2020 New Mexico Statutes
Chapter 30 - Criminal Offenses
Article 2 - Homicide
Section 30-2-7 - Justifiable homicide by citizen.

Universal Citation: NM Stat § 30-2-7 (2020)

Homicide is justifiable when committed by any person in any of the following cases:

A. when committed in the necessary defense of his life, his family or his property, or in necessarily defending against any unlawful action directed against himself, his wife or family;

B. when committed in the lawful defense of himself or of another and when there is a reasonable ground to believe a design exists to commit a felony or to do some great personal injury against such person or another, and there is imminent danger that the design will be accomplished; or

C. when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace.

History: 1953 Comp., § 40A-2-8, enacted by Laws 1963, ch. 303, § 2-8.


Imperfect self-defense. — Imperfect self-defense, which occurs when a person uses excessive force while otherwise lawfully engaging in self-defense, is not a true affirmative defense for which a defendant is entitled to an instruction. Any issues raised by a defendant's claim of imperfect self-defense are properly addressed when the jury is instructed on voluntary manslaughter. State v. Herrera, 2014-NMCA-007, cert. denied, 2013-NMCERT-012.

Recognition of common law. — This section and Section 30-2-6 NMSA 1978 are in reality a legislative recognition of the common law which empowered officers to perform their duty of apprehending and bringing felons to the bar of justice. Alaniz v. Funk, 1961-NMSC-140, 69 N.M. 164, 364 P.2d 1033.

Three elements necessary before self-defense instruction can be given are: (1) an appearance of immediate danger of death or great bodily harm to the defendant; (2) the defendant was in fact put in such fear; and (3) a reasonable person would have reacted in a similar manner. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d 1041.

Multiple attacker. — While a person may act in self-defense against multiple attackers acting in concert, this principle applies only to the extent that each accomplice poses an immediate danger of death or great bodily harm, thereby necessitating an act of self-defense. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477.

Retaliation. — Self-defense is defined by the objectively reasonable necessity of the action and does not extend to a defendant's act of retaliation for another's involvement in a crime against the defendant. State v. Coffin, 1999-NMSC-038, 128 N.M. 192, 991 P.2d 477.

Provocation by defendant. — A defendant who provokes an encounter, as a result of which the defendant finds it necessary to use deadly force in defense, cannot claim defendant was acting in self-defense. State v. Lucero, 1998-NMSC-044, 126 N.M. 552, 972 P.2d 1143; State v. Chavez, 1983-NMSC-037, 99 N.M. 609, 661 P.2d 887.

Excessive force. — The use of excessive force in self-defense is not reasonable and does not entitle one to a self-defense instruction. State v. Sutphin, 2007 NMSC-045, 142 N.M. 191, 164 P.3d 72.

To warrant self-defense instruction evidence must raise reasonable doubt in the minds of the jury as to whether or not a defendant accused of homicide did act in self-defense. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d 1041.

Subjective apprehension of harm necessary. — It was not sufficient to justify the taking of human life that a person had reason to apprehend death or great bodily harm to himself unless he killed his assailant; he must entertain such belief and must be acting upon it. State v. Parks, 1919-NMSC-041, 25 N.M. 395, 183 P. 433.

Threat of great personal injury. — Laws 1853-1854, p. 86, (former 40-24-13, 1953 Comp.), defining homicide as justifiable when committed in lawful self-defense on reasonable ground to apprehend some great personal injury meant something more than apprehension, however imminent, of a mere battery, not amounting to a felony, and required an apparent design either to take the life or inflict great personal injury on the person assailed, amounting to a felony, if carried out, and imminent danger of such design being accomplished. Territory v. Baker, 1887-NMSC-021, 4 N.M. (Gild.) 236, 13 P. 30.

Defense of chastity. — Woman accused of voluntary manslaughter was entitled, on written request, to special instruction on her claim of defense of her chastity. State v. Martinez, 1924-NMSC-075, 30 N.M. 178, 230 P. 379.

Defense of habitation authorized. — The defense of habitation alone, without a statute making it a felony to unlawfully and maliciously injure a house, gave householder the right to meet force with force, and "an attack upon a dwelling, and especially in the night, the law regards as equivalent to an assault on a man's person, for a man's house is his castle." State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

While no law countenances wanton slaying, the protection and security of life being the most vital interest of society, the law of habitation and the resistance to the commission of a felony thereon gave householder the right to kill the aggressor, if such killing was necessary or apparently necessary to prevent or repel the felonious aggression. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Householder not obliged to retreat. — When one's home was attacked in the middle of a dark night by persons riding in an automobile, the householder, being unable to determine what weapons the assailants had, was not obliged to retreat but might pursue his adversaries until out of danger. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Substantial injury to dwelling not necessary. — Instruction that injury to a dwelling, to be felonious so as to justify killing, must be of a substantial character constituted a prejudicial error. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

Property other than dwelling. — Under former law, trespass upon real estate not the dwelling house of accused did not of itself justify or excuse killing of trespasser. State v. Martinez, 1929-NMSC-040, 34 N.M. 112, 278 P. 210.

