(dissenting).
The reason this case found its way to this Court for the third time is made clear by reason of its prior judicial history.
In State v. Lunn, 80 N.M. 383, 456 P.2d 216 (Ct.App.1969), this Court reversed solely on the ground that the trial court did not permit testimony of defendant’s witness as to a telephone conversation which was relevant to the credibility of the eyewitness to the shooting. The other eight points raised by defendant were not considered.
In State v. Lunn, 82 N.M. 526, 484 P.2d 368 (Ct.App.1971), this Court reversed solely on the ground that defendant was denied his right of confrontation when the trial court allowed the admission of out of court statements by the victim’s children. The other eight points raised by defendant were not considered.
In this case, six points are raised for review.
Experience on the bench has taught me that judges are, like all men, “liable to error; and * * * are, in most points, by passion or interest, under temptation to it.” [John Locke, Essay Concerning Human Understanding (1690), dedicatory epistle]. Through all of defendant’s prosecutions, certain errors have been perpetrated, and overlooked on appeal. These errors confront this Court in the instant appeal; and they should cause reversal of appellant’s conviction for a third time.
A. Manslaughter is an offense necessarily included in the charge of murder.
Defendant was charged with murder in the first degree in violation of § 40A-2-1(A), N.M.S.A.1953 (2nd Repl.Vol. 6, 1972). However, the jury was not instructed on murder in the first degree. Defendant was convicted of second degree murder.
The court instructed the jury:
You are not to concern yourself as to whether or not the acts of the defendant may constitute some other crime other than that for which he stands charged, keeping in mind that your determination is confined to the crime described, and you shall not convict the defendant of this crime solely because you feel that he may be guilty of some other crime. [Emphasis added]
The trial court denied several of defendant’s requested instructions on manslaughter. Two of them are:
If, however, you fail to find any one of the necessary elements to establish second degree murder, you may then consider whether or not the defendant is guilty of manslaughter.
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Manslaughter is the unlawful killing of a human being without malice. Manslaughter may be of two degrees:
A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.
B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to a felony; or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. [Section 40A-2-3]
The Supreme Court and this Court have held many times that manslaughter is included in the charge of murder. State v. Rose, 79 N.M. 277, 442 P.2d 589 (1968), cert. denied, 393 U.S. 1028, 89 S.Ct. 626, 21 L.Ed.2d 571 (1969); State v. Holden, 85 N.M. 397, 512 P.2d 970 (Ct.App.1973).
Rule 44(d) of the Rules of Criminal Procedure [§ 41-23-44(d), N.M.S.A.1953 (2d Repl.Vol. 6, 1973 Supp.)] provides:
(d) Conviction of lesser offense. If so instructed, the jury may find the defendant guilty of an offense necessarily included in the offense charged or of an attempt. to commit either the offense charged or an offense necessarily included therein. [Emphasis added]
What is meant by the words, “If so instructed” ? They have not been interpreted. Section 41-23^41 (a) provides:
The court must instruct the jury upon all questions of law necessary for guidance in returning a verdict.
“Under Rule 41(a), the necessity of guidance to the jury is a mandatory duty of the trial court to avoid guess and speculation in returning a verdict.” State v. Mata, 86 N.M. 548, 552, 525 P.2d 908, 912 (Ct.App.1974) (Sutin, J., dissenting).
“[Rule 41(a)] operates only when there is a complete failure to instruct upon a necessary issue.” State v. Cardona, 86 N.M. 373, 374, 524 P.2d 989, 990 (Ct.App.1974).
Accordingly, the clause “If so instructed”, in Rule 44(d), appears to require that when it is mandatory for the trial court to instruct on lesser offenses, and the trial court does so instruct, “the jury may find the defendant guilty of an offense necessarily included in the offense charged * * # »
Defendant was entitled to instructions on manslaughter if there was some evidence tending to establish the lesser included offense. State v. Andrada, 82 N.M. 543, 484 P.2d 763 (Ct.App.1971); State v. Wingate, N.M.App., 534 P.2d 776, decided April 9, 1975).
In Territory v. Lynch, 18 N.M. 15, 35, 133 P. 405, 409 (1913), the Court said:
It is needless to cite authority for the proposition that, where there is any evidence tending to show such a state of facts as may bring the homicide within the grade of manslaughter, defendant is entitled to an instruction on the law of manslaughter, and it is fatal error to refuse it.
This rule has become established law in New Mexico. State v. Ulibarri, 67 N.M. 336, 355 P.2d 275 (1960).
The facts of this case are set forth in State v. Lunn, 80 N.M. 383, 456 P.2d 216, supra. The facts include “evidence tending to show such a state of facts as may bring the homicide within the grade of manslaughter * * *.”
One of the most forthright opinions dealing with a failure to instruct on manslaughter was delivered by Justice Watson in State v. Diaz, 36 N.M. 284, 13 P.2d 883 (1932). In that case, the information charged murder in the first degree. The failure to give an instruction on voluntary manslaughter, which was supported by the evidence, constituted reversible error, even though the accused did not request such an instruction. Why ? The Court said:
In the first place, we consider what the accused has at stake; the forfeiture of his life if convicted of murder in the first degree, or the probable total forfeiture of his liberty if convicted in the second degree. In view of these possible consequences, it is not unreasonable to hold the trial court to a more unerring discharge of duty and to be more indulgent to the accused. 36 N.M. at 291, 13 P.2d at 887.
