Torres v. State

(specially concurring).

With all respect due to my learned brethren, I find myself unable to concur in the ruling that the court erred in not submitting instructions on murder in the second degree. When it became the duty of the trial court to make the momentous decision as to whether instructions on murder in the second degree ■would result in the discharge of the defendr ant (see State v. Reed et al., 39 N. M. 44, 39 P.(2d) 1005), there had been presented but one theory — threat followed by assassination —and the threat had neither been explained nor denied.

“Where the existence of deliberate…