Manslaughter is the unlawful killing of a human being without malice.

A. Voluntary manslaughter consists of manslaughter committed upon a sudden quarrel or in the heat of passion.

Whoever commits voluntary manslaughter is guilty of a third degree felony resulting in the death of a human being.

B. Involuntary manslaughter consists of manslaughter committed in the commission of an unlawful act not amounting to felony, or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection.

Whoever commits involuntary manslaughter is guilty of a fourth degree felony.

History: 1953 Comp., § 40A-2-3, enacted by Laws 1963, ch. 303, § 2-3; 1994, ch. 23, § 2.

Cross references. — For homicide by vehicle, see 66-8-101 NMSA 1978.

For instruction on voluntary manslaughter, see UJI 14-220.

The 1994 amendment, effective July 1, 1994, added "resulting in the death of a human being" at the end of the second paragraph of both Subsections A and B.

Applicability. — Laws 1994, ch. 23, § 4 provided that the provisions of Laws 1994, ch. 23, § 2 apply only to persons sentenced for crimes committed on or after July 1, 1994.

I. GENERAL CONSIDERATION.

Crime and punishment properly separated. — The fact that the former manslaughter statute, 40-24-7, 1953 Comp., merely defined the offense, while 40-24-10, 1953 Comp., provided the penalty, does not mean that the statute was defective or the acts defined not crimes; crime and punishment can be separated and distinguished by the legislature. State v. McFall, 1960-NMSC-084, 67 N.M. 260, 354 P.2d 547 (decided under former law).

Applicability to motor vehicle accidents. — This section, the involuntary manslaughter statute, was in no sense repealed by adoption of the negligent homicide statute (64-22-1, 1953 Comp.), but has been in full force and effect at all times; although cases of death resulting from driving while under the influence of intoxicating liquor were taken out from under its operation by adoption of Section 66-8-102 NMSA 1978, which made driving under the influence a felony, because when a death resulted it would not be "in the commission of an unlawful act not amounting to a felony," upon repeal of the negligent homicide statute by Laws 1957, ch. 239, § 7, and reinstatement of the offense of driving under the influence as a misdemeanor by Laws 1955, ch. 184, § 8, the reapplicability of the involuntary manslaughter statute automatically ensued. State v. Deming, 1959-NMSC-074, 66 N.M. 175, 344 P.2d 481 (decided under former law).

Manslaughter is one of the four kinds of homicide, and is included within a charge of murder. State v. La Boon, 1960-NMSC-118, 67 N.M. 466, 357 P.2d 54; State v. McFall, 1960-NMSC-084, 67 N.M. 260, 354 P.2d 547.

Manslaughter included in murder. — Manslaughter is included in the charge of murder. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969).

Manslaughter not "necessarily included" in murder. — Under appropriate circumstances, where there is evidence that the defendant acted as a result of sufficient provocation, a charge of manslaughter could properly be said to be included in a charge of murder, and, accordingly, it would not be error to submit N.M.U.J.I. Crim. 2.20 (see UJI 14-220 NMRA) to the jury; however, it cannot seriously be maintained that manslaughter is invariably "necessarily included" in murder, since different kinds of proof are required to establish the distinct offenses. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Open charge of murder adequate. — A charge of murder in violation of statutes pertaining to first and second degree murder and voluntary and involuntary manslaughter is not a charge of mutually exclusive crimes, nor is it a charge of distinct and separate offenses; rather, the charge is an open charge of murder, a form of charging approved, under which the jury is to be instructed on the degrees of the unlawful killing for which there is evidence, and it gave defendant notice that he must defend against a charge of unlawfully taking a human life. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds by State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Information sufficiently particular. — Information charging manslaughter, which enumerated the section defining the offense and the section fixing the penalty, did not contravene N.M. Const., art. II, § 14; although defendant was entitled "to demand the nature and cause of the accusation," against him, that remedy was available by way of a bill of particulars. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Information insufficient. — An information was insufficient which charged that defendants willfully and feloniously killed named person contrary to statute. State v. Gray, 1934-NMSC-018, 38 N.M. 203, 30 P.2d 278.

Permissible to convict accessory of lesser offense. — The fact that the accessory was convicted of involuntary manslaughter while the principal was convicted of voluntary manslaughter is a permissible result under the accessory statute. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Suspension of convicted attorney. — Plea of guilty to crime of involuntary manslaughter, resulting from driving under the influence, supported recommendation of suspension of defendant attorney from practice of law. In re Morris, 1964-NMSC-235, 74 N.M. 679, 397 P.2d 475.

II. VOLUNTARY MANSLAUGHTER.

Meaning of "unlawful". — Subsection A defines voluntary manslaughter as "the unlawful killing of a human being without malice upon a sudden quarrel or in the heat of passion". From Section 30-2-1 NMSA 1978 it may be inferred that "unlawful" means "without lawful justification or excuse." State v. Parish, 1994-NMSC-073, 118 N.M. 39, 878 P.2d 988.

Provocation part of voluntary manslaughter. — Although the court has not ruled unequivocally either that provocation is or is not an "element" of voluntary manslaughter, there must be some evidence that the killing was committed upon a sudden quarrel or in the heat of passion in order for a conviction of voluntary manslaughter to stand; in this sense, provocation is a part of voluntary manslaughter. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

Intent. — Although voluntary manslaughter is a general intent crime, where attempted second degree murder is offered as a greater included offense and sufficient provocation is at issue in the trial, voluntary manslaughter may be a specific intent crime. State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537.

Attempt. — Under limited circumstances, where attempted second degree murder is offered as a greater included offense and sufficient provocation is at issue in the trial, attempted voluntary manslaughter is a crime in New Mexico. State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537.

Attempted voluntary manslaughter is a lesser included offense of attempted second degree murder where sufficient provocation is at issue in the trial. State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537.

Provocation and disclosure of provocation. — The provocation and the disclosure of the events constituting the provocation may occur at different times. State v. Munoz, 1992-NMCA-004, 113 N.M. 489, 827 P.2d 1303, cert. denied, 113 N.M. 352, 826 P.2d 573.