The basic reason for this conclusion in the instant case grows out of its history. In the second trial the jury was deadlocked. In the third trial the jury said “We recommend the defendant to the clemency of the court.” In the fourth trial, during deliberations there were some votes of “not guilty”. I am convinced by the tenor of the juries that, if given the opportunity, the juries would have found defendant guilty of manslaughter, the lesser included offense.
B. Inquiry into numerical division of the jury during their deliberation is reversible error.
While the jury was deliberating, the court inquired of the foreman of the jury:
The Court: My information as to where you are on time. I don’t want an indication as to how you are split and do not tell me or indicate in any way which way. Do you follow me? Just — I just want the count. I don’t want you to indicate which way it is for. I should ask, when was your last vote ?
Mr. Hoffman: I would say about 5:30.
The Court: O.K. Mr. Hoffman. Can you give a number talley ?
Mr. Hoffman: I would like to preface, there were three different kinds of votes, guilty, not guilty and undecided were the kinds of votes that were given out.
The Court: Let me ask you, are you somewhere like six to six, is that near?
Mr. Hoffman: No, we are kind of lopsided in one direction, kind of.
The Court: I expect you’re getting hungry after your cold lunch at 1:30.
Inquiry, as above, into numerical division of the jury during their deliberation is reversible error. Pirch v. Firestone Tire & Rubber Co., 80 N.M. 323, 455 P.2d 189 (Ct.App.1969); State v. Romero, 86 N.M. 674, 526 P.2d 816 (Ct.App.1974) (Sutin, J., dissenting).
In 1972, the Supreme Court adopted the Rules of Criminal Procedure. Section 41-23-43 is the only rule applicable after retirement of the jury. The only authority granted the trial court is to give the jury additional instructions or to correct any erroneous instructions it has given them. To read into this rule the right of district judges to visit with the jury, even with good conscience, makes the rule into a merry-go-round upon which children ride and play.
In homicide cases, we are not involved with money or property where “harmless error” can be used as a crutch. We are involved with human life and liberty. And let it not be said that courts which favor this view encourage homicide. All that the court says is: Give the defendant a fair trial.
C. Admission of testimony and exhibits is reversible error.
I agree with defendant that the testimony of the F.B.I. agents and the admission of certain exhibits were inadmissible and reversible error. State v. Kidd, 24 N.M. 572, 175 P. 772 (1917); compare State v. Carrillo, 82 N.M. 257, 479 P.2d 537 (Ct.App.1970); State v. Beachum, 82 N.M. 204, 477 P.2d 1019 (Ct.App.1970); State v. Gray, 79 N.M. 424, 444 P.2d 609 (Ct.App.1968).
To be admissible,, real evidence must be relevant. Sections 20-4-402-403, Wharton’s Criminal Evidence, § 635 (13th Ed. Torcia). If it is not relevant, its admission constitutes reversible error. United States v. Reid, 410 F.2d 1223 (7th Cir.1969); Landsdown v. United States, 348 F.2d 405 (5th Cir.1965); State v. Wynne, 353 Mo. 276, 182 S.W.2d 294 (1944); Bean v. State, 81 Nev. 25, 398 P.2d 251 (1965).
“Error in the admission of evidence ‘should not be declared harmless unless it is so without question.’ ” Wynne, supra, 182 S.W.2d at 300, quoting from State v. Richards, 334 Mo. 485, 494, 67 S.W.2d 58, 61 (1933).
Defendant is entitled to a new trial.
D. If the Supreme Court grants a new trial, intoxication should be considered in reducing the crime charged to manslaughter.
New Mexico has not yet contemplated adopting the California rule that intoxication may be considered by the jury in reducing a charge of second degree murder to manslaughter. People v. Waters, 266 Cal.App.2d 116, 71 Cal.Rptr. 863 (1968); People v. Conley, 64 Cal.2d 310, 49 Cal.Rptr. 815, 411 P.2d 911 (1966).
Manslaughter, like second degree murder, is not a specific intent crime. State v. Utter, 4 Wash.App. 137, 479 P.2d 946 (1971); State v. Mercer, 275 N.C. 108, 165 S.E.2d 328 (1969); 40 C.J.S. Homicide § 37. Therefore, voluntary intoxication is not a defense. State v. Tapia, 81 N.M. 274, 466 P.2d 551 (1970); State v. Williams, 76 N.M. 578, 417 P.2d 62 (1966).
I am not concerned here with voluntary intoxication as a defense to second degree murder or manslaughter. I am concerned with allowing the jury to weigh its effect on defendant’s mental capacity to determine whether he was unable to form the malice aforethought necessary for conviction of second degree murder. Waters, supra; Conley, supra.
The State presented evidence of defendant drinking vodka until midnight, shortly before the alleged crime was committed; and of defendant having drunk almost a quart before arriving at the home of the deceased. The defendant testified that he drank so much he remembered nothing from the time he left the bar. The trial court refused defendant’s tender of expert testimony as to the effect of acute intoxication on defendant’s capacity to commit murder in the second degree. The defendant tendered several instructions on voluntary intoxication which were denied.
Where a defendant is convicted of second degree murder, it should be prejudicial error for the trial court not to have instructed the jury that voluntary manslaughter may be found to exist if the jury finds that defendant could not have harbored malice aforethought, because of the effects which acute intoxication had on his mental state.
Our Supreme Court should consider adopting this rule. It involves a question of substantial public interest because of the great number of homicides in which there is evidence of intoxication.
I respectfully dissent.