# State v. Heisler > New Mexico Supreme Court · April 8, 1954 · 58 N.M. 446 URL: https://www.frixlaw.com/law-library/cases/9529375 ## Case - **Full name:** State v. Heisler - **Court:** New Mexico Supreme Court - **Decided:** April 8, 1954 - **Citations:** 58 N.M. 446; 272 P.2d 660 - **Precedential status:** Published - **Opinion:** On rehearing by Sadler - **Judges:** Sadler, McGhee, Compton, Lujan, Seymour, Lu-Jan - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9529375 ## How later opinions describe it (automated extraction) - stating that “where self-defense is involved in a criminal case and there is any evidence, although slight, to establish [self-defense], 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 issue that… - declining to hold that a self-defense instruction was appropriate when doing so "would license any participant in a physical combat waged between two men with hands and fists, thinking himself about to be the loser, to slay his opponent with whatever weapon he could lay his ha… - observing, “where self-defense is involved in a criminal case and there is any evidence, although slight, to establish [such defense], 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 [that] issue” - holding that a defendant who shoots an individual during a fist fight is not entitled to a jury instruction on justifiable homicide ## Opinion text On Motion for Rehearing SADLER, Justice. The defendant has moved for rehearing, setting up three grounds therefor, all of which actually resolve themselves into one and the same and will be so treated. We thus are confronted with a strong and vigorous challenge to the correctness of the conclusion which forms the basis of our order of affirmance, namely, that the defendant was not entitled to an instruction on self-defense. If he was it may be assumed, as so aptly urged by able counsel for defendant, although we did not pursue the matter to a decision, that there was error in the instructions given on the questioned subject which would call for a new trial. Our disposition of the claim of error on the instructions was the obvious one of commenting, as this court had done in other like cases cited in the opinion filed, that to the extent defendant had any instructions on self-defense, he received more than he was entitled to. It is said by counsel for defendant that the rule of Walker v. State, 52 Ariz. 480 , 83 P.2d 994 , one of the cases we cite in support of our conclusion, applies a new test of when the court may with propriety decline to submit self-defense, thus departing from that previously obtaining as announced in the cases of State v. Martinez, 30 N.M. 178 , 230 P. 379, 382 , Id., 39 N.M. 290 , 46 P.2d 657 . In these cases, although we spoke abstractly since the precise question was not before us in either case (and quoting from the earlier case) we said: “Where self-defense is involved in a criminal case, and there is any evidence, although slight, to establish the same, it is proper for, as well as the duty of, the court to instruct the jury fully and clearly on all phases of the law of self-defense that are warranted by the evidence, even though such defense is supported only by the defendant’s own testimony.” In Walker v. State, supra, the rule applicable on the subject (and it is quoted in our opinion already filed) is thus stated: “ * * * It is the law in most jurisdictions that if there is evidence appearing in the record which would raise a reasonable doubt as to whether the homicide with which a defendant is charged was committed in self-defense, it is the duty of the trial court to instruct upon that issue, whether the evidence raising it is brought out by the state or by the defense, and a failure to so instruct is error. (Citations omitted.) We think this is the law in Arizona also. On the other hand, 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.” Taking notice of the language in the Martinez cases, we said: “We give full force to this doctrine; nevertheless, to call for an instruction on the subject, the evidence may not be so slight as to be incapable of raising a reasonable doubt in the jury’s mind on whether a defendant accused of a homicide did act in self-defense. Walker v. State, supra. It is with this limitation on the rule announced in the two cases of State v. Martinez, supra, that we are here concerned. We are constrained to give it as our considered judgment that the evidence before us on the subject fails to measure up to the test which called upon the trial court to instruct on self-defense.” It is on this language of our opinion that counsel chiefly rely to sustain their charge that we depart from the rule adhered to in the Martinez cases and chart a new course by establishing a different and modified rule. We do not so view the matter. Indeed, when what we say in the Martinez cases is properly understood, there is in truth no difference at all between the rule in Arizona and our own rule on the subject discussed. When we read the abstract statements in the Martinez cases, where the precise question was not involved, in the light of the language employed in State v. Aragon, 35 N.M. 198 , 292 P. 225, 227 (also cited in our opinion on file) where the identical question was presented, we readily sense that there actually is no difference between the Arizona Supreme Court and our own on this subject. After reviewing the facts in that case, where we held the court properly declined to instruct on self-defense, we said: “ * * * From a reading of the record, it seems plain that deceased •did not strike first. The most that may be claimed by appellant is that deceased ‘shoved’ him. There is no substantial evidence warranting a belief by appellant that deceased entertained an apparent design to take his life or inflict some great bodily harm upon him.” As the opinion in State v. Aragon suggests and an examination of the record confirms there was some evidence of self-defense tendered, upon an appraisal of which Counsel for the defendant placed 'great -reliance in making practically the same argument here presented to show error in the trial court’s refusal to submit the issue to the jury. It was not evidence of sufficient probative force, however, to satisfy either the trial court or this court that it was capable of creating in the jury’s mind a reasonable doubt as to whether the defendant acted in self-defense, State v. Walker, supra; or, to express it differently, it was deemed “too remote and trivial” to support submission of the issue to the jury. Yeager v. State, 109 Tex.Cr.R. 213 , 3 S.W.2d 808 . But employing either mode of expressing the thought, viz., that found in State v. Walker, supra, or its equivalent as quoted from Yeager v. State, supra, each differs but little in form and, we think, none at all in meaning from the language employed by us in State v. Aragon quoted above in sustaining the trial court’s refusal to submit self-defense, where we said there was no “substantial evidence warranting a belief by appellant that deceased entertained an apparent design to take his life or inflict some great bodily harm upon him.” It is argued that the disparity in size and apparent physical strength of the defendant and the deceased adds weight to the claim of error in refusing to submit the issue of self-defense. The same argument was made in briefs filed on the original hearing and was not overlooked by us in entering our order of affirmance. As a matter of fact, the question of disparity in size of the parties involved seems somewhat in the nature of an afterthought, in so far as it might have affected the right to an instruction on self-defense. Neither the accused in his testimony, nor his counsel by anything said or done thereafter, attached noticeable weight or significance to such disparity as the testimony showed. Under the circumstances, the disparity mentioned may not be successfully invoked to bring the evidence within the test entitling the accused to instructions on self-defense. We have given this case throughout the intensive study and consideration which the extreme penalty imposed on defendant, or on any defendant in such cases, inevitably enjoins. The constitutional guaranties carried in the bill of rights for the protection of an accused on trial have been accorded him in the trial of his case. He has had a fair trial below and has been ably represented in this court by experienced counsel. They have left no stone unturned in presenting the defendant’s claims of error in the most favorable light possible. We have weighed those claims and the arguments supporting them with scrupulous care. Always we come back to the conclusion announced in the opinion on file that no reversible error was committed by the court below and that its judgment should be affirmed. It follows from what has been said that the motion for rehearing is not well taken and should be denied. It is so ordered. McGHEE, C. J., and COMPTON, LU-JAN, and SEYMOUR, JJ., concur. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9529375. Public record. Not legal advice.