State v. Middleton

Citations

• 26 N.M. 353
• 192 P. 483

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Evidence that the deceased procured a warrant and went with a.party to the home of the defendant with the ostensible purpose of arresting him is admissible, as tending to characterize his attitude toward the defendant at the time of the homicide and to account for his presence there, although the warrant may have been illegal and may have furnished no protection to the officer. P. 358</p> <p>2. Where the legality of a warrant, under which deceased purported to act, is questioned, it is a matter of law for the court to determine; and, although the evidence of the warrant may be admissible for some purposes, the jury should be instructed as to the purposes for which the evidence is admissible, and should be instructed that the warrant is illegal if such be the law. P. 359</p> <p>3. Where the defendant is ignorant that an attempted arrest of him is to be made, his action in killing the officer is to be viewed as in any other case, and an instruction to the effect tha.t, as the deceased had no right to arrest by, reason of the illegality of the warrant, the defendant could not be convicted of an offense greater than manslaughter, was properly refused. P. 361</p>