-005, 99 N.M. 272, 657 P.2d 128.

For legislative history of term "human being" in definition of murder, as found throughout homicide statutes. State v. Willis, 1982-NMCA-151, 98 N.M. 771, 652 P.2d 1222.

Fair trial. — Defendant's right to fair trial was not violated when, in a prosecution for first degree murder, the state secured an instruction for the lesser included offense of second degree murder and then argued against this lesser included offense at closing, contending that the evidence could only support a first degree murder conviction. State v. Armendarez, 1992-NMSC-012, 113 N.M. 335, 825 P.2d 1245.

Cumulative punishment is precluded for shooting at a vehicle and homicide. — New Mexico jurisprudence precludes cumulative punishment for the offenses of causing great bodily harm to a person by shooting at a motor vehicle and the homicide resulting from the penetration of the same bullet into the same person. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of voluntary manslaughter and shooting into a motor vehicle resulting in great bodily harm, the Double Jeopardy Clause protected defendant from being punished both for the homicide of the victim and for shooting into a vehicle causing great bodily harm to the victim where both convictions were premised on the unitary act of shooting the victim. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

Legislature intended to provide multiple punishments for the offenses of second degree murder and shooting into or from a vehicle. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

A consideration of second degree murder and shooting from a motor vehicle shows that the sections setting forth these crimes are designed to combat distinct evils, which provides further indicia of legislative intent confirming the presumption that the offenses are separately punishable. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Conviction of lesser offense only if supported by evidence. — No statute which purports to authorize an appellate court to sustain a conviction unsupported by the evidence may be approved, and accordingly Laws 1937, ch. 199, § 1 (not compiled), is invalid to the extent that it authorizes a conviction for a lesser included homicide offense when no evidence was contained in the record to prove the essentials of the elements of the offense of which the defendant stands convicted. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Unsupported conviction unconstitutional. — A conviction based on a record lacking any relevant evidence as to a crucial element of the offense charged violates due process. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

"Torture". — Murder by strangling and suffocation was not murder by "torture," which was conclusively made first degree murder by Laws 1907, ch. 36, § 1 (40-24-4, 1953 Comp.). State v. Bentford, 1935-NMSC-051, 39 N.M. 293, 46 P.2d 658 (decided under prior law).

Conviction of principal in second degree. — A principal in the second degree was guilty of crime the same as the principal in the first degree, and might be tried and convicted, even though the latter has been acquitted or convicted of a lesser degree of the offense. State v. Martino, 1920-NMSC-069, 27 N.M. 1, 192 P. 507.

Double jeopardy. — Defendant's convictions under two theories of first degree murder did not result in contradictory convictions in violation of due process and double jeopardy principles because the two crimes were not inherently or factually contradictory and the jury could have concluded that defendant was guilty under both alternatives, given the evidence. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.

Guilty verdicts for two alternative theories of first degree murder should be regarded, for sentencing purposes, as a general verdict of first degree murder based on the two theories, thereby avoiding multiple punishments. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.

Convictions of defendant for both second degree murder and intentional child abuse resulting in death violated his right not to be placed in double jeopardy. State v. Mann, 2000-NMCA-088, 129 N.M. 600, 11 P.3d 564, aff'd, 2002-NMSC-001, 131 N.M. 459, 39 P.3d 124.

Defendant's conviction for both shooting into an occupied motor vehicle under Section 30-3-8 NMSA 1978 and first degree murder under this section was not double jeopardy because the legislature intended to have separate punishments for similar conduct that can result in a violation of both statutes. State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023.

There was no double jeopardy violation for convictions for second degree murder and shooting at or from a motor vehicle because the testimony at trial permitted the inference that each conviction was based on distinct conduct and because the two statutes evince legislative intent to impose separate punishments for each crime. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

Conviction for shooting at a motor vehicle under Section 30-3-8B NMSA 1978 did not preclude the state from seeking a further conviction for first or second degree murder under this section. State v. Garcia, 2005-NMCA-042, 137 N.M. 315, 110 P.3d 531, cert. denied, 2005-NMCERT-004, 137 N.M. 454, 112 P.3d 1111.

Homicide charge not merged. — The homicide resulting from the great bodily harm was sufficient evidence for the jury to find aggravated sodomy and first degree kidnapping, and there was no merger with the charge of murder of which defendant was acquitted. State v. Melton, 1977-NMSC-014, 90 N.M. 188, 561 P.2d 461.

Aggravated burglary and first degree murder not unitary. — First degree murder and aggravated burglary were not unitary acts, and imposition of sentences for both offenses did not violate double jeopardy. State v. Livernois, 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057.

Merger of lesser offense found. — Where a defendant was charged with numerous counts of child abuse resulting in death or great bodily injury and with murder, but the state did not charge or offer proof that the acts of child abuse arose as separate and distinct episodes, the rule of merger precluded the defendant's conviction and sentence for a crime that is a lesser included offense of a greater charge upon which defendant has also been convicted. Although the state properly may charge in the alternative, where the defendant was convicted of one or more offenses which were merged into the greater offense, he could be punished for only one. State v. Pierce, 1990-NMSC-049, 110 N.M. 76, 792 P.2d 408 (events occurred prior to 1989 amendment to Section 30-6-1 NMSA 1978).

Bail. — To be admitted to bail on habeas corpus petition, if proof of capital crime is plain and presumption great, court would not weigh it against other, apparently contradictory, facts and circumstances. Ex parte Wright, 1929-NMSC-093, 34 N.M. 422, 283 P. 53.

Prosecutor's comments on defendant's story appropriate. — Prosecutor's comments on the veracity of defendant's story did not deprive defendant of a fair trial. If after a case is presented, the evidence is essentially reduced to which of two conflicting stories is true, a party may reasonably infer, and thus argue, that the other side is lying. State v. Aguilar, 1994-NMSC-046, 117 N.M. 501, 873 P.2d 247, cert. denied, 513 U.S. 859, 115 S. Ct. 168, 130 L. Ed. 2d 105, and cert. denied, 513 U.S. 865, 115 S. Ct. 182, 130 L. Ed. 2d 116 (1994).

II. DELIBERATION AND PREMEDITATION.

Substantial evidence of deliberate intention. — A deliberate intention refers to the state of mind of the defendant, is rarely subject to proof by direct evidence, and often must be inferred from all the facts and circumstances of the killing. State v. Astorga, 2015-NMSC-007.

Where law enforcement officer was murdered during a traffic stop, evidence established that defendant had a motive to kill the officer, wanting to avoid arrest because defendant knew that he was wanted on an outstanding warrant, that defendant initially complied with the officer when the officer pulled defendant's vehicle over, that defendant then retrieved his gun while he waited for the officer to approach the vehicle, and when the officer neared the window, defendant fired the gun twice at the officer from point-blank range, that defendant, after the killing, made incriminating statements about having "blasted that cop", there was substantial evidence of defendant's deliberate intention to take away the life of the law enforcement officer. State v Astorga, 2015-NMSC-007.

Where the evidence at trial established that defendant threatened the victim during a confrontation the day prior to the murder and cell phone records revealed that defendant sought out the victim the same morning of the murder, that the victim suffered approximately ninety stab wounds during the attack, indicating that the attack upon victim spanned a prolonged period of time, and that defendant disposed of the murder weapon and clothes he wore during the attack, there was sufficient evidence of defendant's deliberate intent to murder the victim. State v. Smith, 2016-NMSC-007.

Sufficient evidence of first-degree deliberate murder. — There was sufficient evidence to allow a trier of fact to reasonably infer that the defendant killed the victim with the deliberate intention to take away her life, where the physical evidence containing a full DNA profile matching defendant was found on the victim's body in semen on her thigh and under the fingernails of her right hand, and also on the paver stone presumed to be the murder weapon, and where evidence of deliberation was established by evidence of a prolonged struggle and a large number of wounds to the victim. State v. Thomas, 2016-NMSC-024.

Sufficient evidence of deliberate murder. — Where defendant was playing with a folding pocket knife at a party; a fight broke out between defendant and the victim; the victim ran away bleeding heavily and later died at a hospital; defendant made the statement that "I think I stabbed that fool seven or eight times. I stabbed that fool"; defendant and defendant's friends acted "fine, like nothing, like high-fiving each other"; defendant stabbed the victim thirteen times in the left side of the chest; and the wounds were consistent with a single-edged knife, the evidence was sufficient to support defendant's conviction of willful and deliberate murder. State v. Guerra, 2012-NMSC-027, 284 P.3d 1076.

Where an altercation occurred between defendant and the victim; the victim was kneeling on the ground as defendant stood over the victim pointing a rifle at the victim's head; the victim attempted to push the rifle away from the victim's head twice and defendant repositioned the rifle so the rifle it pointed directly at the victim's face; as defendant pointed the rifle at the victim, the victim was pleading with defendant; a witness testified that defendant fired four close range shots directly at the victim; there were five wounds in the victim's body, four of which had penetrated the victim's body; and within an hour after the shooting, defendant interacted with a witness who testified that defendant did not appear to be intoxicated and that defendant made a telephone call to tell someone that defendant would not be at work for a week because defendant was in a "heap of trouble", there was sufficient evidence for a jury to find that defendant acted with deliberate intent when defendant killed the victim. State v. Largo, 2012-NMSC-015, 278 P.3d 532.

Jury could reasonably find that defendant acted with deliberate intent because the physical evidence of the stabbing of the victim showed that the attack was part of a prolonged struggle and that the victim was stabbed multiple times as she tried to escape, and because defendant later made statements that he had hurt, stabbed and murdered a woman. State v. Duran, 2006-NMSC-035, 140 N.M. 94, 140 P.3d 515.

Where defendant was embittered by the victim's rejection of defendant and the breakup of the relationship between defendant and the victim; defendant tried to hurt the victim by making scandalous accusations to the victim's ex-wife and the police; defendant made methodical plans for a trip from Nevada to New Mexico in pursuit of the victim; defendant surreptitiously followed the victim to the victim's home town in New Mexico and stalked the victim over a period of days; defendant ascertained that the victim was taking an alcohol server class at a local motel, inquired about the time and place of the class, and ascertained when defendant could get the victim alone during a class recess; defendant deliberately lay in wait for the victim; defendant carried a screwdriver with him to the fatal confrontation with the victim; defendant stabbed the victim twenty-one times with the screwdriver; after the stabbing, defendant immediately and calmly walked away and fled the scene of the murder; defendant tried to deceive and evade the authorities; and defendant attempted to concoct a false alibi, the evidence was sufficient to support the jury's determination that defendant committed the murder with deliberate intent to kill. State v. Flores, 2010-NMSC-002, 147 N.M. 542, 226 P.3d 641.

Sufficient evidence of willful and deliberate murder. — In defendant's trial for first-degree murder for the killing of a police officer and aggravated fleeing, the state presented sufficient evidence for a rational jury to find beyond a reasonable doubt that defendant manifested a deliberate intention to kill the officer, where the evidence established that during a traffic stop, the officer attempted to approach the vehicle when the vehicle suddenly accelerated out of a parking lot, and where defendant later brought the vehicle to a stop and waited for the pursuing officer to catch up, and when the officer approached the vehicle a second time, defendant fired his gun four times at the officer. Moreover, testimony from defendant's accomplice established that prior to the shooting, defendant moved his pistol from a hidden position into a firing position, that defendant stated that he would kill an officer to avoid going back to prison, and that defendant shot the officer twice, paused for a moment, and then shot the officer two more times, which was probative of deliberation and intent to kill. State v. Romero, 2019-NMSC-007.

Sufficient evidence to prove identity in first-degree murder trial. — In defendant's trial for first-degree murder, where identity was at issue, there was sufficient evidence to support defendant's conviction where the victim's wife and three children witnessed the shooting of victim and testified that defendant was the shooter, where a bystander also testified that she witnessed defendant shoot the victim while he was sitting in a vehicle, and where the state presented physical evidence including a latent print of defendant's palm on the vehicle in which the victim was murdered. State v. Ramirez, 2018-NMSC-003.

Insufficient evidence of deliberate murder. — Where defendant was charged with attempted first degree murder after attending a party that ended with one person dead and the victim seriously injured from multiple gunshot wounds; after arriving at the party, defendant waited outside the hall while defendant's friend went into the hall; defendant was carrying a revolver and the friend was carrying a semiautomatic pistol; when a fight erupted in the hall, defendant walked to the entrance of the hall; defendant's friend shot at the victim several times with the pistol; several witnesses, including the victim, testified that they did not see defendant during the fight; after the shooting started, defendant was seen running with the friend away from the fight as other people were firing at them; defendant returned home and hid the pistol; defendant's friend told the police that defendant had admitted shooting the victim, but at trial denied that defendant had admitted shooting the victim; there was no evidence that defendant had a motive to kill the victim; defendant had a concealed weapon permit; other guests at the party were also carrying weapons; and defendant lied to the police and told one friend not to talk about what happened, the evidence was insufficient to demonstrate that defendant acted willfully, deliberately and with premeditated intent to kill the victim. State v. Slade, 2014-NMCA-088, cert. granted, 2014-NMCERT-008.

