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State v. Young4/20/1994
n other jurisdictions appears to be that on retrial the jury should (1) be instructed on both second degree murder and voluntary manslaughter but (2) be told that if it finds the defendant guilty of either offense, it should render a verdict only of voluntary manslaughter. See Milton Roberts, Annotation, Propriety of Manslaughter Conviction in Prosecution for Murder, Absent Proof of Necessary Elements of Manslaughter, 19 A.L.R. 4th 861, §§ 11-12 (1983). This view finds support in the analysis of voluntary manslaughter in a thoughtful article by Dean Romero: Leo M. Romero, Sufficiency of Provocation for Voluntary Manslaughter in New Mexico: Problems in Theory and Practice, 12 N.M. L. Rev. 747, 747-61, 788-89 (1982). See also Charles W. Daniels & Teresa E. Storch, Criminal Law, 14 N.M. L. Rev. 89, 93-96 (1984).
HARRIS L. HARTZ, Judge
SP CONCURRENCE FOOTNOTES
1 It is not clear to me whether Defendant was acquitted of second degree murder. If he was not acquitted, he can be retried on that charge. The jury would then be instructed as at the original trial, so there would be no inconsistency in the instructions at the two trials.
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