Apprehension of suspected felon. — Deadly force in the apprehension of suspected felons is justifiable only when the citizen has probable cause to believe he or she is threatened with serious bodily harm or the use of deadly force. State v. Johnson, 1998-NMCA-019, 124 N.M. 647, 954 P.2d 79.

Requisites of instructions. — It is not imperative that the charge to the jury use the precise terms of the statute; instructions are sufficient which substantially follow the language of the statute or use equivalent language, adequately covering every phase of the case raised by the evidence on which the defendant is entitled to have the jury instructed. State v. Maestas, 1957-NMSC-057, 63 N.M. 67, 313 P.2d 337.

Jury to consider threat of danger from defendant's standpoint. — Where defense of habitation is invoked in homicide case, the danger or apparent danger must be considered from the standpoint of accused, and not according to the actual facts as they developed at the trial. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

The jury was adequately instructed where it was charged that if it reasonably appeared to the defendant that his brother was in imminent danger of death or great bodily injury, then the defendant had a right to use such force as would appear reasonably necessary to repel the attack, and the jury was further instructed to view the matter from defendant's viewpoint, even though it afterward appeared that no injury was intended and no danger existed. State v. Maestas, 1957-NMSC-057, 63 N.M. 67, 313 P.2d 337.

Instruction on right to act in view of wife's health. — Refusal of instruction relating to defendant's right to act in view of his wife's condition and effect which repeated assaults upon the habitation had had upon her health was reversible error. State v. Couch, 1946-NMSC-047, 52 N.M. 127, 193 P.2d 405.

When self-defense instruction mandatory. — Where self-defense is involved in a criminal case and there is any evidence, although slight, to establish the same, it is not only proper for the court, but its duty as well, to instruct the jury fully and clearly on all phases of the law on the issues that are warranted by the evidence, even though such defense is supported only by the defendant's own testimony. State v. Heisler, 1954-NMSC-032, 58 N.M. 446, 272 P.2d 660.

Evidence held to support theory of self-defense. — The recovery of a spent bullet, after trial, from under the hood of the defendant's car, and evidence regarding its angle of entry and rifling characteristics consistent with its having been fired by a gun of the type and caliber known by police to be owned by the victim, was not merely cumulative evidence, but was a material piece of demonstrative evidence strengthening the defendant's theory of self-defense. State v. Melendez, 1981-NMCA-027, 97 N.M. 740, 643 P.2d 609, rev'd on other grounds, 1982-NMSC-039, 97 N.M. 738, 643 P.2d 607.

When inappropriate. — If the evidence in the case is insufficient to raise a reasonable doubt as to whether a defendant accused of a homicide did act in self-defense, any instruction on that issue is properly refused. State v. Heisler, 1954-NMSC-032, 58 N.M. 446, 272 P.2d 660.

Instructions properly refused. — In prosecution for assault with intent to kill, refusal to instruct that person has a right to defend his property from trespass or larceny, and that jury should acquit defendant if it found he shot at prosecuting witness to stop him from removing defendant's property and that such action was necessary to prevent, it was not error where evidence did not show prosecuting witness was on land leased by defendant at time of assault and in light of instructions given. State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122.

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

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Homicide §§ 110 to 126, 138.

Duty to retreat as affected by illegal character of premises on which homicide occurs, 2 A.L.R. 518.

Right of self-defense as affected by defendant's violation of law only casually related to the encounter, 10 A.L.R. 861.

Killing of third person by shot or blow aimed at another in self-defense, 18 A.L.R. 917.

Duty to retreat when not on one's premises, 18 A.L.R. 1279.

Homicide in defense of habitation or property, 25 A.L.R. 508, 32 A.L.R. 1541, 34 A.L.R. 1488.

Evidence of improper conduct by deceased toward defendant's wife as admissible in support of plea of self-defense, 44 A.L.R. 860.

Retreat: extent of premises which may be defended without retreat under right of self-defense, 52 A.L.R.2d 1458.

Instructions: duty of trial court to instruct on self-defense, in absence of request by accused, 56 A.L.R.2d 1170.

Admissibility of evidence of uncommunicated threats on issue of self-defense in prosecution for homicide, 98 A.L.R.2d 6.

Relationship with assailant's wife as provocation depriving defendant of right of self-defense, 9 A.L.R.3d 933.

Retreat: duty to retreat where assailant and assailed share the same living quarters, 26 A.L.R.3d 1296.

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

Duty to retreat as condition of self-defense when one is attacked at his office, or place of business or employment, 41 A.L.R.3d 584.

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

Criminal liability where act of killing is done by one resisting felony or other unlawful act committed by defendant, 56 A.L.R.3d 239.

Duty to retreat where assailant is social guest on premises, 100 A.L.R.3d 532.

Fact that gun was unloaded as affecting criminal responsibility, 68 A.L.R.4th 507.

Construction and application of statutes justifying the use of force to prevent the use of force against another, 71 A.L.R.4th 940.

Standard for determination of reasonableness of criminal defendant's belief, for purposes of self-defense claim, that physical force is necessary - modern cases, 73 A.L.R.4th 993.

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.

Homicide: duty to retreat where assailant and assailed share the same living quarters, 67 A.L.R.5th 637.

40 C.J.S. Homicide §§ 108 to 138.

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