Where defendant and the victims had been drinking and taking drugs earlier in the day; while defendant and the victims were aimlessly driving around, drinking and taking more drugs, defendant, without any evidence of motive, shot and killed the driver and when the passenger, who was sitting in the front seat, screamed and turned around to look at defendant, defendant shot and wounded the passenger; and although multiple shots were fired in quick succession, each victim was shot only once, there was insufficient evidence of deliberation to support defendant's conviction for attempted first degree murder of the passenger. State v. Tafoya, 2012-NMSC-030, 285 P.3d 604.

Evidence of condition of mind of accused at time of crime may be introduced, not only for the purpose of proving the inability to deliberate, but also to prove that the conditions were such that defendant did not in fact, at the time of the killing, form a deliberate intent to kill. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845.

Exclusion of expert testimony held error. — The trial court committed reversible error when it sua sponte excluded the expert testimony of defendant's sole witness, a neuropsychologist, who was prepared to testify regarding defendant's neurological deficits, which defendant contends were relevant to whether he formed the deliberate intent to kill. State v. Balderama, 2004-NMSC-008, 135 N.M. 329, 88 P.3d 845.

Period of deliberation. — Murder in the first degree is a willful, deliberate and premeditated killing, and although a deliberate intention means an intention or decision arrived at after careful thought and after a weighing of the reasons for the commission of the killing, such a decision may be reached in a short period of time. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.

Burden of proof. — The burden is on the state to prove that a defendant not only had an opportunity to form deliberate intent but did in fact form a deliberate intent to kill. State v. Motes, 1994-NMSC-115, 118 N.M. 727, 885 P.2d 648.

Transferred intent to kill. — In a homicide case where A shot at B, and the bullet struck C and killed him, the malice or intent followed the bullet. State v. Carpio, 1921-NMSC-063, 27 N.M. 265, 199 P. 1012.

Charge that murder was done willfully, deliberately and premeditatedly and with malice aforethought was sustained by proof that it was committed with a mind imbued with those qualities, though they were directed against a person other than the one killed. State v. Carpio, 1921-NMSC-063, 27 N.M. 265, 199 P. 1012.

Transferred intent applicable to murder and attempted murder. — The doctrine of transferred intent applies to both murder and attempted murder. State v. Gillette, 1985-NMCA-037, 102 N.M. 695, 699 P.2d 626.

Period of time to abandon intent. — Just as it requires no period of time to form a deliberate intent to kill, so too, it does not require a certain period of time to abandon a pre-existing depraved mind. Although the initial act of defendant shooting indiscriminately at two people at two different times could have been found by the jury to be a depraved-mind action and one done with a wicked and malignant heart, these actions did not wound or kill the victim or anyone else. It is the criminal intent at the time of the commission of the crime that is determinative. State v. Hernandez, 1994-NMSC-045, 117 N.M. 497, 873 P.2d 243.

Question of deliberation and premeditation in murder case was for jury to determine upon a consideration of all the surrounding circumstances tending to show the relation of the parties to each other and the animus of the accused toward the deceased. State v. Smith, 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146.

Direct or circumstantial evidence. — While deliberation and premeditation are essential elements of murder in the first degree, these, like other elements, may be shown by direct evidence or by circumstances from which their existence may be inferred by the jury. State v. Montoya, 1963-NMSC-098, 72 N.M. 178, 381 P.2d 963.

The essential elements of murder in the first degree, including the elements of deliberation and premeditation, may be shown not only by direct evidence but by circumstances from which their existence may be inferred. State v. Smith, 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146.

Evidence of wounds inflicted in fight was sufficient to support a finding of premeditation, intent to kill and malice. State v. Garcia, 1956-NMSC-058, 61 N.M. 291, 299 P.2d 467.

Striking victim with car. — In case where the defendant struck the deceased with his automobile after an argument between the two and after deceased was seen to strike defendant's mother, the facts and surrounding circumstances warranted a finding by the jury that the killing was malicious, deliberate and premeditated. State v. Montoya, 1963-NMSC-098, 72 N.M. 178, 381 P.2d 963.

Forcing car off road. — From evidence that in the course of a high speed police chase defendant made a deliberate sharp turn into the police car, forcing it off the road while driving at a speed of 110 m.p.h., the jury could reasonably have inferred that defendant intended to murder the police officers. State v. Bell, 1972-NMCA-101, 84 N.M. 133, 500 P.2d 418 (affirming conviction of assault on police officers with intent to commit a violent felony).

Shooting deceased's fleeing wife. — Where defendant's shooting of decedent's wife occurred within a second or so after the shooting of decedent and as she sought to escape, shooting her under the circumstances had real probative value upon the issues of deliberation and intent, and constituted evidence of a preconceived plan to kill her as well as her husband. State v. Lucero, 1975-NMSC-061, 88 N.M. 441, 541 P.2d 430.

Premeditation is a necessary element in proof of second degree murder. State v. White, 1956-NMSC-038, 61 N.M. 109, 295 P.2d 1019.

III. FELONY MURDER.

Sufficient evidence. — Where the non-conflicting testimony of witnesses established that while defendant was attending a party, defendant visited the victim's apartment several times to buy marijuana; when the supply of marijuana was exhausted, defendant gestured to a screwdriver in defendant's waistband and said that defendant was going to "jack" the victim; defendant went to the victim's apartment, started punching the victim and held the screwdriver against the victim's neck; when the victim reached for a gun, defendant took a gun away from the victim, put the gun to the victim's head and pulled the trigger; when the gun failed to fire, defendant pulled the trigger a second time and shot and killed the victim; defendant returned to the party with the gun in defendant's hand; and defendant was showing off the gun and stated that defendant had taken the gun from the victim and "blasted" the victim, the evidence was sufficient to support the finding that defendant committed the predicate offense of armed robbery and then intentionally killed the victim during the robbery. State v. Garcia, 2011-NMSC-003, 149 N.M. 185, 246 P.3d 1057.

The felony murder statute expresses a clear legislative intent that a killing during the commission of a felony constitutes unitary conduct in every case and a conviction of both the predicate felony and felony murder violates double jeopardy. State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1.

Where there is only one first degree felony conviction which also serves as the predicate felony for a felony murder conviction, the legislature did not intend to allow a separate conviction for that same felony. State v. Frazier, 2007-NMSC-032, 142 N.M. 120, 164 P.3d 1.

It is per se fundamental error for aggravated battery to be used as an alternative predicate for felony murder. Campos v. Bravo, 2007-NMSC-021, 141 N.M. 801, 161 P.3d 846.

Not all underlying felonies constitute an aggravating circumstance. In fact, the only underlying felonies for felony murder that can serve as an aggravating circumstance for capital sentencing are kidnapping, criminal sexual contact of a minor, and criminal sexual penetration. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.

When state proves elements of felony murder, it has proved all of the elements of the capital felony of first degree murder. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.

Eligibility for death penalty. ---New Mexico requires an aggravating circumstance, in addition to the commission of felony murder, in order to be eligible for the death penalty. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516 (decided under prior law).

Limitations to felony murder doctrine. — While the wording of this section is broad, New Mexico has created five main limitations to the felony murder doctrine. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

All of New Mexico's felony murder limitations work together to ensure that defendants convicted of felony murder have a culpable mental state consistent with the legislature's retributive and punitive goals. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

Accomplices. — A defendant cannot be charged with felony murder based on the lethal acts of another person who is not an accomplice. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

Defendant may not be held liable for depraved mind murder when he or his accomplice did not commit the lethal act that killed an innocent bystander. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

Felony murder statute constitutional. — Constitutional objection that felony murder statute under which petitioner was convicted was so broad and vague as to be unconstitutional was rejected. Hines v. Baker, 309 F. Supp. 1017 (D.N.M. 1968), aff'd, 422 F.2d 1002 (10th Cir. 1970).

Purpose. — In our felony-murder statute the legislature has permissibly determined that a killing in the commission or attempted commission of a felony is deserving of more serious punishment than other killings in which the killer's mental state might be similar but the circumstances of the killing are not as grave. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

Intent to kill for felony murder need not be a "willful, deliberate and premeditated" intent as contemplated by the definition of first degree murder in Subsection A(1) of this section, nor need the act be "greatly dangerous to the lives of others, indicating a depraved mind regardless of human life", as contemplated by the definition in Subsection (A)(3). State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

An intent to kill in the form of knowledge that the defendant's acts "create a strong probability of death or great bodily harm" to the victim or another, so that the killing would be only second degree murder under Subsection B of this section if no felony were involved, is sufficient to constitute murder in the first degree when a felony is involved - or so the legislature has determined. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

The "malice" required for murder (both first and second degree), as opposed to manslaughter, is an intent to kill or an intent to do an act greatly dangerous to the lives of others or with knowledge that the act creates a strong probability of death or great bodily harm. The same intent should be required to invest with first degree murder status a killing in the commission of or attempt to commit a first degree or other inherently dangerous felony. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

In addition to proof that the defendant caused (or aided and abetted) the killing, there must be proof that the defendant intended to kill (or was knowingly heedless that death might result from his conduct). An unintentional or accidental killing will not suffice. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

Felony murder does have a mens rea element, which cannot be presumed simply from the commission or attempted commission of a felony. State v. Ortega, 1991-NMSC-084, 112 N.M. 554, 817 P.2d 1196.

Intent requirement. — The felony-murder intent requirement is satisfied if there is proof that the defendant intended to kill, knew that his actions created a strong probability of death or great bodily harm to the victim or another person, or acted in a manner greatly dangerous to the lives of others. State v. Griffin, 1993-NMSC-071, 116 N.M. 689, 866 P.2d 1156.

Conclusive presumption disapproved. — To presume conclusively that one who commits any felony has the requisite mens rea to commit first degree murder is a legal fiction which can no longer be supported where the felony is of lesser than first degree. State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

Murder during commission of first degree felony. — In a felony murder case where the collateral felony is a first degree felony, the res gestae test shall be used. State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

Murder during commission of dangerous lesser degree felony. — In a felony murder charge, involving a collateral felony, which is not of the first degree, that felony must be inherently dangerous or committed under circumstances that are inherently dangerous to support a felony murder conviction. State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

Robbery may raise second degree murder to first. — Robbery can be the predicate offense to raise second degree murder to first degree felony murder, under Subsection A(2), where there is a causal relationship between the robbery and the murder, the robbery is independent of or collateral to the murder, and the nature of the robbery is inherently or foreseeably dangerous to human life. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807.

Dangerous lesser degree felony high probability of death. — Of the felonies which are not of the first degree, only those known to have a high probability of death may be utilized for a conviction of first degree murder. State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

Underlying felony need not be dangerous. — It is irrelevant that, in the abstract, trafficking a controlled substance by possession with intent to distribute is not necessarily a dangerous crime. The standard applied to defendant was, while engaging in that particular felony, and as a consequence of the felony, defendant intended to kill. State v. Bankert, 1994-NMSC-052, 117 N.M. 614, 875 P.2d 370.

Jury to determine dangerousness. — Both the nature of the felony and the circumstances of its commission may be considered to determine whether it was inherently dangerous to human life; this is for the jury to decide, subject to review by the appellate courts. State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

It was proper for the jury to determine whether the crime of criminal sexual contact was inherently dangerous for purposes of felony murder. State v. Mora, 1997-NMSC-060, 124 N.M. 346, 950 P.2d 789.

Sequence not determinative. — If a homicide occurs within the res gestae of a felony, the felony murder provision of the statute is applicable, and whether the homicide occurred before or after the actual commission of the felony is not determinative of the applicability of the felony murder provision. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178; Nelson v. Cox, 1960-NMSC-005, 66 N.M. 397, 349 P.2d 118.

Intent not determinative. — Killing by person engaged in commission of a felony was first degree murder by both the principal and accessory present aiding and abetting, whether the killing was intentional or accidental. State v. Smelcer, 1924-NMSC-059, 30 N.M. 122, 228 P. 183.

Voluntary intoxication no defense to first degree felony murder. — Intoxication is not a defense to second degree murder and, therefore, is also not a defense to first degree felony murder. State v. Pando, 1996-NMCA-078, 122 N.M. 167, 921 P.2d 1285.