Nature of sufficient provocation. — To reduce the killing from murder to voluntary manslaughter all that is required is sufficient provocation to excite in the mind of the defendant such emotions as either anger, rage, sudden resentment or terror as may be sufficient to obscure the reason of an ordinary man, and to prevent deliberation and premeditation, and to exclude malice, and to render the defendant incapable of cool reflection. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Evidence of provocation sufficient to reduce a charge of second degree murder to voluntary manslaughter must be such as would affect the ability to reason and cause a temporary loss of self control in ordinary person of average disposition. State v. Jackson, 1983-NMCA-007, 99 N.M. 478, 660 P.2d 120, rev'd on other grounds, 1983-NMSC-098, 100 N.M. 487, 672 P.2d 660.

Provocation has subjective and objective components. — Provocation is not strictly subjective. Defendant must demonstrate that defendant's extreme emotions would affect the ability to reason in an ordinary person. State v. Taylor, 2000-NMCA-072, 129 N.M. 376, 8 P.3d 863, cert. quashed, 131 N.M. 64, 33 P.3d 24.

The law does not permit one who intentionally instigates an assault on another to then rely on the victim's reasonable response to that assault as evidence of provocation sufficient to mitigate the subsequent killing of the victim from murder to manslaughter. State v. Gaitan, 2002-NMSC-007, 131 N.M. 758, 42 P.3d 1207; State v. Munoz, 1992-NMCA-004, 113 N.M. 489, 827 P.2d 1303, cert. denied, 113 N.M. 352, 826 P.2d 573.

Words insufficient provocation. — No mere words, however opprobrious or indecent, were deemed sufficient to arouse ungovernable passion, so as to reduce a homicide from murder to manslaughter. State v. Trujillo, 1921-NMSC-111, 27 N.M. 594, 203 P. 846. See State v. Lujan, 1980-NMSC-036, 94 N.M. 232, 608 P.2d 1114, but see Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Words alone, however scurrilous or insulting, will not furnish adequate provocation to make a homicide voluntary manslaughter. State v. Castro, 1982-NMSC-125, 592 P.2d 185, cert. denied, 92 N.M. 621, 593 P.2d 62 (1979), but see Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Words and push insufficient provocation. — Even if it was true, as the defendant had told a witness, that his stepdaughter had pushed him and threatened that her father would come from California and kill him, this would not be adequate to constitute sufficient provocation and to require a jury charge on voluntary manslaughter. State v. Stills, 1998-NMSC-009, 125 N.M. 66, 957 P.2d 51.

"Informational words" may constitute adequate provocation. — Informational words, as distinguished from mere insulting words, may constitute adequate provocation. The substance of the informational words spoken, the meaning conveyed by those informational words and the ensuing arguments and other actions of the parties, when taken together, can amount to provocation. Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Discipline of child not provocation. — Parent disciplining the parent's child, even with a slap to the child's face, is insufficient provocation as a matter of law to reduce the charge of second degree murder to voluntary manslaughter. State v. Taylor, 2000-NMCA-072, 129 N.M. 376, 8 P.3d 863, cert. quashed, 131 N.M. 64, 33 P.3d 284 (2001).

Sudden quarrel or passion mandatory. — Evidence of a sudden quarrel or heat of passion, tending to show provocation sufficient to negate malice and reduce the degree of felonious homicide from murder to manslaughter, is indispensable to a conviction for voluntary manslaughter. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

To convict of voluntary manslaughter, the jury must have evidence that there was a sudden quarrel or heat of passion at the time of the commission of the crime (in order, under the common-law theory, to show that the killing was the result of provocation sufficient to negate the presumption of malice). Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39. See State v. Castro, 1979-NMCA-023, 92 N.M. 585, 592 P.2d 185, cert. denied, 92 N.M. 621, 593 P.2d 62.

It is voluntary manslaughter when the killing is committed upon a sudden quarrel or in the heat of passion. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Sudden anger or heat of passion and provocation must concur to make a homicide voluntary manslaughter. State v. Castro, 1979-NMCA-023, 92 N.M. 585, 592 P.2d 185, cert. denied, 92 N.M. 621, 593 P.2d 62.

Provocation must concur with sudden anger or heat of passion, such that an ordinary person would not have cooled off before acting. Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Evidence of passion or quarrel sufficient. — Where there was sufficient evidence, even under the circumstances testified to by the appellant herself, from which the jury could find that the shooting occurred in the heat of passion or as the result of a sudden quarrel, there was sufficient evidence to sustain the manslaughter conviction. State v. Rose, 1968-NMSC-091, 79 N.M. 277, 442 P.2d 589, cert. denied, 393 U.S. 1028, 89 S. Ct. 626, 21 L. Ed. 2d 571 (1969).

Evidence of "sudden quarrel" insufficient. — Evidence which may support an inference of a smoldering desire within the defendant to avenge his former girl friend dating another male by doing away with both of them would not support an inference of a "sudden quarrel"; nor can such facts be held to give rise to that provocation recognized in the law as being adequate and proper to negate the presumption of malice. State v. Robinson, 1980-NMSC-049, 94 N.M. 693, 616 P.2d 406.

Passion engendered by fear. — Instruction as to voluntary manslaughter was not error where, from defendant's own testimony, he shot deceased during heat of passion engendered by fear or terror. State v. Vargas, 1937-NMSC-049, 42 N.M. 1, 74 P.2d 62.

Transference of passion theory unauthorized. — Where there was no evidence that such a condition as a sudden quarrel or the heat of passion existed between defendant and his baby boy, the only evidence of quarrel or heat of passion being between defendant and his wife, there was no evidence tending to establish voluntary manslaughter, since the weight of authority is against allowing transference of one's passion from the object of the passion to a related bystander. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628.

To reduce murder to voluntary manslaughter, victim must be source of provocation. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Defendant initiates the provocation. — If the defendant intentionally caused the victim to do acts which the defendant could claim provoked him, he cannot kill the victim and claim that he was provoked; in such case, the circumstances show that he acted with malice aforethought, and the offense is murder. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Acts of peace officer insufficient. — Acts of a peace officer exercising his duties in a lawful manner cannot rise to the level of sufficient provocation. State v. Martinez, 1982-NMCA-020, 97 N.M. 540, 641 P.2d 1087, cert. denied, 98 N.M. 50, 644 P.2d 1039; State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Exercise of legal right insufficient. — The exercise of a legal right, no matter how offensive, is not such provocation as lowers the grade of homicide from murder to voluntary manslaughter. State v. Manus, 1979-NMSC-035, 93 N.M. 95, 597 P.2d 280, overruled on other grounds by Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162; State v. Marquez, 1981-NMCA-105, 96 N.M. 746, 634 P.2d 1298.

