*1 360 plaintiff perceive collision. The failed to Company Hartford Fire Insurance
(1966); Horne, 440, (1959); until too late avoid the collision. Since v. Johnston, 380, plaintiff required perceive the is 492 law to v. Archuleta visible, denied, proximate what is the cause of the cert. (Ct.App.), 997 83 P.2d nothing plaintiff’s accident was than other Where several 492 see, and not accident, any negligence failure to an the may have caused factors Department. Highway proves unless cannot recover he plaintiff injuries were sustained a cause his that above, Following our we discussion are of responsible. is which the defendant for opinion negligence the that there no v. 38 A.D.2d 326 Stuart-Bullock part the New Highway the Mexico State (S.Ct.1971). Sateg Bouldin v. 909 N.Y.S.2d Department, proximate the sole 329, 332-333, 372 na, accident negligence cause of the was the use: applicable out the test sets Dyke. Van As a the driver Knox result of Anderman, Thompson v. we do disposition this not need reach the that, stated “The P.2d we presented. the issues rest of injury an is cause proximate plain- judgment The favor of all three se- and continuous natural which is tiffs is reversed and the cause remanded new, by any indepen- unbroken quence, County District Court of Fe Santa injury, cause, with- produces dent grant Highway De- with directions to injury would have oc- out which partment’s motion for a directed verdict. curred.” IT SO ORDERED. IS fact accident cause If the traveling p. m. h. plaintiff was PAYNE, JJ., SOSA, con- EASLEY and hill spot” at the crest the “blind cur. truck, seeing the liabil- him from prohibited However, established. may have been ity Dyke’s it was Van record shows keep lookout which was proper
failure The proximate cause of accident. the truck showed that was visible evidence plaintiff an over feet and Mexico, of New STATE opportunity to take meas- adequate evasive Plaintiff-Appellee, the negligence When of the driver ures. v. injury, respon- the state produces for unrelated road conditions. Ikene sible NOBLE, Defendant-Appellant. George Maruo, (1973); 54 Haw. v. No. 10878. Commission, Highway v. State Martin Court of New Mexico. Supreme (1974); P.2d Litts Kan. County, 9 Wash.App.
Pierce April 1977. Rehearing Granted Feb. 1977. Negligence and causal connection questions jury, for generally of fact
are where equally it is well established that
but undisputed and reasonable evidence differ, cannot is one
minds Montoya judge. to be resolved
law Williamson, 566, 446 supra. Ar Sategna, Bouldin v. Cf. Johnston, supra.
chuleta plaintiff truck for was visible before the adequate time and distance *2 The defendant man in local bar.
er up going he was there a friend told “ * * * number on both them.” do a neighbors were awakened by screams Some vic- coming from the victim’s house. The *3 sister, door, who lived next called tim’s seven-year-old of police. girl, daughter A victim, and was awakened the defendant noise, got up, living and went into the room, gurgling blood out her mother saw standing nearby knife her father with a and arrived, police they hand. When the in his inside the and the defendant house found fatally the floor wounded. victim on cut, been and she also throat had Her in her throat several stab wounds received head wounds. The defendant several and with murder. charged and was arrested six on points The raises defendant First, that appeal. claims defendant his penalty is New Mexico’s death unconstitu and the case must be remanded tional that resentencing. agree. penalty The for life imposed imprison in this case is Rondeau, State v. ment.
Second,
claims fundamental
defendant
occurred because there was no
error
Defender,
Hartke, Chief Public
Jan A.
competency
valid
and no
determination
Klein,
Defender, Reginald J.
Appellate
Don
preliminary
Prior
waiver thereof.
Fe,
Storment,
Defender,
Appellate
Santa
court,
hearing magistrate
de-
counsel for
defendant-appellant.
for
Court,
filed a motion in District
fendant
Gen.,
Anaya, Atty.
Paquin M. Ter-
Toney
his
an examination to determine
requesting
Robles,
razas,
Montoya,
Don D.
J.
Robert E.
by Rule
competency
provided
as
mental
Gen.,
Francke,
Attys.
Asst.
Michael
Santa
41-23-35(c),
35(c),
35(c)
N.M.R.Crim.P.