Felony murder applicable to attempts. — The felony murder provision is clearly applicable once conduct in furtherance of the commission of a felony has progressed sufficiently to constitute an attempt to commit the felony, and an attempt has been accomplished when an overt act, in furtherance of and tending to effect the commission of the felony, has been performed or undertaken with intent to commit the felony. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.

Where the evidence clearly supported a reasonable inference that defendant had already formed the intent to take the automobile and was in the process of executing that intent when the shooting occurred and before the death of decedent, an instruction on the felony murder rule was appropriate. State v. Flowers, 1971-NMSC-091, 83 N.M. 113, 489 P.2d 178.

Crime of attempted felony murder does not exist in New Mexico and the trial court cannot have jurisdiction over such a charge. Since the trial court lacks jurisdiction, there is no basis for a claim of double jeopardy, and on remand, the prosecution may file an alternate, proper charge. State v. Price, 1986-NMCA-036, 104 N.M. 703, 726 P.2d 857, cert. quashed, 104 N.M. 702, 726 P.2d 856.

Precise felony to be named in charge. — Before defendant can be convicted of felony murder, he must be given notice of the precise felony with which he is being charged and the name of the felony underlying the charge must be either contained in the information or indictment or furnished to the defendant in sufficient time to enable him to prepare his defense. State v. Hicks, 1976-NMSC-069, 89 N.M. 568, 555 P.2d 689.

Attempt subsumed under offense named. — Conviction of first degree murder under the felony murder rule for an attempt to commit a felony when the charge under the indictment alleged the completion of the felony did not infringe fundamental rights of defendant, since the attempt to commit the crime charge is a necessarily included offense. State v. Turnbow, 1960-NMSC-081, 67 N.M. 241, 354 P.2d 533.

Felony murder requires absence of independent intervening force. — In a felony murder, the death must be caused by the acts of the defendant or his accomplice without an independent intervening force. State v. Adams, 1979-NMSC-032, 92 N.M. 669, 593 P.2d 1072; State v. Perrin, 1979-NMSC-050, 93 N.M. 73, 596 P.2d 516.

Criminal sexual penetration as predicate felony. — Applying the strict-elements test, first degree criminal sexual penetration (CSP) is not a lesser included offense of second degree murder and, accordingly, first degree CSP could properly serve as a predicate for applying the felony-murder doctrine. State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

False imprisonment as predicate felony. — Based on evidence that the victim was forced into the back of a two-door car at gunpoint and was beaten with a gun as he was driven to an isolated location where he was shot, and that defendant and her accomplices were armed and had been drinking throughout the evening, a rational jury could find that defendant committed the crime of false imprisonment "under circumstances or in a manner dangerous to human life" as the predicate felony for felony murder. State v. Smith, 2001-NMSC-004, 130 N.M. 117, 19 P.3d 254.

Shooting at or from a motor vehicle may not serve as the predicate felony for felony murder. — Under the collateral felony rule, the predicate felony must be independent of or collateral to the homicide, and the predicate felony cannot be a lesser-included offense of second-degree murder. Shooting at or from a motor vehicle is an elevated form of aggravated battery, a lesser-included offense of second-degree murder, and thus cannot be used as a predicate for felony murder, so where defendant was convicted of first-degree felony murder, the underlying felony of which was shooting from a motor vehicle, defendant's felony murder conviction was vacated because the crime of shooting at or from a motor vehicle lacks an independent felonious purpose from that required under second-degree murder. State v. Marquez, 2016-NMSC-025.

Shooting at or from a motor vehicle cannot serve as the underlying felony sustaining a felony murder conviction. — Where defendant was convicted of first-degree felony murder predicated on the underlying felony of shooting at or from a motor vehicle, the New Mexico supreme court vacated defendant's conviction of felony murder because shooting at or from a motor vehicle is an elevated form of aggravated battery, and thus cannot be used as a predicate for felony murder. State v. Baroz, 2017-NMSC-030.

Shooting at dwelling as predicate felony. — Applying the strict-elements test, shooting at a dwelling is not a lesser included offense of second degree murder, and the offense could serve as a predicate for applying the felony-murder doctrine. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.

Convictions for felony murder and shooting at a dwelling violated defendant's right to be protected from double jeopardy. State v. Varela, 1999-NMSC-045, 128 N.M. 454, 993 P.2d 1280.

Insufficient evidence that defendant committed the predicate felony of shooting at a dwelling or occupied building. — Where defendant was convicted of felony murder predicated on the felony of shooting at a dwelling or occupied building, the evidence established that defendant and his companions targeted the victims in the course of a gunfight that took place in front of a dwelling, but did not shoot at or target the dwelling. Therefore, the evidence is not sufficient to support a conviction of felony murder predicated on the felony of shooting at a dwelling. State v. Comitz, 2019-NMSC-011.

Sentences for kidnapping and felony murder not double jeopardy. — Sentences for both kidnapping and felony murder did not violate double jeopardy since the kidnapping was sufficiently separated in time and space from the murder to establish two distinct crimes. State v. Kersey, 1995-NMSC-054, 120 N.M. 517, 903 P.2d 828.

Where the conduct underlying defendant's convictions for aggravated kidnapping and first degree felony murder was not unitary, the district court did not violate double jeopardy by convicting and sentencing defendant for both first degree felony murder and aggravated kidnapping. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140.

Unitary conduct in commission of murder and robbery. — Since the defendant's conduct in stabbing and robbing a cabdriver was unitary, the elements of armed robbery were subsumed by the elements of felony murder in the course of an armed robbery and conviction and sentencing of the defendant for both felony murder and the underlying felony of armed robbery violated double jeopardy. State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Convictions for felony murder and robbery, because they arise out of unitary conduct, violate the defendant's right to be free from double jeopardy. State v. Duffy, 1998-NMSC-014, 126 N.M. 132, 967 P.2d 807.

Where armed robbery provided the underlying felony for defendant's first degree murder conviction, the elements of the former crime were subsumed within the elements of the murder offense and, therefore, reversal of defendant's conviction and sentence for armed robbery was required. State v. Foster, 1999-NMSC-007, 126 N.M. 646, 974 P.2d 140.

Conduct not unitary. — Convictions for both felony murder and armed robbery do not violate double jeopardy principles where the evidence supports an inference that there were two distinct uses of force. State v. Reyes, 2002-NMSC-024, 132 N.M. 576, 52 P.3d 948.

Evidence of holdups inadmissible. — Evidence of two "holdups" perpetrated by defendant just prior to murder for which he is charged, and concerning which there is no evidence of robbery, was inadmissible. Roper v. Territory, 1893-NMSC-026, 7 N.M. 255, 33 P. 1014.

Not felony murder of cofelon where killing committed by resisting victim. — A coperpetrator of a felony cannot be charged under this section with the felony murder of a cofelon when the killing is committed by the intended robbery victim while resisting the commission of the offense. Jackson v. State, 1979-NMSC-013, 92 N.M. 461, 589 P.2d 1052.

IV. GREATLY DANGEROUS ACTS.

Depraved mind murder requires extremely reckless conduct evidencing indifference for the value of human life. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.

Indicators of a depraved mind. — The four indicators of a depraved mind are as follows: (1) more than one person was endangered by the defendant's act, (2) the defendant's act was intentional and extremely reckless, (3) the defendant had subjective knowledge that his act was greatly dangerous to the lives of others, and (4) the defendant's act encompassed an intensified malice or evil intent. State v. Candelaria, 2019-NMSC-004.

In defendant's trial for depraved mind murder, there was sufficient evidence to support the conviction where defendant fired a gun at a vehicle occupied by four people, striking and killing an eight-year-old child sitting in the backseat of the vehicle, and where the evidence presented at trial established that defendant admitted firing two shots at the vehicle and that defendant knew that there were multiple people in the vehicle, and from the evidence presented the jury could have reasonably come to the conclusion that defendant acted intentionally, that shooting at a vehicle full of people qualifies as outrageously reckless conduct with a depraved kind of wantonness or total indifference for the value of human life, that defendant's act of shooting at the vehicle was greatly dangerous to the life of more than one person, and that defendant had subjective knowledge of the risk he posed to the lives of those in the vehicle. State v. Candelaria, 2019-NMSC-004.

No such crime as attempted "depraved mind" murder. — The crime of attempted "depraved mind" murder does not exist since in order to convict for such an offense, the jury would have to find that the defendant intended to perpetrate an unintentional killing, a logical impossibility. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.

Defendant must subjectively know of risks. — The depraved mind provision of this section requires proof that the defendant had subjective knowledge of the risk involved in his actions. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922.

Subjective knowledge that acts are "greatly dangerous to the lives of others". — Where defendants fired at a truck they presumed was empty, killing the victim inside, subjective knowledge that their acts were greatly dangerous to the lives of others is present if those acts were very risky and, under the circumstances known to them, the defendants should have realized this very high degree of risk. State v. McCrary, 1984-NMSC-005, 100 N.M. 671, 675 P.2d 120.

Intoxication may be considered. — In a prosecution for depraved mind murder, evidence of intoxication may be considered by the jury when determining the required mens rea of "subjective knowledge," and failure to give the defendant's instruction on intoxication was reversible error. State v. Brown, 1996-NMSC-073, 122 N.M. 724, 931 P.2d 69.

Vehicular homicide by reckless conduct is lesser included offense of depraved mind murder by vehicle. State v. Ibn Omar-Muhammad, 1985-NMSC-006, 102 N.M. 274, 694 P.2d 922, modified by State v. Cleve, 1999-NMSC-017, 127 N.M. 240, 980 P.2d 23.

V. SECOND DEGREE MURDER.

Second degree murder statute is designed to discourage and punish the unlawful killing of people. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

General-intent crime. — As a "knowledge crime," second degree murder is a general-intent crime. State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

Knowledge required of defendant. — Second degree murder requires that the defendant know that his actions create a strong probability of death or great bodily harm. State v. Mireles, 2004-NMCA-100, 136 N.M. 337, 98 P.3d 727, cert. denied, 2004-NMCERT-008, 136 N.M. 492, 100 P.3d 197.

The district court erred in modifying the mens rea element in the uniform jury instruction for second-degree murder. — In defendant's trial for second-degree murder, where defendant claimed that he did not know that his shotgun was loaded prior to shooting and killing his friend, the district court erred in accepting the state's modified jury instruction which changed the mens rea element for second-degree murder to "knew or should have known" that defendant's acts created a strong probability of death or great bodily harm to the victim, because adding "should have known" to the mens rea element was a misstatement of law, and when a jury instruction directs the jury to find guilt based upon a misstatement of the law, a finding of juror misdirection is unavoidable. The second-degree murder statute's plain language and New Mexico's uniform jury instructions on second-degree murder require that the defendant possess knowledge of the probable consequences of his or her acts. State v. Suazo, 2017-NMSC-011.

Sufficient evidence supports retrial after reversal of second-degree murder conviction. — Where defendant's conviction for second-degree murder was reversed on appeal, there was sufficient evidence to support a retrial where it was undisputed that defendant killed his friend with a shotgun and there was sufficient evidence to support a reasonable jury's conclusion that, based on ambiguous evidence regarding who loaded the gun and when it was loaded, and the steps defendant took after the crime to conceal evidence, that defendant knew the gun was loaded and knew that pulling the trigger would cause great bodily harm or death to the victim, and that there was not enough evidence to constitute sufficient provocation to reduce the crime to manslaughter. State v. Suazo, 2017-NMSC-011.

Element of deliberation excluded. — The legislature intended to exclude from second degree murder the element of deliberation but not to exclude otherwise intentional killings from that crime; under New Mexico's statutory scheme, murder consists of two categories of intentional killings: those that are willful, deliberate, and premeditated; and those that are committed without such deliberation and premeditation but with knowledge that the killer's acts create a strong probability of death or great bodily harm. State v. Garcia, 1992-NMSC-048, 114 N.M. 269, 837 P.2d 862.

Includes intentional murder. — Fact that 1980 amendments require only the elements of a killing in the performance of an act which the defendant knows creates the requisite probability does not mean that second degree murder excludes intentional murders. State v. Johnson, 1985-NMCA-074, 103 N.M. 364, 707 P.2d 1174, cert. quashed, 103 N.M. 344, 707 P.2d 552.

Mens rea with respect to actual victim not necessary. — To be guilty of second degree murder, it is sufficient that the defendant have the necessary mens rea with respect to the individual toward whom the defendant's lethal act was directed; it is not necessary, however, that the defendant have this mens rea with respect to the actual victim of that act. State v. Lopez, 1996-NMSC-036, 122 N.M. 63, 920 P.2d 1017.