Distinction between manslaughter and self-defense. — The line of demarcation between a homicide which amounts to voluntary manslaughter and one which amounts to justifiable homicide in self-defense is not always clearly defined and depends upon the facts of each case as it arises; those facts are for the jury, under instructions from the court. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382.

Sufficient evidence of voluntary manslaughter. — In defendant's trial for voluntary manslaughter, where the evidence established that the victim's actions in repeatedly charging at defendant aroused sufficient fear in defendant, which would affect his ability to reason and cause a temporary loss of self control, but that a reasonable person in the same circumstances would not have used a knife to stab the victim when the victim did not have a weapon, the evidence was sufficient for a jury to find sufficient provocation and that defendant's actions were not taken in self-defense. State v. Fox, 2017-NMCA-029, cert. granted.

Self-defense and provocation. — Self-defense and provocation supporting a conviction for voluntary manslaughter are not mutually incompatible. State v. Melendez, 1982-NMSC-039, 97 N.M. 738, 643 P.2d 607.

Conviction for manslaughter on failure of self-defense plea. — When facts are present which give rise to a plea of self-defense, it is not unreasonable that if the plea fails, the accused should be found guilty of voluntary manslaughter. State v. Harrison, 1970-NMCA-071, 81 N.M. 623, 471 P.2d 193, cert. denied, 81 N.M. 668, 472 P.2d 382; State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594.

Whenever the evidence is sufficient to raise a question of self-defense, an instruction on voluntary manslaughter should also be submitted to the jury if the evidence supports sufficient provocation of fear for one's own safety. State v. Abeyta, 1995-NMSC-052, 120 N.M. 233, 901 P.2d 164, overruled on other grounds by State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

Not manslaughter absent supporting evidence. — Where defendant contended he shot deceased solely to protect himself from a threatened attack, and stated that at the time he shot and killed deceased he was calm and cool, being by nature so disposed, the trial court was correct in refusing to submit the issue of voluntary manslaughter to the jury. State v. Luttrell, 1923-NMSC-024, 28 N.M. 393, 212 P. 739.

Unnecessary force in defending self. — Defendant's choice of deadly force when confronted with a possible battery of less than deadly force would sustain a conviction of voluntary manslaughter but not for murder. State v. McLam, 1970-NMCA-129, 82 N.M. 242, 478 P.2d 570.

Killing of fleeing, would-be felon. — A well-founded belief that a known felony was about to be committed will extenuate a homicide committed in prevention of the supposed crime, and this upon a principle of necessity; but when the necessity ceases, and the supposed felon flees, and thereby abandons his proposed design, a killing in pursuit, however well-grounded the belief may be that he intended to commit a felony, will not extenuate the offense of the pursuer. Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152.

Elements distinguished between crimes. — Voluntary manslaughter and shooting at or from a motor vehicle resulting in great bodily harm have distinct elements. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

Death not equated with great bodily harm. — Comparing the voluntary manslaughter statute with the shooting at or from a motor vehicle statute and the statutory definition of great bodily harm in Section 30-1-12 NMSA 1978, it is clear that the legislature does not "equate" death with great bodily harm. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

Voluntary manslaughter, aggravated battery and kidnapping. — Where defendant shot the victim in the chest in defendant's vehicle, drove the unconscious victim in the vehicle to an isolated area, and shot the victim twice in the head while the victim was still alive; and defendant used two different types of force to shoot the victim in the chest and to keep the victim's unconscious body in the vehicle, defendant's convictions of voluntary manslaughter for shooting the victim in the chest, aggravated battery for shooting the victim in the head, and kidnapping for keeping the victim in defendant's vehicle and transporting the victim to the isolated area were not based on unitary conduct and did not violate defendant's right to be free from double jeopardy. State v. Urioste, 2011-NMCA-121, 267 P.3d 820, cert. granted, 2011-NMCERT-012.

No double jeopardy violation for convictions. — Defendant's convictions of voluntary manslaughter and shooting at or from a motor vehicle do not violate double jeopardy. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

Separate punishments intended. — The legislature intended to punish the crimes of voluntary manslaughter and shooting at or from a motor vehicle separately. State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563.

Cumulative punishment is precluded for shooting at a vehicle and homicide. — New Mexico jurisprudence precludes cumulative punishment for the offenses of causing great bodily harm to a person by shooting at a motor vehicle and the homicide resulting from the penetration of the same bullet into the same person. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

Where defendant and defendant's companions were accosted by a rival gang in front of defendant's family home, guns were pulled on both sides and defendant's sibling was severely wounded by gunshots in the leg and abdomen; while defendant's group were trying to help defendant's sibling in the driveway and stop the bleeding from the gunshot wounds, the person in the rival gang who had been shooting at defendant and defendant's companions returned in a Ford Expedition; when defendant saw gunfire coming from the Expedition, defendant ran into the house and retrieved an AK-47 rifle and began shooting at the Expedition; the driver of Expedition was shot seven times and died; the jury convicted defendant of voluntary manslaughter and shooting into a motor vehicle resulting in great bodily harm, the Double Jeopardy Clause protected defendant from being punished both for the homicide of the victim and for shooting into a vehicle causing great bodily harm to the victim where both convictions were premised on the unitary act of shooting the victim. State v. Montoya, 2013-NMSC-020, 306 P.3d 426, overruling State v. Gonzales, 1992-NMSC-003, 113 N.M. 221, 824 P.2d 1023, State v. Dominguez, 2005-NMSC-001, 137 N.M. 1, 106 P.3d 563 and State v. Riley, 2010-NMSC-005, 147 N.M. 557, 226 P.3d 656.

Accidental killing will not support conviction of voluntary manslaughter. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594.