[§
Fe,
plaintiff-appellee.
rehearing, for
(Supp.1975)]. The motion
N.M.S.A.1953
magistrate court
granted staying the
was
OPINION
ordering
psychiatric
a
ex-
proceedings and
MUSGROVE,
Judge, Sitting
District
examination,
Following
amination.
Designation.
examining
hearing was held at which the
rehearing
granted.
The motion for
testified that
the defendant under-
doctor
opinion is withdrawn
The former
and
pro-
gravity
stood the nature
following opinion is substituted.
him,
ceedings against
capable
assist-
was
competent
ing in his own defense and
first-degree
Defendant was convicted of
At
stand trial.
the conclusion
following
trial in
District
murder
hearing the
that the defendant
Court found
County,
of Grant
sentenced
Court
mentally competent
to stand trial and
appeals.
He
to death.
his
doubt as to
there was no reasonable
that
facts of
following
are
essential
competency
stand trial.
mental
May
early
hours of
the case.
35(b)
35(b),
41-23-
N.M.R.Crim.P.
his ex-wife to
Rule
the defendant followed
[§
provides
35(b),
(Supp.1975)]
having
after
seen her
anoth-
N.M.S.A.1953
her home
graphs
illustrate,
appears
ques-
when it
that there is a
were used to
clarify
competency
as to the mental
of a
testimony
de-
corroborate the
of witnesses con
trial, any
proceed-
cerning
crime,
to stand
further
fendant
the scene
wounds of
ings
suspended
until the court with-
identity
shall
the victim and
of the deceased.
issue,
i.
determines
e.
counsel concedes
out
Defendant’s
that the ad
a reasonable
as
photographs
whether there is
doubt
mission
into evidence is a
present
capacity
mental
discretionary
court,
defendant’s
matter with the trial
subject
trial.
stand
to a review for an abuse of
discretion. Defendant has the
burden
The Court decides the issue in one
such
He
abuse.
has failed to meet
to show
First, the
ways.
may
three
Court
decide
Victorian,
burden in
this case. State v.
there is no reasonable doubt that the
State v.
trial,
incompetent
stand
Upton, supra;
Holden,
State v.
proceedings
further
shall
which case
be con
*4
denied,
(Ct.App.),
P.2d 970
512
cert.
85 N.M.
concerning
question
the
of involun
ducted
Second,
tary hospitalization.
the Court
decide there is a reasonable doubt as
may
to
Fourth, defendant claims that
the
competency to stand trial.
In
defendant’s
allowing
trial court erred in
testimony of
event,
right
this
the defendant
has
to
Noble,
Dawn
the seven-year-old daughter
question
have the
submitted to and answer
victim,
of defendant and
because she was
by
jury
ed
the same
which is selected for
competent
not a
witness and because the
and tries the case on
spe
its merits. This
prejudicial effect of her testifying out
interrogatory
cial
should be submitted to weighed
probative
the
value of her testimo
the
at the time the case is submitted to
ny.
young girl's testimony,
Prior to the
Third,
it for its verdict.
the
may
Court
presence
extensive examination out of the
that there is
decide
no reasonable doubt as
by
of the
was made
the defense coun
competency
the defendant’s
tri
stand
sel,
prosecutor
the
judge concerning
and the
al, in which case
question
there is no
for a
girl’s understanding
obligation
of her
jury to decide.
Such
determination is
the truth.
tell
The record of that examina
subject
to review for
of
abuse
discre
clearly
demonstrates that she under
Lujan,
tion. State v.
87 N.M.
534 P.2d
duty
guide
stood her
to tell the truth. The
(1975);
Upton,
State
60 N.M.
determining
lines for
whether a child is
Chavez,
State v.
testify
competent to
were set out in State
(Ct.App.1975);
N.M.
Hoff
Manlove,
189, 192,
man v.
denied,
(Ct.App.),
cert.
(Ct.App.1968). In the present case there
in
testimony presented
no conflict
capacity
each instance the
of a child of
hearing concerning
at the
the defendant’s
years
tender
is to
investigated,
and the
competency to stand trial.
pur
No further
inquiries
trial court must determine from
question
by
suit of that
was made
defend
observation,
capacities
the child’s
recol-
We
ant.
conclude that the trial court did
communication,
lection and
and also the
abuse
its discretion.
appreciation
child’s
or consciousness of a
duty
speak
the truth.
