# State v. Gillette > New Mexico Court of Appeals · April 11, 1985 · 102 N.M. 695 URL: https://www.frixlaw.com/law-library/cases/9548110 ## Case - **Full name:** STATE of New Mexico, Plaintiff-Appellee, v. Ronald Edward GILLETTE, A/K/A Gary Lee Brown, Defendant-Appellant - **Court:** New Mexico Court of Appeals - **Decided:** April 11, 1985 - **Citations:** 102 N.M. 695; 699 P.2d 626 - **Precedential status:** Published - **Opinion:** Dissent by Hendley - **Judges:** Donnelly, Wood, Hendley - **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/9548110 ## How later opinions describe it (automated extraction) - finding ample evidence to support a finding that the defendant, a boarder in the home of the child’s mother for a period of time, occupied a position of authority based on evidence that the defendant was a “physically large, twenty-four-year-old” while the child was twelve, th… - concluding that evidence of the defendant’s “role of an authority figure in the home,” his “close, confidential relationship” with the child, his age, and his physical size supported the jury’s conclusion that the “defendant was in a position of authority and used his authorit… - affirming multiple convictions for attempted murder where the intended victim and two unintended victims ingested poison after the defendant attempted to poison the intended victim, noting that the defendant could be found guilty for attempting to murder each individual who in… - affirming three convictions of attempted murder when a defendant sent a poisoned drink to an intended victim, and the intended victim and two others ingested the drink but were not injured; finding defendant's felonious intent to kill transferred to others who foreseeably woul… ## Opinion text HENDLEY, Judge (dissenting). I dissent only from the “Attempted Murder” section of the majority opinion which deals with the doctrine of transferred intent. The question is whether the doctrine of transferred intent will apply so as to support the conviction of defendant for attempted first degree murder of Westbrook and Erdmann. I do not question the fact that our statute will support a charge of attempted first degree murder based on the doctrine of transferred intent. New Mexico has long recognized the doctrine of transferred intent. State v. Carpio, 27 N.M. 265 , 199 P. 1012 , 18 A.L.R. 914 (1921). The doctrine allows the elements of malice or intent to be demonstrated when an unintended victim is killed. See State v. Hamilton, 89 N.M. 746 , 557 P.2d 1095 (1976), and cases cited therein. As stated in R. Perkins & R. Boyce, Criminal Law, ch. 7, Section 8(C) (3d ed. 1982), at 924-25: If, without justification, excuse or mitigation, D with intent to kill A fires a shot which misses A but unexpectedly causes the death of B, D is guilty of murder. To speak of transferring the malice from A to B is merely to offer an unsound explanation (carried over from the law of torts) to support a very sound conclusion. The proper explanation is that D is guilty of murder in such a case because all elements of the offense are present, with mention if it seems necessary of the fact that as a crime the wrong was committed against the state____ If, without justification, excuse or mitigation D with intent to kill A fires a shot which misses A but unexpectedly inflicts a non-fatal injury upon B, D is guilty of an attempt to commit murder, — but the attempt was to murder A whom D was trying to kill and not B who was hit quite accidentally. And so far as the criminal law is concerned there is no transfer of this intent from one to the other so as to make D guilty of an attempt to murder B. [Footnote omitted.] Hence an indictment or information charging an attempt to murder B, or (under statute) an assault with intent to murder B, will not support a conviction if the evidence shows that the injury to B was accidental and the only intent was to murder A. 24 There was no evidence in the instant case which indicated that defendant was even aware of the existence of Westbrook and Erdmann. State v. Martin, 342 Mo. 1089 , 119 S.W.2d 298 (1938). Therefore, the convictions of attempted murder as relates to Westbrook and Erdmann should be reversed for a failure of proof. State v. Malouff, 81 N.M. 619 , 471 P.2d 189 (Ct.App.1970). In my view, the majority extends the doctrine beyond reasonable bounds. Will the next extension be to all those who handled the can of Dr. Pepper, or maybe all those who were in the hospital at the time the Dr. Pepper was delivered? I would not extend the doctrine as has been done by the majority. Accordingly, I dissent. 24 Lacefield. v. State, 34 Ark. 275 (1879); Jones v. State, 159 Ark. 215 , 251 S.W. 690 (1923); Commonwealth v. Morgan, 74 Ky. 601 (1876); State v. Mulhall, 199 Mo. 202 , 97 S.W. 583 (1906); State v. Williamson, 203 Mo. 591 , 102 S.W. 519 (1907); State v. Shanley, 20 S.D. 18 , 104 N.W. 522 (1905); People v. Robinson, 6 Utah 101 [ 21 P. 403 ] (1889); Rex v. Holt, 7 Car. & P. 518, 173 Eng.Rep. 229 (1836). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548110. Public record. Not legal advice.