Diminished responsibility for manslaughter. — The defense of diminished responsibility is analogous to that of insanity, in that expert testimony on the issue of diminished responsibility by reason of mental disease or defect is not conclusive on the fact finder. The jury is free to believe or disbelieve such testimony, and if such testimony is disbelieved the presumption of full responsibility, which is viewed as included in the presumption of sanity, remains in effect. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Issue of responsibility properly submitted. — Evidence of insanity may be so overwhelming as to require the direction of a verdict of acquittal, as may be evidence of diminished responsibility. Where the evidence was not of such a quality as to require a directed verdict, the issue of defendant's responsibility for the crime of voluntary manslaughter was properly submitted to the jury. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Effect of conviction unsupported by evidence. — It is error for the court to submit to the jury an issue of whether defendant was guilty of voluntary manslaughter when the facts establish either first or second degree murder, but could not support a conviction of voluntary manslaughter and, accordingly, upon acquittal of murder and conviction of voluntary manslaughter, a reversal and discharge of the accused is required. State v. Lopez, 1968-NMSC-092, 79 N.M. 282, 442 P.2d 594.

No double jeopardy violations for sentence enhancements. — Upon conviction of voluntary manslaughter, with firearm enhancement, imposition of a three-year sentence under this section, plus an additional three-year sentence under 31-18-15 NMSA 1978, and an additional one-year firearm enhancement, did not result in multiple punishments for the same offense in violation of double jeopardy. State v. Alvarado, 1997-NMCA-027, 123 N.M. 187, 936 P.2d 869.

Sufficient evidence. — Where the victim was smoking and injecting methamphetamine; the victim's behavior became increasingly erratic; the victim was playing with two knives; defendant wrestled with the victim, attempting to disarm and restrain the victim; the victim was uncontrollable, violent, and wild; defendant put the victim in a "choke hold" on three occasions, but did not choke the victim to unconsciousness; each time defendant released the victim, the victim continued to violently struggle; even though defendant eventually duct taped the victim, the victim continued to struggle; the victim eventually stopped breathing and could not be revived; and the victim's death was caused by cervical compression or neck compression with physical restraint and methamphetamine intoxication as contributing causes, there was sufficient evidence to support defendant's conviction of voluntary manslaughter. State v. Maples, 2013-NMCA-052, 300 P.3d 739, cert. granted, 2013-NMCERT-004.

III. INVOLUNTARY MANSLAUGHTER.

A. IN GENERAL.

Involuntary manslaughter statute excludes all cases of intentional killing, and includes only unintentional killings by acts unlawful, but not felonious, or lawful, but done in an unlawful manner, or without due caution and circumspection; the killing must be unintentional to constitute involuntary manslaughter, and, if it is intentional and not justifiable, it belongs in some one of the classes of unlawful homicide of a higher degree than involuntary manslaughter. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds, State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Involuntary manslaughter was confined to cases where the killing was unintentional. State v. Pruett, 1921-NMSC-110, 27 N.M. 576, 203 P. 840.

Involuntary manslaughter may be committed by both unlawful and lawful acts. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Distinction between lawful and unlawful acts. — In distinguishing between unlawful and lawful acts, the statute applies the language, defined by the courts to mean criminal negligence, only to the lawful act portion of the statute. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Criminal negligence is not element of involuntary manslaughter by unlawful act under Subsection B, nor the negligence which is a part of Section 30-7-4 NMSA 1978 (relating to negligent use or handling of a weapon). State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Criminal negligence required for involuntary manslaughter by lawful act. — A killing by lawful act, to be involuntary manslaughter, depends on whether the lawful act was done in an unlawful manner or without due caution and circumspection. The phrase "without due caution and circumspection" has been held to involve the concept of "criminal negligence," which concept includes conduct which is reckless, wanton or willful. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Showing of criminal negligence is required for conviction of involuntary manslaughter, whether based on an "unlawful act" or "lawful act". State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209, aff'd, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131.

Reckless disregard of others. — Merely driving on the wrong side of the road could be inadvertence and not sufficient to convict, but driving on the wrong side of the road coming up a hill, where visibility was obstructed, showed a heedless and reckless disregard of the rights of others. Garrett v. Howden, 1963-NMSC-222, 73 N.M. 307, 387 P.2d 874.

Inadvertently allowing an automobile to encroach upon the wrong side of the road while going up an incline so steep cars beyond its crest may not be seen constitutes a reckless, willful and wanton disregard of consequences to others, and will support conviction for manslaughter if one be killed as a result thereof. State v. Rice, 1954-NMSC-037, 58 N.M. 205, 269 P.2d 751.

Negligent use of weapon. — A conviction of involuntary manslaughter by negligent use of a weapon requires negligence which is ordinary. State v. Grubbs, 1973-NMCA-096, 85 N.M. 365, 512 P.2d 693, overruled on other grounds, Santillanes v. State, 1993-NMSC-012, 115 N.M. 215, 849 P.2d 358; State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209.

Use of firearm enhancement for negligent use. — Under the facts of this case, the state was required to prove that the defendant negligently used a firearm to commit a noncapital felony and this conduct resulted in the death of a human being. Use of a firearm is the same conduct required to enhance the defendant's sentence under Section 31-18-16A NMSA 1978. Because the state would not be required to prove any additional facts in order to have the defendant's sentence enhanced, the firearm enhancement statute is subsumed within the offense of involuntary manslaughter by negligent use of a firearm. State v. Franklin, 1993-NMCA-135, 116 N.M. 565, 865 P.2d 1209.

Defense to involuntary manslaughter. — Defendant charged with involuntary homicide could raise the theory of self-defense and was entitled to a jury instruction on her theory of defense of another. Any anomalies in the evidence will be resolved by the properly instructed jury. State v. Gallegos, 2001-NMCA-021, 130 N.M. 221, 22 P.3d 689, cert. denied, 130 N.M. 459, 26 P.3d 103.