Second degree murder, assisted suicide, not same offense. — The second degree murder statute (Subsection B) is aimed at preventing an individual from actively causing the death of someone contemplating suicide, whereas the assisting suicide statute (Section 30-2-4 NMSA 1978) is aimed at preventing an individual from providing someone contemplating suicide with the means to commit suicide. Thus, the two statutes do not condemn the same offense. State v. Sexson, 1994-NMCA-004, 117 N.M. 113, 869 P.2d 301, cert. denied, 117 N.M. 215, 870 P.2d 753.

Suicide pact not exemption from conviction for murder. — The existence of a suicide pact does not exempt someone from a conviction for committing murder. However, that general rule may not apply if the means of attempted suicide used presents the same risk to both of the parties at the same time, such as when a couple drive off a cliff together. Such is not the case when the victim is killed by a rifle, the trigger of which is pulled by the defendant. State v. Sexson, 1994-NMCA-004, 117 N.M. 113, 869 P.2d 301, cert. denied, 117 N.M. 215, 870 P.2d 753.

There was enough evidence to support a conviction of second degree murder because there was sufficient evidence to show that the defendant actively participated in a suicide by holding the gun to the victim's head and pulling the trigger. State v. Sexson, 1994-NMCA-004, 117 N.M. 113, 869 P.2d 301, cert. denied, 117 N.M. 215, 870 P.2d 753.

Cause of death. — Evidence that defendant orchestrated the beating of the victim, that he used both his fists and a baseball bat to hit the victim, that the victim's condition worsened shortly thereafter, and that the victim died, permitted the jury to make a reasonable inference that the acts of the defendant constituted a significant cause of the victim's death and that there was no other independent event that broke the chain of events from the beating to the victim's death. State v. Huber, 2006-NMCA-087, 140 N.M. 147, 140 P.3d 1096, cert. denied, 2006-NMCERT-007, 140 N.M. 279, 142 P.3d 360.

Sufficient evidence of second degree murder. — Where defendant lived with the victim for approximately one and a half months before the victim disappeared; a few weeks later, the victim's decomposed body was discovered wrapped in a blue air mattress and sheets, and covered with a mattress in an alley approximately 500 feet from defendant's apartment; defendant's parent testified that the parent sent a blue air mattress and a set of sheets to defendant; grid marks on the air mattress resembled the grid marks of a shopping cart; there was a shopping cart at the scene; shopping carts were found in defendant's apartment; DNA found on a pair of jeans near the body provided a possible link between the body and defendant; and the victims' blood was found on the carpet in defendant's apartment, the evidence was sufficient to permit the jury to find defendant guilty of second degree murder. State v. Schwartz, 2014-NMCA-066, cert. denied, 2014-NMCERT-006.

Sufficient evidence of second degree murder. — In defendant's murder trial, where the evidence showed that defendant was in the passenger seat of a truck that drove by the victim's residence, that a witness observed the "muzzle flash" from shots fired from the passenger side window of the truck in which defendant was the passenger, that the shots fired resulted in the victim's death, and where defendant admitted at trial that he knew that shooting in the direction of a group of people in a residential area presented a danger to human life, there was sufficient evidence for a jury to find beyond a reasonable doubt that defendant killed the victim and knew that his acts created a strong probability of death or great bodily harm to the victim or any other human being; the evidence was sufficient to support a conviction of second-degree murder. State v. Baroz, 2017-NMSC-030.

VI. MANSLAUGHTER.

Distinction between murder and manslaughter. — To reduce the killing from murder to voluntary manslaughter all that is required is sufficient provocation to excite in the mind of the defendant such emotions as either anger, rage, sudden resentment or terror as may be sufficient to obscure the reason of an ordinary man, and to prevent deliberation and premeditation, and to exclude malice, and to render the defendant incapable of cool reflection. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Manslaughter is included in charge of murder. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969); State v. Lopez, 1942-NMSC-064, 46 N.M. 463, 131 P.2d 273; State v. La Boon, 1960-NMSC-118, 67 N.M. 466, 357 P.2d 54.

Under appropriate circumstances, where there is evidence that the defendant acted as a result of sufficient provocation, a charge of manslaughter could properly be said to be included in a charge of murder, and, accordingly, it would not be error to submit N.M.U.J.I. Crim. 2.20 (now see UJI 14-220) to the jury; however, it cannot seriously be maintained that manslaughter is invariably "necessarily included" in murder, since different kinds of proof are required to establish the distinct offenses. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

One indicted of murder could be found guilty of manslaughter, provided there was sufficient evidence on that issue. United States v. Densmore, 1904-NMSC-004, 12 N.M. 99, 75 P. 31.

Effect of unsupported manslaughter conviction. — 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. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Instruction not appropriate. — In prosecution for first degree murder, where the uncontradicted evidence was that defendant killed her husband with two and possibly three well placed shots into his person, which shots were fired at close range while the victim was lying down on the couch and while defendant stood over him, immediately after a discussion about the victim leaving the defendant, and that the shots came from a pistol purchased by appellant earlier the day of the homicide, no foundation existed for instruction on involuntary manslaughter. State v. Gardner, 1973-NMSC-034, 85 N.M. 104, 509 P.2d 871, cert. denied, 414 U.S. 851, 94 S. Ct. 145, 38 L. Ed. 2d 100 (1973).

Voluntary manslaughter instruction refused where no provocation. — Defendant could not create the provocation which would reduce murder to manslaughter, and his requested instruction on attempted voluntary manslaughter was therefore properly refused. State v. Durante, 1986-NMCA-024, 104 N.M. 639, 725 P.2d 839.

Defendant in first degree murder prosecution was not entitled to voluntary manslaughter instruction where there was no evidence of provocation on the part of victim. State v. Brown, 1998-NMSC-037, 126 N.M. 338, 969 P.2d 313.

Use of too great force as manslaughter. — Defendant's choice of deadly force when confronted with a possible battery of less than deadly force would sustain a conviction of voluntary manslaughter, but not for murder. State v. McLam, 1970-NMCA-129, 82 N.M. 242, 478 P.2d 570.

VII. DEFENSES.

General rule as to insanity. — The rule of law applicable to the defense of insanity in criminal cases is that, at the time of committing the act, the accused, as a result of disease of the mind, (a) 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. State v. White, 1954-NMSC-050, 58 N.M. 324, 270 P.2d 727.

Proof of derangement short of insanity. — In a murder trial, proof of mental derangement short of insanity is admissible, as evidence of lack of deliberation or premeditated design; this contemplates full responsibility, but only for the crime actually committed. State v. Padilla, 1959-NMSC-100, 66 N.M. 289, 347 P.2d 312.

Reduction of charge to second degree murder. — The court should have instructed the jury that they might consider mental defects and mental condition in ascertaining whether or not defendant had the power to deliberate the acts charged, so as to reduce the charge from first degree murder to second degree murder. State v. Padilla, 1959-NMSC-100, 66 N.M. 289, 347 P.2d 312.

No reduction of charge to manslaughter. — While a disease or defect of the mind may render an accused incapable of cool deliberation and premeditation and may be sufficient to reduce the charge against him from first to second degree murder, it does not follow that such mental condition may reduce the charge to voluntary manslaughter. State v. Chambers, 1972-NMSC-069, 84 N.M. 309, 502 P.2d 999.

Use of expert evidence on incapacity. — Nothing compels the trier of the facts to disregard the nonexpert testimony and to accept the opinions of defendant's medical experts as to his probable state of mind and incapacity to control his will at the time of committing a criminal act. The jury is not required to accept these expert opinions and disregard all other evidence bearing on the question of his mental and emotional state, nor is the trial court bound to accept these expert opinions and dismiss the charges of first and second degree murder. State v. Smith, 1969-NMCA-016, 80 N.M. 126, 452 P.2d 195.

Voluntary intoxication is no defense to murder in second degree. State v. Gray, 1969-NMCA-102, 80 N.M. 751, 461 P.2d 233; State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62.

In this state, no specific intent to kill is required for a conviction for second degree murder; hence, voluntary intoxication is no defense to such a charge. State v. Tapia, 1970-NMSC-004, 81 N.M. 274, 466 P.2d 551.

Intoxication may reduce depraved mind murder. — Evidence of intoxication may be considered to reduce first degree depraved mind murder to second degree murder, but it may not be used to reduce second degree murder to voluntary manslaughter or involuntary manslaughter, or to completely excuse the defendant from the consequences of his unlawful act. State v. Brown, 1996-NMSC-073, 122 N.M. 724, 931 P.2d 69.

Jury to determine effect of intoxication. — In a homicide case the defendant is entitled to have the jury determine the degree and effect of his intoxication upon his mental capacity and deliberative powers; however, the evidence as to intoxication must be substantial and must relate to defendant's condition as of the time of the commission of the homicide, or be so closely related in time that it can reasonably be inferred that the condition continued to the time of the commission of the homicide. State v. Williams, 1966-NMSC-145, 76 N.M. 578, 417 P.2d 62.

Lack of justification not element of homicide. — Every killing of a person by another is presumed to be unlawful, and only when it can be shown to be excusable or justifiable will it be held otherwise; when the evidence permits, excuse of justification may be raised as a defense and decided by the fact finder, but initially, the absence of excuse or justification is not an element of homicide to be proven by the prosecution. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153.

Defendant to raise reasonable doubt. — Defendant, of course, did not have the burden of proving that he killed in self-defense. All he was required to do was produce evidence which would raise a reasonable doubt in the minds of the jurors. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Issue of self-defense for jury. — The line of demarcation between a homicide which amounts to voluntary manslaughter and one which amounts to justifiable homicide in self-defense is not always clearly defined and depends upon the facts of each case as it arises. Those facts are for the jury, under instructions from the court, laying down the principles of law governing the same, as was done in this case. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Defendant not entitled to self-defense instruction. — In defendant's murder trial, where the evidence demonstrated that defendant provoked the situation when defendant and his father drove to the victim's residence and shouted "southside," and where the victim and others in the yard of the residence approached the truck in which defendant was the passenger, it was not reasonable for defendant to have used deadly force, and because defendant voluntarily entered into the situation, he cannot avail himself of the law of self-defense; the district court did not err in rejecting defendant's self-defense instruction. State v. Baroz, 2017-NMSC-030.

Instruction improper. — Defendant in homicide prosecution claiming self-defense was not entitled to instruction on justifiable homicide under belief that deceased was about to have carnal intercourse with defendant's wife. State v. Greenlee, 1928-NMSC-020, 33 N.M. 449, 269 P. 331.

Justifiable killing. — Where defendant was violently assaulted by deceased, and then defendant drew his pistol and fired two shots at deceased which killed him instantly, such killing was not cruel and unusual within statutes defining murder, since the killing was justifiable. Territory v. Fewel, 1888-NMSC-018, 5 N.M. 34, 17 P. 569.

Defense of chastity. — In murder prosecution, the refusal of an instruction that the defense of one's person included, in the case of a woman, the protection of her chastity and that if, under the circumstances, she had reason to believe that the attack would lead to the sexual abuse of her person, she would be justified in using such force as was necessary, even to the extent of taking the life of her assailant, to protect her honor and chastity and her body from sexual abuse, was erroneous where the defense was that accused killed decedent to protect herself from an attempted rape. State v. Martinez, 1924-NMSC-075, 30 N.M. 178, 230 P. 379.

Defense of habitation. — Where defense of habitation was invoked in homicide case, the danger or apparent danger was to be considered from standpoint of prisoner at time shot was fired, and not according to facts as they developed at trial. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Instruction that injury to dwelling to be felonious so as to justify killing must be of a substantial character constituted prejudicial error. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Killing in prevention of crime. — A well-founded belief that a known felony was about to be committed will extenuate a homicide committed in prevention of the supposed crime, and this upon a principle of necessity; but when the necessity ceases, and the supposed felon flees, and thereby abandons his proposed design, a killing in pursuit, however well-grounded the belief may be that he intended to commit a felony, will not extenuate the offense of the pursuer. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Murder while resisting arrest. — Killing of person making authorized arrest is murder but where the arrest is illegal, the offense is reduced to manslaughter, unless the proof shows express malice toward the deceased. If the outrage of an attempted illegal arrest has not excited the passions, a killing will be murder. Territory v. Lynch, 1913-NMSC-038, 18 N.M. 15, 133 P. 405, overruled by State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673.

Instruction not proper in absence of awareness of arrest. — Where defendant in homicide case was unaware that an attempt to arrest him was to be made, his action in killing the officer was to be viewed as in any other case, and instruction as to illegality of arrest reducing the offense to manslaughter was properly refused. State v. Middleton, 1920-NMSC-066, 26 N.M. 353, 192 P. 483.