It then lies
Third, defendant claims that
within the sound discretion of the trial
admitting photographs
trial court erred in
determine,
from the child’sintel-
court
body
of the
of the deceased. One of the
ligence
duty
and consciousnessof a
shows the victim as she was
photographs
truthful, whether or not the child is com-
police
in her
found
house. The other
petent
testify
as a witness.
photographs show the wounds inflicted on
guidelines.
the victim. Defendant contends that
the Here the trial court followed the
photographs
inflammatory, prejudi
opinion
were so
We are of the
properly
the court
they
young girl
and irrelevant
cial
should have
determined that
was a com-
disagree.
photo-
argues
been excluded. We
witness. Counsel
petent
Repl.
20-A-603,
jury with N.M.U.J.I.Crim.
[2nd
N.M.S.A.1953
R.Evid.
[§
than that an-
in
requires
(Supp.1975),
more
(Supp.1975)]
N.M.S.A.1953
Vol.
295]
disagree.
Coun-
in Manlove.
date because
nounced
effective
advance
was a
even if the child
sel claims
of the
changed the elements
instruction
witness,
prejudicial
effect
competent
trial
first-degree murder. The
crime
probative
any
testimony outweighed
her
N.M.U.J.I.
instructed the
court
value,
20-4-
cites N.M.R.Evid.
2.00, supra.
[§
argues
Crim.
re-
(Supp.1975)]. Our
N.M.S.A.1953
(1)
omits
element
the instruction
testimony
oppo-
us to the
leads
of the
view
unlawful, (2)
killing
contra-
must be
presented
The evidence
site conclusion.
express
set
definition of
malice
venes the
relevant,
testimony essential
40A-2-2,
legislature
by in
§
forth
noncumulative,
con-
part
intent
by allowing an inference of
S.A.1953
value. The trial court
probative
siderable
the facts and circumstances
to ex-
denying
the motion
was correct
case,
unreasonably vague
sets an
testimony.
clude the
important concept
very
for the
definition
Instruction 2.00
“deliberation.”
Fifth,
claims that the tri
necessary
proven
elements to be
change the
refusing
to direct a verdict
al court erred
first-degree murder.1
insanity.
conviction of
There
for a
by reason
guilty
of not
by law.
presented
means not authorized
factual
“Unlawful:
disputed
awas
Chenault,
147 P.
testimony concerning
sanity
State
*5
“with-
equivalent
Dr.
(1915).
of the crime.
“Unlawful” is
at the time
defendant
Hernandez,
defense,
justification.”
Territory
v.
by the
was
or
called
out excuse
suffering Gonzales,
31,
(1907).
was
N.M.
nal new instruction 1975. The
tember 2.00, murder, degree N.M.U.J.I.Crim.
first “malice afore- phrase not use express implied,” or but either thought, BUDAGHER, of Sandoval Sheriff Robert intention to “deliberate discusses instead County, H. on behalf of Trustee for and victim. We life of” the away the take Leonard, Leonard, Leon Winona E. *6 raised the confusion are confident beneficiaries, Company, Motor ard “implied” malice “express” and the terms Leonard, Leonard and Winona H. E. generally eliminated. See will now be Individually, Company, Motor Leonard Services, Law and of Public Institute Plaintiffs-Appellees, Commentary to N.M.U.J.I. Committee 2.00, Jury Uniform New Mexico Crim. Approved Criminal Commit- Instructions INC., ENTERPRISES, SUNNYLAND tee Commentaries County Kinscherff, E. John anticipated say what was there
We can Sandoval, Defendants-Appellants. reality. is now No. 11075. guidelines Defendant claims the Supreme Court of New Mexico. of deliber for consideration instruction 9, 1977. May disagree. vague. are too ate intention clear, unambiguous and language “legalese.” remarkably free trial error in the
Defendant claims use of N.M.U.J.I.Crim.
court’s [2nd (Supp.1975),
Repl. Vol. N.M.S.A.1953 date, its effective because before
326] specifically with the issue not deal proof sanity. This contention
burden Wilson, 85 without merit. See State