Negligent self-defense as involuntary manslaughter. — If defendant could be viewed as in a position where his safety or the safety of his friend was threatened, and if in an attempt to protect himself or ward off the attackers, defendant inadvertently shot the victim, then his actions could be viewed as a lawful act of self-defense committed in a unlawful manner or without due caution and circumspection, such that an instruction on involuntary manslaughter based on negligent self-defense should have been given. State v. Arias, 1993-NMCA-007, 115 N.M. 93, 847 P.2d 327, overruled on other grounds, State v. Abeyta, 1995-NMSC-052, 120 N.M. 233, 901 P.2d 164, overruled on other grounds, State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

If a defendant shoots someone in imperfect self-defense, the charge of murder can only be mitigated to voluntary manslaughter and an instruction on involuntary manslaughter is inappropriate. State v. Abeyta, 1995-NMSC-052, 120 N.M. 233, 901 P.2d 164, overruled on other grounds, State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

Accidental shooting in process of imperfect self-defense. — While a claim of imperfect self-defense does not give rise to the need for an involuntary manslaughter instruction, a claim of accidental shooting might; furthermore, it is possible for an accidental shooting to occur in the process of imperfect self-defense. State v. Abeyta, 1995-NMSC-052, 120 N.M. 233, 901 P.2d 164, overruled on other grounds, State v. Campos, 1996-NMSC-043, 122 N.M. 148, 921 P.2d 1266.

Resisting search. — Homicide committed in resisting deputy sheriff who was searching defendant's house without a warrant was involuntary manslaughter if the resistance constituted a misdemeanor, as when the deputy was merely engaged in the "execution of his office," and instruction leaving jury to determine the degree of murder was erroneous. State v. Welch, 1933-NMSC-084, 37 N.M. 549, 25 P.2d 211.

Inflicting a beating is unlawful act. State v. Holden, 1973-NMCA-092, 85 N.M. 397, 512 P.2d 970, cert. denied, 85 N.M. 380, 512 P.2d 953.

Involuntary manslaughter instruction improper. — Inflicting a beating is an unlawful act, and accordingly, there was no basis for an instruction on involuntary manslaughter by lawful act, nor was there any basis for an instruction on manslaughter by unlawful act not amounting to a felony at defendant's trial for murder of his baby boy. State v. Gutierrez, 1975-NMCA-121, 88 N.M. 448, 541 P.2d 628.

No foundation for involuntary theory. — Where the uncontradicted evidence showed that defendant killed her husband with two and possibly three well-placed shots into his person fired at close range while he lay on the couch and defendant stood over him with a pistol purchased by defendant earlier in the day, and immediately following a discussion about the victim leaving the defendant, no foundation existed for an instruction on involuntary manslaughter, and the trial court properly refused to instruct on this theory of the case. State v. Gardner, 1973-NMSC-034, 85 N.M. 104, 509 P.2d 871, cert. denied, 414 U.S. 851, 94 S. Ct. 145, 38 L. Ed. 2d 100 (1973).

Intentional shooting not involuntary manslaughter. — The killing of a person by intentionally shooting him with a rifle, if not justified by the law of self-defense, would constitute at least an assault with a deadly weapon, and would be a felony, and hence not involuntary manslaughter. State v. Pruett, 1921-NMSC-110, 27 N.M. 576, 203 P. 840.

Homicide by vehicle statute preempts manslaughter statute. — The specific homicide by vehicle statute, Section 66-8-101 NMSA 1978, preempts the involuntary manslaughter statute in unintentional vehicular homicide cases. State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209, aff'd, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131.

Careless driving statute, Section 66-8-114 NMSA 1978, which requires a showing of only civil negligence, cannot be used as the basis for involuntary manslaughter. State v. Yarborough, 1995-NMCA-116, 120 N.M. 669, 905 P.2d 209, aff'd, 1996-NMSC-068, 122 N.M. 596, 930 P.2d 131.

Evidence insufficient to convict. — Evidence that defendant was driving an unfamiliar car over relatively unfamiliar roads, that 800 feet north of where the accident occurred defendant drove over a hill with a 2% grade with a curve at the bottom of it and did not slow down, that defendant had consumed two beers before the accident, and that, unknown to defendant, the tire that blew out was defective, even when considered cumulatively, failed to disclose the state of mind required to be shown for a conviction under this section. State v. Hayes, 1966-NMSC-260, 77 N.M. 225, 421 P.2d 439.

B. PROXIMATE CAUSE.

Proximate cause requisite for conviction. — Unlawful act must constitute proximate cause of the homicide to warrant a conviction of involuntary manslaughter. State v. Seward, 1942-NMSC-002, 46 N.M. 84, 121 P.2d 145.

Proximate cause not necessarily direct immediate cause. — The act of defendant must be a proximate cause of death but need not be the direct immediate cause; it is sufficient if the direct cause resulted naturally from the act of accused. State v. Fields, 1964-NMSC-230, 74 N.M. 559, 395 P.2d 908.

Proximate cause in reckless driving. — Wanton and reckless operation of an automobile which must be shown as proximate cause of a death in order to secure a conviction for involuntary manslaughter is not different from that required to be shown under former guest statute (Section 64-24-1, 1953 Comp.) before one injured may recover against driver host. State v. Hayes, 1966-NMSC-260, 77 N.M. 225, 421 P.2d 439; State v. Clarkson, 1954-NMSC-007, 58 N.M. 56, 265 P.2d 670.

Heedless or reckless disregard of others. — To establish heedlessness or reckless disregard of the right of others, a particular state of mind that comprehends evidence of an utter irresponsibility on the part of the defendant or of a conscious abandonment of any consideration for the safety of passengers must be established. State v. Hayes, 1966-NMSC-260, 77 N.M. 225, 421 P.2d 439.

Criminal negligence in driving while intoxicated. — The act of an intoxicated person in driving an automobile recklessly might be such criminal negligence as would warrant a finding of manslaughter if such operation of the automobile was the proximate cause of death. State v. Sisneros, 1938-NMSC-049, 42 N.M. 500, 82 P.2d 274.

Contributory negligence no defense. — Conduct of the driver of car struck by defendant had no application in trial for manslaughter, since it was the criminal negligence of defendant that caused the deaths of the two victims. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Evidence of reckless driving as proximate cause sufficient. — Evidence that defendant struck vehicle in which decedents were riding on a well-lighted street from the rear, that he was driving at a speed of between 60 to 80 m.p.h. in a 35 m.p.h. zone immediately prior to the collision and that he was intoxicated, established beyond any reasonable doubt that his conduct in driving was the proximate cause of the accident, and that it was so reckless, wanton and willful as to show an utter disregard for the rights of others. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Proximate cause not recklessness. — Where statements of defendant and his companion, which were introduced by the state, and not controverted, negatived any wanton or reckless operation of the car, or any high speed, and were corroborated to a great extent by a witness for the state who was a companion of the deceased at the time of the accident, the evidence did not establish that the proximate cause of the fatal striking of deceased was the wanton or reckless operation of the vehicle by the defendant. State v. Clarkson, 1954-NMSC-007, 58 N.M. 56, 265 P.2d 670.