Murder while resisting search. — Homicide committed in resisting deputy sheriff who was searching defendant's house without a warrant was first degree murder if such resistance constituted a felony, as when the deputy had been engaged in serving any process, rule or order of court, or judicial writ, and instruction leaving jury to determine degree of murder was erroneous. State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211.

VIII. INDICTMENT AND INFORMATION.

Open charge of murder sufficient notice. — A charge of murder in violation of statutes pertaining to first and second degree murder and voluntary and involuntary manslaughter is not a charge of mutually exclusive crimes, nor is it a charge of distinct and separate offenses; rather, the charge is an open charge of murder, a form of charging approved, under which the jury is to be instructed on the degrees of the unlawful killing for which there is evidence, and it gave defendant notice that he must defend against a charge of unlawfully taking a human life. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Allegation of murderous intent not required. — Murder indictment may omit direct charge of purpose or intent to kill, as part of overt act alleged as a crime. Territory v. Montoya, 1912-NMSC-015, 17 N.M. 122, 125 P. 622.

Transferred intent need not be charged. — Where the defendant, indicted on an "open" charge of murder, contends that since he was not charged under the specific transferred intent subsection that the instruction on that theory was improper, the defendant misapprehends the nature of this theory. Transferred intent is merely the doctrine that allows the elements of malice or intent to be demonstrated when an "innocent" nonoriginal victim is killed, and therefore, it is not necessary to charge the defendant with transferred intent because the indictment specifically informed the defendant of the crime and what he must be prepared to meet. State v. Hamilton, 1976-NMSC-082, 89 N.M. 746, 557 P.2d 1095.

Aggravating circumstances not alleged. — Death penalty proceedings are not precluded where the indictment does not allege the existence of aggravating circumstances. Since aggravating circumstances are not elements of the crime of murder, an indictment is not deficient for failure to allege them. State v. Morton, 1988-NMCA-063, 107 N.M. 478, 760 P.2d 170 (decided under prior law).

Charge sufficiently specific. — The charge, "by shooting him with a gun," gave defendant sufficient particulars of the offense alleged to enable the defendant to prepare a defense. State v. Smith, 1966-NMSC-128, 76 N.M. 477, 416 P.2d 146.

Adequate charge on cause of victim's death. — An indictment for first degree murder, in other respects sufficient, which concluded in the following language, "did strike and beat the said Juan Trujillo, giving to him, the said Juan Trujillo, in and upon the top of the head of him the said Juan Trujillo, one mortal contusion bruise, fracture and wound, of which said mortal wound, the said Juan Trujillo thence continually languished until . . . he there died" charged that deceased died of the mortal wound alleged to have been inflicted by defendant. Territory v. Lobato, 1913-NMSC-030, 17 N.M. 666, 134 P. 222, aff'd, 242 U.S. 199, 37 S. Ct. 107, 61 L. Ed. 244 (1916).

District attorney may obtain indictment for first degree murder following second degree indictment. — Where a defendant is originally indicted for second degree murder, but later the district attorney reviews the case and decides the evidence supports first degree murder, he may seek and obtain a second indictment, this time for first degree murder. State v. Sena, 1983-NMSC-005, 99 N.M. 272, 657 P.2d 128.

May not charge first degree murder in information based on second degree bind-over. — A prosecutor is not authorized to charge first degree murder in an information based on a magistrate's bind-over order for trial on second degree murder. State v. McCrary, 1982-NMCA-003, 97 N.M. 306, 639 P.2d 593.

Indictment charging first degree murder would support second degree murder conviction. Territory v. McGinnis, 1900-NMSC-019, 10 N.M. 269, 61 P. 208, overruled on other grounds by State v. Deltenre, 1966-NMSC-187, 77 N.M. 497, 424 P.2d 782, cert. denied, 386 U.S. 976, 87 S. Ct. 1171, 18 L. Ed. 2d 136 (1967).

Waiver of indictment not constitutionally required. — Defendant's rights under the fifth and fourteenth amendments to the United States constitution were not violated when his murder prosecution was based upon an information filed by the district attorney, despite the fact that he never waived his right to be tried by indictment. State v. Vaughn, 1971-NMSC-015, 82 N.M. 310, 481 P.2d 98, cert. denied, 403 U.S. 933, 91 S. Ct. 2262, 29 L. Ed. 2d 712 (1971).

Information charging murder sufficient. — Information charging that defendant did "murder" a named person was sufficient apprisal of offense charged. State v. Roy, 1936-NMSC-048, 40 N.M. 397, 60 P.2d 646.

Information permits submission of felony murder. — Under an information charging murder in the ordinary form, it was not improper to permit introduction of proof that murder was committed in perpetrating a felony. State v. Smith, 1947-NMSC-035, 51 N.M. 184, 181 P.2d 800.

Information permits voluntary manslaughter. — Although information charged only first degree murder, submission of voluntary manslaughter was not error. State v. Burrus, 1934-NMSC-036, 38 N.M. 462, 35 P.2d 285.

Appropriate crime charged. — The offense of murder and the offense of child abuse resulting in the child's death are not the same, nor is the same proof required for the two offenses, since generally speaking, murder requires an intent, whereas child abuse does not require an intent, and therefore, the indictment properly charged defendant with first degree murder. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628.

IX. EVIDENCE AND PROOF.

Evidence sufficient for conviction. — Where defendant testified that the victim pounded on the door of defendant's house, that the victim stated that the victim would spray defendant's house with bullets, and that as the victim started to drive away, the victim leaned over in a way that made defendant believe that the victim was reaching for a gun; defendant then shot and killed the victim; and there was evidence that the victim had been shot in the back, there was sufficient evidence to permit the jury to determine that defendant was not acting in self-defense or as a result of legally sufficient provocation and to support defendant's conviction of second degree murder. State v. Herrera, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.

Aggravating circumstances outweigh mitigating circumstances. — Standard of proof in the weighting process that the jury must find beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances is neither constitutionally nor statutorily required. State v. Fry, 2006-NMSC-001, 138 N.M. 700, 126 P.3d 516.

Admission of unavailable accomplice's tape recorded custodial police interview was not harmless error because it provided key evidence directly inculpating defendant convicted of felony murder, and remaining circumstantial evidence against him, although strong, was disputed. State v. Johnson, 2004-NMSC-029, 136 N.M. 348, 98 P.3d 998.

Defendant entitled to details. — A defendant in a murder case is entitled to know the exact date and the approximate time of day, the exact place where the body was found, and a description and identification details of the means or weapon used. State v. Mosley, 1965-NMSC-081, 75 N.M. 348, 404 P.2d 304.

Admissibility of evidence in discretion of court. — The admissibility of evidence is a matter addressed to the sound discretion of the trial court. State v. Armstrong, 1956-NMSC-053, 61 N.M. 258, 298 P.2d 941.

Corpus delicti rule. — A defendant's extrajudicial statements may be used to establish the corpus delicti when the prosecution is able to demonstrate the trustworthiness of the confession and introduce some independent evidence of a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

Proof of corpus delicti. — Where defendant was charged with first degree abuse of a child resulting in death; the child died without any physical signs of trauma; defendant confessed to suffocating the child with a blanket; the evidence confirmed the statements made by defendant in the confession; the evidence also showed that the child was in normal respiratory and cardiovascular health on the day prior to the child's death, the child had not been breathing before the child was taken to an emergency room even though there was no underlying medical condition that would kill the child, defendant made false statements to police and medical personnel about the child's medical record suggesting that defendant portrayed the child as chronically sick to cover up a crime, and the cause of death was consistent with a blockage to the mouth and nose, the corpus delicti of the crime was established because the evidence corroborated the trustworthiness of defendant's confession and independently showed that the child died from a criminal act. State v. Wilson, 2011-NMSC-001, 149 N.M. 273, 248 P.3d 315.

To prove the corpus delicti in a homicide case, the state must show that the person whose death is alleged is in fact dead and that his death was criminally caused. State v. Coulter, 1973-NMCA-019, 84 N.M. 647, 506 P.2d 804.

In homicide cases the corpus delicti is established upon proof of the death of the person charged in the information or indictment, and that the death was caused by the criminal act or agency of another. State v. Armstrong, 1956-NMSC-053, 61 N.M. 258, 298 P.2d 941.

In homicide cases, if it was shown that person whose death was alleged in indictment was in fact dead, and that his death was criminally caused, the corpus delicti was sufficiently proven; circumstantial evidence would be sufficient, and eyewitness testimony was unnecessary. State v. Chaves, 1921-NMSC-105, 27 N.M. 504, 202 P. 694.

Proof adequate. — Where it is obvious from the evidence that deceased died as a result of wounds inflicted by someone with some sharp object at the time in question, the corpus delicti has been adequately proven. State v. Casaus, 1963-NMSC-194, 73 N.M. 152, 386 P.2d 246.

Effect of lack of proof of corpus delicti. — Where there was no substantial evidence of corpus delicti in homicide case, verdict finding defendant guilty of second degree murder would be set aside on appeal. State v. Woodman, 1920-NMSC-028, 26 N.M. 55, 188 P. 1101.

"Substantial evidence" of cause of death. — Where the pathologist testified that death ". . . was the direct result of complications from the bullet wounds, the complications being infection . . .," and that the cause of death was gunshot wounds, this is "substantial evidence" as that term has been defined in New Mexico decisions. State v. Ewing, 1968-NMCA-071, 79 N.M. 489, 444 P.2d 1000.

Effect of medical treatment of victim on cause of death. — Surgical operation undertaken to save one from the probable fatal effect of a wound did not preclude homicide conviction unless it clearly appeared that maltreatment of the wound, and not the wound itself, was the sole cause of the death. Territory v. Yee Dan, 1894-NMSC-004, 7 N.M. 439, 37 P. 1101.

Use of circumstantial evidence. — Circumstantial evidence is sufficient to establish guilt in a prosecution for homicide; those circumstances must point unerringly to the defendant and be incompatible with and exclude every reasonable hypothesis other than guilt. State v. Coulter, 1973-NMCA-019, 84 N.M. 647, 506 P.2d 804.

Threats made by accused admissible. — Threats made by accused to kill some person not definitely designated were admissible with other explanatory matter on issue of corpus delicti especially when made shortly before commission of crime. State v. Martinez, 1919-NMSC-022, 25 N.M. 328, 182 P. 868.

Evidence of motive. — Evidence of facts which could not operate on mind of defendant were inadmissible to show motive. State v. Allen, 1920-NMSC-015, 25 N.M. 682, 187 P. 559.

Deceased's reputation and disposition. — Trial court in second degree murder prosecution properly excluded proffered testimony which defense wanted to use to corroborate the testimony of other witnesses which showed the deceased's reputation and disposition for fighting, his violent temper and his conduct as a bully. State v. Snow, 1972-NMCA-138, 84 N.M. 399, 503 P.2d 1177, cert. denied, 84 N.M. 390, 503 P.2d 1168.

Escape evidence admitted to show depraved mind. — District court did not abuse its discretion in determining that evidence of defendant's unauthorized departure from a Colorado juvenile detention facility was admissible at his trial for murder, where the court properly could have concluded that defendant's reasons for eluding the police were circumstantial evidence relevant to the jury's determination of whether his acts indicated a depraved mind regardless of human life and whether he had a subjective knowledge of the risk involved in his actions. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165.

Polygraph test results. — Polygraph test results may be admitted when qualifications of the polygraph operator establish his expertise, there is testimony to establish the reliability of the testing procedure employed as approved by the authorities in the field and there is evidence to show the validity of the tests made on the particular subject. However, requirements that polygraph tests be stipulated to by both parties and that no objection be made at trial to their introduction are mechanistic, inconsistent with due process and repugnant to the New Mexico rules of evidence. State v. Dorsey, 1975-NMSC-040, 88 N.M. 184, 539 P.2d 204 (affirming court of appeals, which had ruled polygraph results offered by defendant admissible to show intent and provocation); aff'g, 1975-NMCA-022, 87 N.M. 323, 532 P.2d 912.

Photographs of body. — Question of inflammation and possible prejudice, created by admission into evidence of photographs of body of alleged victim in murder trial, is left to the discretion of the trial judge absent a showing of abuse of that discretion. State v. Gardner, 1973-NMSC-034, 85 N.M. 104, 509 P.2d 871, cert. denied, 414 U.S. 851, 94 S. Ct. 145, 38 L. Ed. 2d 100 (1973).

