State v. Ochoa

1937-NMSC-051, 41 N.M. 589, 72 P.2d 609



The evidence of aiding and abetting may be as broad and varied as are the means of communicating thought from one individual to another; by acts, conduct, words, signs, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that commission of an offense already undertaken has the aider's support or approval. Mere presence, of course, and even mental approbation, if unaccompanied by outward manifestation or expression of such approval, is insufficient.


A crowd gathered at the office of the justice of peace in an effort to free a prisoner who was there for a hearing. When the sheriff and his deputies attempted to return the prisoner to jail, gunfire was exchanged, and the sheriff was killed. Ten men were charged with the crime; seven were acquitted, and three were convicted of second-degree murder. On appeal, the court affirmed in part, reversed in part, and held that: (1) as to one of the defendants, no evidence sufficiently connected him with the unlawful design of the sheriff's slayer, and, therefore, no evidence supported his conviction of second-degree murder as an aider and abettor; (2) the other two defendants were involved in an assault on a deputy, which was sufficient to show that they shared the intent of the slayer, and aided and abetted him in his unlawful undertaking; (3) it was not error for the district court to refuse to grant defendants' motions for severance; (4) there were no errors in the instructions given to the jury; and (5) the complaint, as supplemented by the bill of particulars, was sufficient to inform defendants of the exact nature of the charges against them.


Did the evidence presented warrant submission of second-degree murder?




Justifying the submission of both first and second degree, the Attorney General in the State's brief says: "Discarding all of the theories requiring a first degree or nothing verdict, we still have two theories presented by the evidence shown (under) which the jury might find the appellants guilty of second degree murder. First, that one of the appellants actually shot and killed Sheriff Carmichael. Second, that the appellants or any of them aided and abetted the person or persons who actually shot and killed Sheriff Carmichael. Under either of the circumstances it was mandatory on the trial judge to submit both first and second degree murder to the jury."

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