Nor unlawfully carrying weapon. — Involuntary manslaughter was not proved by evidence that a loaded revolver fell to the floor at a public dance and discharged, killing another, since unlawful act of carrying the weapon was not proximate cause of death. State v. Nichols, 1930-NMSC-032, 34 N.M. 639, 288 P. 407.

Instruction on unlawful act improper absent proximate cause. — Unless it could be said that failure of a defendant to have a driver's license in his possession at time and place of accident was the proximate cause of death, an instruction that defendant was guilty of involuntary manslaughter if it was found he operated the automobile without a license or was under influence of intoxicating liquor would be erroneous. State v. Seward, 1942-NMSC-002, 46 N.M. 84, 121 P.2d 145.

IV. EVIDENCE.

Proof beyond reasonable doubt. — The burden of proof on the part of the state to support a charge of manslaughter by automobile beyond a reasonable doubt is clearly established in New Mexico. State v. Rice, 1954-NMSC-037, 58 N.M. 205, 269 P.2d 751.

Establishment of corpus delicti. — In homicide cases, proof of the corpus delicti is established when it is shown that the person whose death is alleged in the information is in fact dead, and that the death was criminally caused. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Proof of corpus delicti was established beyond a reasonable doubt where witness testified that his wife and son were dead at the scene of the accident, that he took the bodies to South Carolina, and was present when they were interred there. State v. Romero, 1961-NMSC-139, 69 N.M. 187, 365 P.2d 58.

Proof of victim's identity mandatory. — In this state, proof that the person killed is the same person as the one charged in the indictment to have been killed is part of the corpus delicti; failure so to prove is more than a variance between the charge and the proof, it is a failure to prove that the crime charged has been committed. State v. Vallo, 1970-NMCA-002, 81 N.M. 148, 464 P.2d 567 (ordering defendant discharged since the judgment was reversed for failure of proof rather than error in the trial proceedings).

Misrepresentation of polygraph's accuracy. — Verdict of jury finding defendant guilty of voluntary manslaughter was tainted by introduction of testimony calculated to prejudice the jury by implying that polygraph test was the ultimate in tests for truth, which testimony cast doubts upon the truth and veracity of the defendant in a manner not countenanced by the courts; it would not be allowed to stand. State v. Varos, 1961-NMSC-099, 69 N.M. 19, 363 P.2d 629, distinguished in, State v. Chavez, 1969-NMCA-109, 80 N.M. 786, 461 P.2d 919 (decided under former law).

Unrelated crimes. — Interjection of criminal offenses of narcotics pushing and heroin smuggling in the opening statement and on cross-examination, which offenses were irrelevant to the homicide for which defendant was being tried, constituted reversible error under the circumstances. State v. Garcia, 1971-NMCA-121, 83 N.M. 51, 487 P.2d 1356.

Threat inadmissible. — Threat made by defendant against narcotics agent some 14 months prior to the crime, which did not point with any reasonable certainty to deceased, a police officer, individually or as a member of a class, and about which deceased was not shown to have had any knowledge, was not admissible as bearing on defendant's actions toward deceased or to show why deceased acted as he did. State v. Garcia, 1971-NMCA-121, 83 N.M. 51, 487 P.2d 1356.

Admitting evidence of threats prejudicial error. — Since a basic contention of defense was that defendant acted in self-defense, improper admission of testimony as to a threat made by defendant was prejudicial error. State v. Garcia, 1971-NMCA-121, 83 N.M. 51, 487 P.2d 1356.

Photographs of body. — The admission into evidence in a murder trial of photographs of the decedent taken during her autopsy is proper if they are reasonably relevant to material issues in the trial, showing the identity of the victim, and the number and location of the wounds inflicted upon her body. State v. Ho'o, 1982-NMCA-158, 99 N.M. 140, 654 P.2d 1040, cert. denied, 99 N.M. 148, 655 P.2d 160.

V. JURY INSTRUCTIONS.

Criminal negligence instruction. — A showing of criminal negligence is required for a conviction of involuntary manslaughter, and it was fundamental error for the trial court to have not so instructed the jury. State v. Kirby, 1996-NMSC-069, 122 N.M. 609, 930 P.2d 144.

Where defendant's testimony provided a factual basis for an instruction on the lesser included offense of voluntary manslaughter, the trial court committed reversible error in denying defendant's requested instruction. A trial court must instruct the jury on voluntary manslaughter if the defense requests such an instruction and the instruction is warranted under the facts of the case. State v. Munoz, 1992-NMCA-004, 113 N.M. 489, 827 P.2d 1303, cert. denied, 113 N.M. 352, 826 P.2d 573.

Provocation. — Words alone, however scurrilous or insulting, will not furnish adequate provocation to require submission of a voluntary manslaughter instruction. However, if there is evidence to raise the inference that by reason of actions and circumstances the defendant was sufficiently provoked, then the jury should be given the voluntary manslaughter instruction. The substance of the informational words spoken, the meaning conveyed by those informational words, the ensuing arguments and other actions of the parties, when taken together, could amount to provocation. The defendant is entitled to an instruction on voluntary manslaughter as a lesser included offense of murder in the first degree if there is evidence to support, or tending to support, such an instruction. Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Involuntary manslaughter instruction. — Where there is sufficient evidence of both criminal negligence and accident, it is proper to grant an involuntary manslaughter instruction. State v. Skippings, 2011-NMSC-021, 150 N.M. 196, 258 P.3d 1008.

The mens rea for involuntary manslaughter is criminal negligence. — An involuntary manslaughter jury instruction is proper only when the evidence presented at trial permits the jury to find the defendant had a mental state of criminal negligence when engaging in the act causing the victim's death. State v. Henley, 2010-NMSC-039, 148 N.M. 359, 237 P.3d 103.