The admission into evidence in a murder trial of photographs of the decedent taken during her autopsy is proper if they are reasonably relevant to material issues in the trial, showing the identity of the victim, and the number and location of the wounds inflicted upon her body. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040, cert. denied, 99 N.M. 148 655 P.2d 160.

Photographs of the body of the victim were relevant to the issues of the case in that they were used by the doctors to describe the injuries and condition of the body, and served to clarify and illustrate the testimony of witnesses and to corroborate other evidence. The admission of photographs into evidence rests within the sound discretion of the trial court and absent a showing of an abuse the trial court's discretion will not be disturbed. State v. Coulter, 1973-NMCA-019, 84 N.M. 647, 506 P.2d 804.

Admission of hearsay constitutionally impermissible under circumstances. — Admission of extra-judicial statements attributed to children of murder victim was reversible error where the children were not called as witnesses, because defendant was thereby denied his constitutional right of confrontation. State v. Lunn, 1971-NMCA-048, 82 N.M. 526, 484 P.2d 368.

Effect of admission of illegal evidence. — In prosecution for first or second degree murder under Laws 1891, ch. 80, §§ 4, 5, 1063, 1064, 1897 C.L., repealed by Laws 1907, ch. 36, § 23, verdict of first degree murder could not stand unless it was apparent that no injury resulted from admission of illegal evidence. Territory v. Armijo, 1894-NMSC-003, 7 N.M. 428, 37 P. 1113.

Transcript of taped confession. — Where the state conceded (during closing arguments) that the transcript of defendant's taped confession was erroneous, and the district court, counsel for the prosecution, and the defense counsel urged the jury to rely upon the tapes over the transcript as evidence, any misleading statements in the transcript were adequately corrected so that defendant's due process rights were not violated. State v. Boeglin, 1987-NMSC-002, 105 N.M. 247, 731 P.2d 943.

Accomplice testimony sufficient. — Evidence, consisting primarily of accomplice testimony, was sufficient to allow a reasonable jury to find that defendant participated in a conspiracy to commit a murder, and actually participated in the murder, as well as the attempted murder of another victim. State v. Sarracino, 1998-NMSC-022, 125 N.M. 511, 964 P.2d 72.

Evidence that defendant and the defendant's accomplice threw victim into the well while he was alive, then covered and finally resealed the well supports an inference that they reached an agreement to kill victim in the course of the robbery, and that both intended his death, supports the jury's verdict of guilty of first degree (felony) murder. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754. overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

Evidence sufficient for conviction. — Where defendant admitted that defendant shot toward a house multiple times with two different weapons while a party was in progress; other witnesses testified that defendant opened fire on the house without any one firing back at defendant; and the shots defendant fired at the house killed one victim, there was sufficient evidence to support defendant's felony murder conviction. State v. Torrez, 2013-NMSC-034.

Where, following a fight at a bar between the victim and a conspirator, defendant and a conspirator assaulted the victim at a conspirator's residence and tied the victim up; defendant guarded the victim with a knife; another conspirator gave the victim an overdose of heroin; defendant and conspirators carried the victim to the victim's car and drove the car to a church; the victim was still alive; defendant tried three times to snap the victim's neck, a conspirator tried to suffocate the victim with a plastic bag, and defendant tried to strangle the victim with the victim's shoelaces; defendant and the conspirators left the church; after consulting with other conspirators, defendant and a conspirator returned to the church and set the victim and the victim's car on fire; and the victim's death was caused by the drug overdose and the fire, there was substantial evidence that defendant willfully, deliberately murdered the victim. State v. Gallegos, 2011-NMSC-027, 149 N.M. 704, 254 P.3d 655.

Evidence that on the day deceased was shot, defendant visited the deceased's home on three different occasions, an argument developing between the two during the second visit and that when defendant returned for the third time he shot a witness and the deceased, along with the inferences the jury was entitled to draw from the evidence, was sufficient to sustain conviction of first degree murder. State v. Riggsbee, 1973-NMSC-109, 85 N.M. 668, 515 P.2d 964.

Where defendant had armed himself with a rock before entering victim's apartment, admitted striking the victim with the rock when she caught him in the house, and stated that she fell and hit her head against a table, the facts and circumstances unerringly established appellant's guilt of first degree murder beyond any reasonable doubt. State v. Jimenez, 1972-NMSC-073, 84 N.M. 335, 503 P.2d 315; State v. Sanders, 1994-NMSC-043, 117 N.M. 452, 872 P.2d 870; State v. Rojo, 1999-NMSC-001, 126 N.M. 438, 971 P.2d 829; State v. Trujillo, 2002-NMSC-005, 131 N.M. 709, 42 P.3d 814.

There was sufficient evidence to support a conviction for second degree murder where there was testimony that the defendant was present at the stabbing scene and argued with the victim, the knife belonged to the defendant, a witness saw the defendant with the knife, observed him open it, and testified that he washed blood off of it and instructed the witness to dispose of it, and where nobody else was involved in the altercation, the medical examiner testified that the fatal stab wound could have been made with the defendant's knife, and the defendant was apprehended fleeing from the scene shortly after the stabbing occurred. State v. Gurule, 2004-NMCA-008, 134 N.M. 804, 82 P.3d 975.

Where defendant was upset and depressed after defendant's girlfriend ended their six-year relationship; defendant made futile attempts to reconcile with defendant's girlfriend; defendant was obsessive about the relationship; defendant's girlfriend began dating the victim; defendant moved to California; while defendant was in California, defendant made statements to a witness in New Mexico that defendant was returning to New Mexico because defendant "didn't take care of things" before defendant left New Mexico and how defendant would "just get everything done"; when defendant returned to New Mexico, defendant broke into defendant's girlfriend's apartment and left a letter stating that defendant wished to reconcile and making threats regarding the victim; on the day of the murder, defendant and the victim began to argue about defendant's girlfriend; defendant went into defendant's apartment and immediately came running out of the apartment yelling "I'll kill you" as defendant began to shoot at the victim; defendant shot first about thirty-eight feet away from the victim and then ran towards the victim and fired four or five more shots; and defendant fired two shots less than four inches from the victim and then shot the victim a final time as the victim was attempting to escape from a car, there was substantial evidence to support the jury's conclusion that defendant killed the victim with deliberate intent. State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

Sufficient evidence of first-degree murder. — Where defendant was convicted of two counts of first-degree murder, there was sufficient evidence to support the conviction where cell phone records showed that defendant and one of the shooting victims were in contact on the night of the murders, that text messages from the victim to defendant showed that the victim was upset with defendant, which could support an inference of a conflict between the two, where cell phone tower records indicated that defendant was in the area where the victim was murdered at the approximate time when the murders were believed to have occurred, and where a witness reported seeing defendant with a firearm only a few hours after the approximate time of the murders. State v. Carrillo, 2017-NMSC-023.

Sufficient evidence of first-degree murder and attempted first-degree murder. — Where defendant was convicted of first-degree murder and attempted first-degree murder, and where the state presented evidence at trial that defendant spent the day before the murder with another man who had a motive to kill the victim, that defendant secured for himself and the other man a ride to the apartment complex where the victim lived, that defendant and the other man disappeared from sight before gunshots were heard, that defendant and the other man were seen running back to their vehicle before driving off, and that occupants of the vehicle testified that defendant smelled like burnt matches, which is similar to the smell of gunpowder, there was sufficient evidence to support a jury finding that defendant had the deliberate intent to kill the victim, that he helped in the planning of the crime, and that he actively participated in the actual attempt to kill the victim. State v. Torres, 2018-NMSC-013.

Limitations to felony murder doctrine. — While the wording of this section is broad, New Mexico has created five main limitations to the felony murder doctrine to ensure that defendants convicted of felony murder have a culpable mental state consistent with the legislature's retributive and punitive goals.. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

Accomplices. — A defendant may not be held liable for depraved mind murder when he or his accomplice did not commit the lethal act that killed an innocent bystander. State v. O'Kelly, 2004-NMCA-013, 135 N.M. 40, 84 P.3d 88, cert. quashed, 2005-NMCERT-001, 137 N.M. 17, 106 P.3d 578.

Evidence that defendant and the defendant's accomplice threw victim into the well while he was alive, then covered and finally resealed the well supports an inference that they reached an agreement to kill victim in the course of the robbery, and that both intended his death, supports the jury's verdict of guilty of first degree (felony) murder. State v. Lopez, 2005-NMSC-036, 138 N.M. 521, 123 P.3d 754, overruled on other grounds by State v. Frawley, 2007-NMSC-057, 143 N.M. 7, 172 P.3d 144.

X. JURY INSTRUCTIONS.

Requisites of instructions. — All that can be required of court's instructions is that they properly give to the jury the essential facts which must be established beyond a reasonable doubt before the defendant can be convicted. State v. Anaya, 1969-NMSC-130, 80 N.M. 695, 460 P.2d 60.

Failure to define crime. — An instruction on second degree murder which did not define the offense was insufficient. Territory v. Gutierrez, 1905-NMSC-018, 13 N.M. 138, 79 P. 716.

Instruction on motive required. — Where all the evidence is circumstantial and there is no proof of motive, it was incumbent on trial judge to present a properly framed instruction on motive, instructing the jury that absence of evidence thereof should be considered along with all other circumstances in determining guilt or innocence of one accused of murder. State v. Vigil, 1975-NMSC-013, 87 N.M. 345, 533 P.2d 578.

Offenses submitted depend on supporting evidence. — Defendant in murder trial had the right to have instructions on lesser included offenses submitted to the jury, but this right depended on there being some evidence tending to establish the lesser included offenses. State v. Anaya, 1969-NMSC-130, 80 N.M. 695, 460 P.2d 60.

The court was only required to charge as to such degrees of murder as evidence tended to sustain. It was the duty of the court to charge as to all such degrees, and failure to do so was error. Territory v. Romero, 1883-NMSC-006, 2 N.M. 474.

An accused is entitled to an instruction on second degree murder if there is some evidence in the record to support it. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Evidence to support instruction on intoxication. — To authorize an instruction on intoxication the record must contain some evidence showing or tending to show that defendant consumed an intoxicant and that the intoxicant affected his mental state at or near the time of the homicide. The instruction does not, however, require expert evidence regarding the effect of intoxication upon defendant's ability to form a deliberate intent to kill. State v. Privett, 1986-NMSC-025, 104 N.M. 79, 717 P.2d 55.

Testimony from accomplices that murder defendant had consumed alcohol and methamphetamine on the evening of the murder, and expert testimony about the effect of those substances on the ability to form intent, was sufficient to warrant an instruction on intoxication. State v. Begay, 1998-NMSC-029, 125 N.M. 541, 964 P.2d 102.

Voluntary intoxication instruction was not appropriate for second degree murder. — Where defendant, who had consumed a large quantify of alcohol and who was walking along a ditch with friends, encountered the victim; the friend began punching and kicking the victim; defendant provided the friend with a knife that the friend used to fatally stab the victim; and at trial, defendant requested an instruction on voluntary intoxication; and defendant was acquitted of conspiring to commit first degree murder and convicted of being an accessory to second degree murder, the voluntary intoxication instruction was not appropriate in the context of accessory liability for second degree murder, because second degree murder is a general intent crime. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Where defendant, who had consumed a large quantify of alcohol and who was walking along a ditch with friends, encountered the victim; the friend began punching and kicking the victim; defendant provided the friend with a knife that the friend used to fatally stab the victim; and at trial, defendant requested an instruction on voluntary intoxication; and defendant was acquitted of conspiring to commit first degree murder and convicted of being an accessory to second degree murder, the voluntary intoxication instruction was not appropriate in the context of accessory liability for second degree murder, because second degree murder is a general intent crime. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Submission of first degree charge required. — As there was evidence to the effect that the killing occurred while the defendant was in the commission of or an attempt to commit robbery, there was evidence from which the jury could have found that the homicide was committed while in the act of perpetrating a felony and the submission of the charge of first degree murder became a statutory mandate. State v. Torres, 1971-NMSC-039, 82 N.M. 422, 483 P.2d 303, overruled on other grounds by State v. Wilson, 1973-NMSC-093, 85 N.M. 552, 514 P.2d 603. But see State v. Harrison, 1977-NMSC-038, 90 N.M. 439, 564 P.2d 1321.

Where the defendant was engaged in committing a felony at time gun was accidentally discharged, trial court did not err in instructing that under the circumstances the accidental discharge did not reduce the homicide below first degree murder. State v. Smith, 1947-NMSC-035, 51 N.M. 184, 181 P.2d 800.

Under former law, it was not error for court to charge that there was no evidence to show that the killing of the deceased was justifiable, or that there was any circumstance to bring it within the definition of any degree of murder less than the first where all evidence showed that the killing took place during a robbery. Territory v. Romero, 1883-NMSC-006, 2 N.M. 474.