Evidence of excessive self-defense and accident are not a substitute for evidence of criminal negligence. — The confluence of evidence of imperfect self-defense with evidence of accidental shooting is not a substitute for evidence of the criminal negligence mental state required for an involuntary manslaughter conviction, because if the homicide is accidental, defendant acted without a criminally culpable state of mind in performing a lawful act unintentionally killing the victim, and if the homicide occurred as a result of imperfect self-defense, defendant acted intentionally in self-defense and the use of excessive force rendered the killing lawful, whereas, an involuntary manslaughter instruction is proper only where there is evidence of an unintentional killing and a mens rea of criminal negligence. State v. Henley, 2010-NMSC-039, 148 N.M. 359, 237 P.3d 103.

Evidence did not support instruction on involuntary manslaughter. — Where the evidence most favorable to defendant showed that defendant was sitting in a car; the victim approached the car and held a gun to defendant's head; defendant grabbed the gun and it discharged; defendant gained control of the gun and fired it at the victim; and defendant then drove away without realizing that the victim had been shot, the evidence failed to establish a mental state of criminal negligence, which is required to support a jury instruction on involuntary manslaughter. State v. Henley, 2010-NMSC-039, 148 N.M. 359, 237 P.3d 103.

Evidence supported instruction on involuntary manslaughter. — Where defendant shot and killed an intruder that failed to identify himself while pounding on defendant's front door at 1:30 a.m., an instruction on involuntary manslaughter was warranted because a reasonable jury could have determined that defendant was either criminally negligent because firing a gun at the door while someone was on the other side of it was a willful disregard of the rights or safety of others and endangered that unknown intruder, that defendant unintentionally killed the intruder based on defendant's theory that he fired a warning shot, or that defendant committed the lawful act of self-defense and unintentionally killed the victim without due caution or circumspection. State v. Cardenas, 2016-NMCA-042, cert. denied.

Submission of issue proper. — In prosecution on information charging first degree murder, the submission of voluntary manslaughter was not error. State v. Burrus, 1934-NMSC-036, 38 N.M. 462, 35 P.2d 285.

Question of provocation. — Generally, it is for the jury to determine whether there is sufficient provocation under an appropriate instruction on voluntary manslaughter. Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

Question of degree for jury. — Where the evidence on provocation sufficient to reduce the killing from murder to voluntary manslaughter and the evidence of self-defense was conflicting, such questions were factual ones to be resolved by the jury, and the trial court properly submitted the issues of second degree murder, voluntary manslaughter and self-defense to the jury. State v. King, 1977-NMCA-042, 90 N.M. 377, 563 P.2d 1170, overruled on other grounds, State v. Reynolds, 1982-NMSC-091, 98 N.M. 527, 650 P.2d 811.

Defendant entitled to manslaughter instruction. — Any evidence tending to bring homicide within grade of manslaughter entitled defendant to instruction on the law of manslaughter, and it was fatal error to refuse it. State v. Crosby, 1920-NMSC-037, 26 N.M. 318, 191 P. 1079.

If there is enough circumstantial evidence to raise an inference that the defendant was sufficiently provoked to kill the victim, he is entitled to an instruction on manslaughter. State v. Martinez, 1981-NMSC-016, 95 N.M. 421, 622 P.2d 1041.

Defendant is entitled to instruction on voluntary manslaughter if there is some evidence to support it. State v. Maestas, 1981-NMSC-006, 95 N.M. 335, 622 P.2d 240; State v. Marquez, 1981-NMCA-105, 96 N.M. 746, 634 P.2d 1298.

The defendant is entitled to an instruction on voluntary manslaughter as a lesser included offense of murder in the first degree if there is evidence to support, or tending to support, such an instruction. Sells v. State, 1982-NMSC-125, 98 N.M. 786, 653 P.2d 162.

When court has no duty to instruct on voluntary manslaughter. — Where neither prosecution nor defense in a murder trial requested an instruction on voluntary manslaughter, and both defendant and counsel stated that they did not desire such an instruction despite the court's explanation that there was sufficient evidence to warrant it, there was no duty for the trial court to instruct on voluntary manslaughter. State v. Najar, 1980-NMCA-033, 94 N.M. 193, 608 P.2d 169, cert. denied, 94 N.M. 628, 614 P.2d 545.

Trial court's refusal to instruct the jury on voluntary and involuntary manslaughter was not improper where defendant was guilty of transporting a gun by a convicted felon and of endangering another by handling a firearm in a negligent manner, and where there was evidence that he intentionally fired at the victim's vehicle. State v. Salazar, 1997-NMSC-044, 123 N.M. 778, 945 P.2d 996.

Attempted voluntary manslaughter instruction. — Defendant's testimony that he was scared when he believed other party was reaching for a gun provides evidence of sufficient provocation to support an attempted voluntary manslaughter instruction. State v. Jernigan, 2006-NMSC-003, 139 N.M. 1, 127 P.3d 537.

Instructions incomplete. — In homicide prosecution where one of defendant's theories was involuntary manslaughter, and record was replete with testimony that defendant was drunk while he rode around in automobile with deceased and witness, holding and handling sawed-off shotgun, court's refusal to instruct the jury that negligent use of a weapon while under the influence of intoxicant was a petty misdemeanor left jury without a guide to determine whether this was a killing while in the commission of a misdemeanor, and was reversible error. State v. Durham, 1971-NMCA-168, 83 N.M. 350, 491 P.2d 1161.

Overinclusive instruction erroneous. — Where trial court, at commencement of trial, removed the issue of manslaughter by "commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection" from the case, it was reversible error to reinject this false issue into the case by including it in the definition of involuntary manslaughter given the jury in the instructions, and instructing the jury that in order to find defendant guilty it must find that his conduct was of the kind described in the definition. State v. Salazar, 1954-NMSC-062, 58 N.M. 489, 272 P.2d 688.

Sufficiency of the evidence assessed against the elements of the crime charged. — Where defendant was charged with involuntary manslaughter, and where the jury was instructed on the essential elements of involuntary manslaughter, but the jury instruction contained an additional element not contained in UJI 14-231 NMRA, the additional element did not become an essential element under the statute, because the sufficiency of the evidence is assessed against the elements of the crime charged. Therefore, where the defendant did not dispute that he was properly charged with the statutory elements for involuntary manslaughter, that he was given a meaningful opportunity to defend himself against those charges, or that the evidence was sufficient to convict him of the statutory elements of involuntary manslaughter, defendant was properly convicted of involuntary manslaughter. State v. Carpenter, 2016-NMCA-058.

Separate instructions not necessary. — Claim that the trial court should have instructed separately on the law applicable to crime of homicide resulting from driving under the influence and resulting from reckless driving was without merit, where jury was adequately instructed as to the proof required in either circumstance. State v. Fields, 1964-NMSC-230, 74 N.M. 559, 395 P.2d 908.

Erroneous to submit unsupported issue of manslaughter. — It is error for the court to submit to the jury an issue of whether defendant was guilty of voluntary manslaughter when the facts establish either first or second degree murder, but could not support a conviction of voluntary manslaughter and, accordingly, upon acquittal of murder and conviction of voluntary manslaughter, a reversal and discharge of the accused is required. Smith v. State, 1976-NMSC-085, 89 N.M. 770, 558 P.2d 39.

It is reversible error to submit, in a murder case, the issue of voluntary manslaughter to the jury where no such issue is involved in the evidence. State v. Luttrell, 1923-NMSC-024, 28 N.M. 393, 212 P. 739; State v. Trujillo, 1921-NMSC-111, 27 N.M. 594, 203 P. 846; State v. Pruett, 1921-NMSC-110, 27 N.M. 576, 203 P. 840; State v. Lujan, 1980-NMSC-036, 94 N.M. 232, 608 P.2d 1114.

Because misleading to jury. — A party is entitled to have the jury instructed on all correct legal theories of his case which are supported by substantial evidence but in this case the court's refusal to give the involuntary manslaughter instruction was correct where to have given the requested instruction, which included acts for which there was no evidentiary support, would have introduced false issues and would have been misleading to the jury. LaBarge v. Stewart, 1972-NMCA-119, 84 N.M. 222, 501 P.2d 666, cert. denied, 84 N.M. 219, 501 P.2d 663.

No right to instruction on blood alcohol test refusal. — Nothing in N.M. Const., art. II, §§ 14 or 15, or in statutory or case law, gives defendant in prosecution for manslaughter the legal right to have jury instructed that he had right to refuse to take a blood alcohol test. State v. Fields, 1964-NMSC-230, 74 N.M. 559, 395 P.2d 908.

Standing to complain. — Where the appellant was convicted of involuntary manslaughter, he could not complain of error in court's instruction in regard to murder. State v. Carabajal, 1920-NMSC-086, 26 N.M. 384, 193 P. 406.

Review of requested instruction. — Since the instruction on voluntary manslaughter was given at defendant's request, the appeals court can refuse to review since the trial court merely instructed the jury as the defendant requested. State v. Young, 1994-NMCA-061, 117 N.M. 688, 875 P.2d 1119, cert. denied, 117 N.M. 773, 877 P.2d 579.

Omission of words "without malice". — Omission of words "without malice" in instruction in prosecution for voluntary manslaughter did not decrease amount of proof required to convict. Territory v. Trapp, 1911-NMSC-073, 16 N.M. 700, 120 P. 702, rev'd on other grounds, 225 F. 968 (8th Cir. 1915).

Instruction upon manslaughter which did not tell jury that the killing must be without malice was beneficial rather than harmful to defendant, and he could not complain thereof. State v. Carabajal, 1920-NMSC-086, 26 N.M. 384, 193 P. 406.

Failure to preserve error in instruction. — Defective instruction which failed to advise the jury that defendant's reckless and wanton operation of his automobile must have been proximate cause of victim's death would not be considered on appeal where not raised in the trial court prior to reading of instruction to jury. State v. Clarkson, 1954-NMSC-007, 58 N.M. 56, 265 P.2d 670.

Health and safety violations. — Subsection B of this section is applicable to violations of the New Mexico Occupational Health and Safety Act. 1973 Op. Att'y Gen. No. 73-32.

Willful violation of a state occupational health and safety standard which causes the death of an employee would appear to constitute a violation of Subsection B of this section. 1973 Op. Att'y Gen. No. 73-32.

Law reviews. — For article, "The Confusing Law of Criminal Intent in New Mexico," see 5 N.M.L. Rev. 63 (1974).

For symposium, "The Impact of the Equal Rights Amendment on the New Mexico Criminal Code," see 3 N.M.L. Rev. 106 (1973).

For annual survey of New Mexico law relating to criminal law, see 12 N.M.L. Rev. 229 (1982).

For article, "Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice," see 12 N.M.L. Rev. 747 (1982).

For annual survey of New Mexico law relating to criminal law, see 13 N.M.L. Rev. 323 (1983).

For article, "The Guilty But Mentally Ill Verdict and Plea in New Mexico," see 13 N.M.L. Rev. 99 (1983).

For article, "Survey of New Mexico Law, 1982-83: Criminal Law," see 14 N.M.L. Rev. 89 (1984).

For article, "Unintentional homicides caused by risk-creating conduct: Problems in distinguishing between depraved mind murder, second degree murder, involuntary manslaughter, and noncriminal homicide in New Mexico," 20 N.M.L. Rev. 55 (1990).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 40 Am. Jur. 2d Homicide §§ 54 to 70.

Wanton or reckless use of firearm without express intent to inflict injury, 5 A.L.R. 603, 23 A.L.R. 1554.

Negligent homicide as affected by negligence or other misconduct of the decedent, 67 A.L.R. 922.

Test or criterion of term "culpable negligence," "criminal negligence" or "gross negligence," appearing in statute defining or governing manslaughter, 161 A.L.R. 10.

Sleep or drowsiness of operator of automobile as affecting charge of negligent homicide, 63 A.L.R.2d 983.

Manslaughter, who other than actor is liable for, 95 A.L.R.2d 175.

Spouse's confession of adultery as affecting degree of homicide involved in killing spouse or his or her paramour, 93 A.L.R.3d 925.

Criminal liability for injury or death caused by operation of pleasure boat, 8 A.L.R.4th 886.

Single act affecting multiple victims as constituting multiple assaults or homicides, 8 A.L.R.4th 960.

Propriety of manslaughter conviction in prosecution for murder, absent proof of necessary elements of manslaughter, 19 A.L.R.4th 861.

Corporation's criminal liability for homicide, 45 A.L.R.4th 1021.

Homicide: physician's withdrawal of life supports from comatose patient, 47 A.L.R.4th 18.

40 C.J.S. Homicide §§ 69 to 92.