Depraved mind instruction held improper. — Where defendant was charged with depraved mind murder involving a motor vehicle and the trial court instructed the jury that to find defendant guilty of first degree murder, the jury had to find that defendant drove defendant's vehicle erratically and recklessly for a long distance striking the victims, the jury instruction misstated the law on depraved mind murder, because the instruction did not require the jury to find that defendant's conduct was extremely reckless. State v. Dowling, 2011-NMSC-016, 150 N.M. 110, 257 P.3d 930.

Defendant has burden to introduce evidence for lesser included offense instruction. — The defendant has the burden to come forward with evidence establishing sufficient provocation in order to be entitled to an instruction on voluntary manslaughter as a lesser included offense. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Instruction on lesser degree improper. — Where state established a case which would have sustained conviction of first degree murder, instruction of the court permitting conviction of second degree murder was reversible error. State v. Reed, 1934-NMSC-085, 39 N.M. 44, 39 P.2d 1005.

Where evidence on charge of first degree murder did not tend to reduce crime to murder in the second degree, court was not authorized to instruct on second degree murder. State v. Granado, 1913-NMSC-017, 17 N.M. 542, 131 P. 497.

Where evidence showed either first degree murder or excusable homicide, it was proper to instruct the jury that in their verdict they must either find defendant guilty of first degree murder or not guilty, and court properly refused to give instructions in the second or third degrees. Sandoval v. Territory, 1896-NMSC-020, 8 N.M. 573, 45 P. 1125 (decided under prior law).

In murder prosecution, where evidence showed either murder in the first degree, or nothing, court properly instructed on first degree murder only. Faulkner v. Territory, 1892-NMSC-015, 6 N.M. 464, 30 P. 905.

Refusal by the trial court to give an instruction on second degree murder is appropriate when the evidence simply did not support a finding of second degree murder. There was no evidence that the killing was anything less than deliberate and intentional. State v. Aguilar, 1994-NMSC-046, 117 N.M. 501, 873 P.2d 247, cert. denied, 513 U.S. 859, 115 S. Ct. 168, 130 L. Ed. 2d 105, and cert. denied, 513 U.S. 865, 115 S. Ct. 182, 130 L. Ed. 2d 116 (1994).

Instructions on lesser degree mandatory. — Where there was no eyewitness to killing and death resulted from gunshot wound, and there was no evidence showing the murder was by poison or torture or lying in wait, or that it was perpetrated in committing, or attempting to commit a felony, failure to instruct jury other than on first degree murder was reversible error. Territory v. Padilla, 1896-NMSC-013, 8 N.M. 510, 46 P. 346; Aguilar v. Territory, 1896-NMSC-012, 8 N.M. 496, 46 P. 342.

Adequate felony murder instruction described. — A jury instruction which requires the state to prove, beyond a reasonable doubt, a causal relationship between the felony committed and the death of the victim is adequate. State v. Perrin, 1979-NMSC-050, 93 N.M. 73, 596 P.2d 516.

Failure to instruct on the defining element of felony murder is fundamental error. - In a felony murder prosecution where the evidence will support a conviction for either second-degree murder or voluntary manslaughter, it is fundamental error for the felony murder essential elements jury instruction to omit the defining requirement that the accused did not act in the heat of passion as a result of the legally adequate provocation that would reduce murder to manslaughter. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury was instructed to consider felony murder based on the felony of shooting at the Expedition; the felony murder essential elements instruction omitted any reference to the concept of legally sufficient provocation that distinguished heat of passion voluntary manslaughter from cold blooded second degree murder; and there was ample evidence that the victim's provocative conduct against defendant and defendant's family occurred before defendant shot into the Expedition, the failure to include the distinction between second degree murder and voluntary manslaughter was fundamental error. State v. Montoya, 2013-NMSC-020, 306 P.3d 426.

Instruction on intent when intent clear. — Failure to include the essential element of intent in a jury instruction for felony murder did not constitute fundamental error since the evidence was such that there could be no dispute that the defendant possessed the requisite intent. State v. Livernois, 1997-NMSC-019, 123 N.M. 128, 934 P.2d 1057.

Evidence of premeditation. — Evidence that defendant had talked on numerous occasions of committing violent acts, including murder, and had made such statements on the night of the murder, was sufficient to establish premeditation. State v. Begay, 1998-NMSC-029, 125 N.M. 541, 964 P.2d 102.

Waiver of instructions on lesser included offenses. — Consistent with the constitutional guarantees of a fair trial, the defendant in a first degree murder prosecution may take his chances with the jury by waiving instructions on lesser included offenses, even against the express advice of counsel, and cannot be heard to complain on appeal if he has gambled and lost. State v. Boeglin, 1987-NMSC-002, 105 N.M. 247, 731 P.2d 943.

Missing element cured by separate instruction. — Trial court did not commit fundamental error by omitting the element of unlawfulness from the elements instruction on deliberate-intent first degree murder when the jury also received a separate proper instruction on self-defense. State v. Cunningham, 2000-NMSC-009, 128 N.M. 711, 998 P.2d 176.

First and second degree properly submitted. — Where there was evidence presented which tended to indicate that sufficient time elapsed during which the defendant could have weighed his actions and considered their consequences and that the shooting was not in the heat of argument, instructions on first and second degree murder were proper. State v. Aragon, 1973-NMCA-102, 85 N.M. 401, 512 P.2d 974.

Absent request for instruction, no fundamental error. — Where the defendant does not request that an instruction be given and, consequently, it is not given, the trial court does not commit a fundamental error. State v. Stephens, 1979-NMSC-076, 93 N.M. 458, 601 P.2d 428, overruled in part on other grounds by State v. Contreras, 1995-NMSC-056, 120 N.M. 486, 903 P.2d 228.

Submission of second degree generally required, in absence of exceptions. — Except in a case where the very means employed in committing a homicide, as by torture, poison or lying in wait supply proof of the deliberation, the intensified malice, necessary to raise the grade of the offense to first degree as a matter of law, or unless it be one committed in the perpetration of, or attempt to perpetrate, a felony where by legislative fiat the circumstances under which the killing occurred render conclusive the presence of such deliberation, it is always necessary to submit second degree and thus permit the jury to say whether it is the one or the other - first or second degree. State v. Ortega, 1966-NMSC-185, 77 N.M. 7, 419 P.2d 219.

It was necessary to submit second as well as first degree murder to jury to permit them to determine degree of murder except when means employed in perpetrating crime supplied proof of deliberation or when homicide was committed in perpetrating or attempting another felony. State v. Kappel, 1949-NMSC-024, 53 N.M. 181, 204 P.2d 443.

Second degree instruction on intent. — In a prosecution for felony murder, giving of an unmodified form of UJI 14-210 on second degree murder, which allows for a verdict of guilt provided that, among other things, the state has proven beyond a reasonable doubt that "[t]he defendant intended the killing to occur or knew that he was helping to create a strong probability of death or great bodily harm" was sufficient without giving a general criminal intent instruction, which requires a higher level of criminal intent. State v. Nieto, 2000-NMSC-031, 129 N.M. 688, 12 P.3d 442.

Second degree instruction with sudden impulse theory. — Where confession of accused had been admitted and in it he stated that he had killed his wife on sudden impulse, it was error to refuse to instruct on second degree murder. State v. Wickman, 1935-NMSC-035, 39 N.M. 198, 43 P.2d 933.

Second degree instruction with self-defense theory. — Where prosecution attempted to prove first degree murder, perpetrated by lying in wait, and defendant pleaded self-defense, the court properly instructed jury on murder in the second degree. State v. Smith, 1921-NMSC-014, 26 N.M. 482, 194 P. 869.

Failure to instruct on second degree. — When the defendant was convicted of felony murder and related crimes, the refusal to give an instruction on second degree murder was correct because the state proved a nexus between two felonies and the murder that excluded the possibility the murder was not committed in the commission of a felony. State v. McGruder, 1997-NMSC-023, 123 N.M. 302, 940 P.2d 150.

Self-defense instruction refused where defendant entered store with weapon, prepared to rob. — Where the defendant entered a store with a weapon, prepared to commit armed robbery if the circumstances permitted it, such facts can only reasonably point to the commission of a felony in a situation which is, of itself, "inherently or foreseeably dangerous to human life," and a self-defense instruction is properly refused. State v. Chavez, 1983-NMSC-037, 99 N.M. 609, 661 P.2d 887.

Instruction on defense of another. — Where defendant and the occupants of a house exchanged multiple gun shots; the shots defendant fired at the house killed one victim; defendant was tried for first degree murder with the predicate felony of shooting at a dwelling; defendant requested a jury instruction on defense of another on the grounds that shots from the house were fired in the direction of defendant's vehicle where two of defendant's friends were waiting; defendant's friends testified that they were not aware of any bullets reaching the vicinity of the car; defendant testified that defendant shot back at the house because people in the house were shooting at defendant; and there was no evidence that defendant shot to protect anyone other than defendant, the district court did not err in refusing to instruct on defense of another. State v. Torrez, 2013-NMSC-034.

Question as to manner of killing. — Where evidence presented jury question as to manner in which killing occurred, instruction on second degree murder was properly given although state contended that crime constituted first degree murder. State v. Parks, 1919-NMSC-041, 25 N.M. 395, 183 P. 433.

It was not error to submit issue of second degree murder, where the accused was convicted of a degree of crime properly within the evidence. State v. Armstrong, 1956-NMSC-053, 61 N.M. 258, 298 P.2d 941.

Failure to instruct on lesser included offense of vehicular homicide. — District court committed reversible error in refusing to instruct the jury on the lesser included offense of vehicular homicide, where the evidence of the defendant's use of marijuana the night before and the morning of the killing could have supported a conviction of vehicular homicide while under the influence of drugs. State v. Omar-Muhammad, 1987-NMSC-043, 105 N.M. 788, 737 P.2d 1165.

Aggravated battery lesser included offense of attempted murder. — In a prosecution for attempted murder, the trial court properly instructed the jury on aggravated battery as a lesser included offense at the state's request, because the elements of the lesser crime were a subset of the elements of the charged crime and, further, the defendant could not have committed the greater offense in the manner charged in the indictment without also committing the lesser offense. State v. Meadors, 1995-NMSC-073, 121 N.M. 38, 908 P.2d 731.

Convictions of attempted murder and aggravated battery violated double jeopardy. — Where defendant was convicted of attempted murder and aggravated battery with a deadly weapon; defendant's conduct was unitary; the indictment for attempted murder required the state to prove that defendant attempted to commit murder and "began to do an act which constituted a substantial part of murder" but failed to commit the offense; the indictment for aggravated battery required the state to prove that defendant touched or applied force to the victims with a deadly weapon intending to injure the victims; the state's theory of the case to support both charges was that defendant beat, stabbed, and slashed the victims; and the state offered the same testimony to prove both charges, the aggravated battery elements were subsumed within the attempted murder elements and defendant's convictions violated the prohibition against double jeopardy. State v. Swick, 2012-NMSC-018, 279 P.3d 747, rev'g 2010-NMCA-098, 148 N.M. 895, 242 P.3d 462, overruling State v. Armendariz, 2006-NMSC-036, 140 N.M. 182, 141 P.3d 526.

Failure to instruct on aggravated battery. — The jury found the defendant guilty of attempted first degree murder, in that he had a deliberate intention to take the life of the victim, not that he simply had knowledge that his acts created a strong probability of great bodily harm. The jury having thus failed to find the lesser included offense of attempted murder in the second degree, the failure to instruct on aggravated battery was harmless. State v. Escamilla, 1988-NMSC-066, 107 N.M. 510, 760 P.2d 1276.

When court has no duty to instruct on voluntary manslaughter. — Where neither prosecution nor defense in a murder trial requested an instruction on voluntary manslaughter, and both defendant and counsel stated that they did not desire such an instruction despite the court's explanation that there was sufficient evidence to warrant it, there was no duty for the trial court to instruct on voluntary manslaughter. State v. Najar, 1980-NMCA-033, 94 N.M. 193, 608 P.2d 169, cert. denied, 94 N.M. 628, 614 P.2d 545.

No instruction on provocation. — Defendant was not entitled to instructions specifically relating to his theory that a police officer's search of his house was illegal and constituted provocation so as to reduce murder to manslaughter. State v. Chamberlain, 1991-NMSC-094, 112 N.M. 723, 819 P.2d 673.

Instruction on manslaughter improper. — It was error for the court to submit to the jury an issue of whether defendant was guilty of voluntary manslaughter when the facts established 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 was required. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594.

Where evidence in prosecution for murder made it clear that defendant did not kill deceased "upon a sudden quarrel, or in the heat of passion," or "in the commission of an unlawful act not amounting to a felony," or "of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection," so as to make the act "manslaughter," instruction on manslaughter was not warranted. Territory v. Archuleta, 1911-NMSC-028, 16 N.M. 219, 114 P. 285.

Instruction on voluntary manslaughter improper. — Where defendant, who was walking along a ditch with friends, encountered the victim; defendant's friend began punching and kicking the victim; defendant provided the friend with a knife that the friend used to fatally stab the victim; defendant was convicted of second degree murder; defendant argued that the district court should have instructed the jury on voluntary manslaughter because defendant was provoked by the instigation of the fight by defendant's friends, defendant perceived the victim to be a member of a rival gang that was responsible for a stabbing attack on defendant's friend that occurred within the preceding weeks, and the victim's reaction to the attack provoked defendant's response, defendant failed to establish sufficient provocation to support a voluntary manslaughter instruction. State v. Jim, 2014-NMCA-089, cert. denied, 2014-NMCERT-006.

Various theories submitted. — Where the evidence on provocation sufficient to reduce the killing from murder to voluntary manslaughter and the evidence of self-defense was conflicting, such questions were factual ones to be resolved by the jury, and the trial court properly submitted the issues of second degree murder, voluntary manslaughter and self-defense to the jury. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Overinclusive instruction intolerably confusing. — Defendant convicted of first degree murder for killing the victim by striking her with a cinder block after allegedly raping her was entitled to reversal of conviction, even in absence of objection by defendant at trial, where evidence supported judge's instruction on willful, deliberate or premeditated killing, but did not support instructions on theories of felony murder; murder by act dangerous to others, indicating depraved mind; or murder from deliberate and premeditated design unlawfully and maliciously to effect death of any human being (transferred intent). Such error was fundamental, since an intolerable amount of confusion was introduced into the case, and defendant could have been convicted without proof of all necessary elements. State v. DeSantos, 1976-NMSC-034, 89 N.M. 458, 553 P.2d 1265.

Overinclusiveness reversible error. — Where defendant was indicted only under Subsection A(3) of this section (for felony murder), it was reversible error to include the willful, deliberate language of Subsection A(1) in the jury instructions. State v. Trivitt, 1976-NMSC-004, 89 N.M. 162, 548 P.2d 442.

Confusing instruction on self-defense, critical issue in case, required reversal. State v. Garcia, 1971-NMCA-121, 83 N.M. 51, 487 P.2d 1356.

Confusing instruction raised on appeal. — Giving of a confusing instruction on second degree murder which first included, then excluded, premeditation, was jurisdictional error, and could be first raised on appeal. State v. Buhr, 1971-NMCA-017, 82 N.M. 371, 482 P.2d 74.

Objections to form must be preserved. — Where instructions on second degree murder included the elements of the offense, without uncertainty, and were not misleading, they contained neither jurisdictional defect nor fundamental error; asserted inadequacy as to their form, not called to the attention of the trial court, was not preserved for review. State v. Moraga, 1971-NMCA-103, 82 N.M. 750, 487 P.2d 178.

Error in instructions harmless. — Although the jury, not the judge or the district attorney, was to determine the sentence imposed for first degree murder, so that the trial court was in error in failing to submit to the jury a form of verdict calling for the death sentence, the error was harmless and could not be prejudicial to the accused. State v. Sanchez, 1954-NMSC-010, 58 N.M. 77, 265 P.2d 684.

Failure to instruct on lesser charges upheld. — In the murder trial of a prisoner for killing a guard in which the death penalty was sought but not imposed, there was no fundamental miscarriage of justice because of the failure to instruct on second degree murder and voluntary manslaughter with respect to the officer's death, even though as an initial matter the evidence might have been sufficient to support such instructions, where the evidence supporting these lesser included offense instructions was not "unequivocally strong." Trujillo v. Sullivan, 815 F.2d 597 (10th Cir.), cert. denied, 484 U.S. 929, 108 S. Ct. 296, 98 L. Ed. 2d 256 (1987) (decided under prior law).

Refusal of cumulative instructions. — Where the trial court instructed the jury as to the statutory definition of murder in the first degree; in another instruction listed the essential elements thereof and instructed the jury that each of these elements must be proven to the jury's satisfaction beyond a reasonable doubt; defined each of the essential terms, such as willfully, express malice, deliberation, etc.; and gave an instruction concerning the effect on defendant's state of mind from intoxication, it was not error in refusing defendant's requested instructions which were merely cumulative of the court's instruction. State v. Rushing, 1973-NMSC-092, 85 N.M. 540, 514 P.2d 297.

Trial court was not in error when it refused to give defendant's requested instruction on exculpatory statements contained in his confession, since the court adequately instructed on self-defense, and since defendant's own testimony corresponded to the exculpatory matter contained in the confession. State v. Casaus, 1963-NMSC-194, 73 N.M. 152, 386 P.2d 246.

Use of jury instructions. — New Mexico U.J.I. Crim. 2.00 (now see UJI 14-201) does not change the necessary elements to be proven for a conviction of first degree murder, and it was not error to use it in advance of the effective date. State v. Noble, 1977-NMSC-031, 90 N.M. 360, 563 P.2d 1153.

Answering jury's questions. — Since, under 40-24-10, 1953 Comp., the jury had sole responsibility for fixing the penalty for murder in the first degree, it was not error for the trial court to answer the jury's inquiry for information relating to the possibility of parole or pardon or a verdict of life imprisonment by quoting applicable constitutional and statutory provisions. State v. Nelson, 1959-NMSC-023, 65 N.M. 403, 338 P.2d 301, cert. denied, 361 U.S. 877, 80 S. Ct. 142, 4 L. Ed. 2d 115 (1959) (decided under prior law).

Review. — On appeal from conviction for second- degree murder, the court must review the evidence as to cause of death in the light most favorable to the state. State v. Ewing, 1968-NMCA-071, 79 N.M. 489, 444 P.2d 1000.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

For comment, "State v. Jackson: A Solution to the Felony-Murder Rule Dilemma," see 9 N.M.L. Rev. 433 (1979).

For article, "Constitutionality of the New Mexico Capital Punishment Statute," see 11 N.M.L. Rev. 269 (1981).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).

For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).

For article, "The Guilty But Mentally Ill Verdict and Plea in New Mexico," see 13 N.M.L. Rev. 99 (1983).

For note, "Criminal Law - The Use of Transferred Intent in Attempted Murder, a Specific Intent Crime: State v. Gillette," see 17 N.M.L. Rev. 189 (1987).

For comment, "An Equal Protection Challenge to First Degree Depraved Mind Murder Under the New Mexico Constitution", see 19 N.M.L. Rev. 511 (1989).

For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).

For note, "Whether the Elements of Deliberation and Premeditation Adequately Distinguish First Degree Murder from Second Degree Murder: State v. Garcia," see 24 N.M.L. Rev. 437 (1994).

For note, "New Mexico Applies the Strict Elements Test to the Collateral Felony Doctrine - State v. Campos," see 28 N.M.L. Rev. 535 (1998).

For note, "The Anomaly of a Murder: Not All First-Degree Murder Mens Rea Standards Are Equal - State v. Brown," see 28 N.M.L. Rev. 553 (1998).

For note and comment, "Death in the Desert: A New Look at the Involuntary Intoxication Defense in New Mexico," see 34 N.M.L. Rev. 243 (2002).

For note and comment, "Adding Charges on Retrial: Double Jeopardy, Interstitialism and State v. Lynch," see 34 N.M.L. Rev. 539 (2004).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Homicide, §§ 41 to 53.

Malice: inference of malice or intent where killing is by blow without weapon, 22 A.L.R.2d 854.

Hunting accident: criminal responsibility for injury or death resulting from, 23 A.L.R.2d 1401.

Threats: causing one, by threats or fright, to leap or fall to his death, 25 A.L.R.2d 1186.

Fright or shock, homicide by, 47 A.L.R.2d 1072.

Premeditation: presumption of deliberation or premeditation from the fact of killing, 86 A.L.R.2d 656.

Criminal liability for excessive or improper punishment inflicted on child by parent, teacher, or one in loco parentis, 89 A.L.R.2d 396.

"Lying in wait," what constitutes, 89 A.L.R.2d 1140.

Medical or surgical attention, failure to provide, 100 A.L.R.2d 483.

Homicide: liability where death immediately results from treatment or mistreatment of injury inflicted by defendant, 100 A.L.R.2d 769.

Insulting words as provocation of homicide or as reducing the degree thereof, 2 A.L.R.3d 1292.

Intoxication: modern status of the rules as to voluntary intoxication as defense to criminal charge, 8 A.L.R.3d 1236.

Automobile: homicide by automobile as murder, 21 A.L.R.3d 116.

Mental or emotional condition as diminishing responsibility for crime, 22 A.L.R.3d 1228.

Intoxicants: criminal liability for death resulting from unlawfully furnishing intoxicating liquor or drugs to another, 32 A.L.R.3d 589.

Arrest: private person's authority, in making arrest for felony, to shoot or kill alleged felon, 32 A.L.R.3d 1078.

Killing by set gun or similar device on defendant's own property, 47 A.L.R.3d 646.

Unintentional killing or injury to third person during attempted self-defense, 55 A.L.R.3d 620.

Felony: homicide in commission of felony where the killing was the act of one not a participant in the felony, 56 A.L.R.3d 239.

Homicide as affected by time elapsing between wound and death, 60 A.L.R.3d 1316.

Withholding food, clothing or shelter, 61 A.L.R.3d 1207.

Intoxication: when deemed involuntary so as to constitute a defense to criminal charge, 73 A.L.R.3d 195.

Torture: what constitutes murder by torture, 83 A.L.R.3d 1222.

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.

Pocket or clasp knife as deadly or dangerous weapon for purposes of statute aggravating offenses such as assault, robbery, or homicide, 100 A.L.R.3d 287.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Judicial abrogation of felony-murder doctrine, 13 A.L.R.4th 1226.

Admissibility of expert testimony as to whether accused had specific intent necessary for conviction, 16 A.L.R.4th 666.

Modern status of the rules requiring malice "aforethought," "deliberation" or "premeditation," as elements of murder in the first degree, 18 A.L.R.4th 961.

Admissibility of expert or opinion testimony on battered wife or battered woman syndrome, 18 A.L.R.4th 1153.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.

Validity and construction of statute defining homicide by conduct manifesting "depraved indifference," 25 A.L.R.4th 311.

Homicide: sufficiency of evidence of mother's neglect of infant born alive, in minutes or hours immediately following unattended birth, to establish culpable homicide, 40 A.L.R.4th 724.

Homicide by causing victim's brain-dead condition, 42 A.L.R.4th 742.

Corporation's criminal liability for homicide, 45 A.L.R.4th 1021.

Homicide: physician's withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

Admissibility of expert opinion stating whether a particular knife was, or could have been, the weapon used in a crime, 83 A.L.R.4th 660.

Application of felony-murder doctrine where person killed was co-felon, 89 A.L.R.4th 683.

Validity and construction of "extreme indifference" murder statute, 7 A.L.R.5th 758.

Admissibility, in homicide prosecution, of evidence as to tests made to ascertain distance from gun to victim when gun was fired, 11 A.L.R.5th 497.

Admissibility of evidence in homicide case that victim was threatened by one other than defendant, 11 A.L.R.5th 831.

Ineffective assistance of counsel: battered spouse syndrome as defense to homicide or other criminal offense, 11 A.L.R.5th 871.

Transmission or risk of transmission of human immunodeficiency virus (HIV) or acquired immunodeficiency syndrome (AIDS) as basis for prosecution or sentencing in criminal or military discipline case, 13 A.L.R.5th 628.

Homicide: liability where death immediately results from reatment or mistreatment of injury inflicted by defendant, 50 A.L.R.5th 467.

Admissibility of threats to defendant made by third parties to support claim of self-defense in criminal prosecution for assault or homicide, 55 A.L.R.5th 449.

Adequacy of defense counsel's representation of criminal client - conduct occurring at time of trial regarding issues of diminished capacity, intoxication, and unconsciousness, 78 A.L.R.5th 197.

Adequacy of defense counsel's representation of criminal client - pretrial conduct or conduct at unspecified time regarding issues of diminished capacity, intoxication, and unconsciousness, 79 A.L.R.5th 419.

What constitutes "puts in jeopardy" within enhanced penalty provision of federal bank robbery act, 32 A.L.R. Fed. 279.

40 C.J.S. Homicide §§ 29 to 68.

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