State v. Alva.

Decision Date30 July 1913
Citation134 P. 209,18 N.M. 143
PartiesSTATEv.ALVA.
CourtNew Mexico Supreme Court

OPINION TEXT STARTS HERE

Syllabus by the Court.

It is a general rule that an indictment for a statutory offense is sufficient when it charges the offense as the statute defines it.

Corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.

As a general rule, where an act is prohibited and made punishable by statute, the statute is to be construed in the light of the common law, and the existence of a criminal intent is essential.

The Legislature may forbid the doing of an act, and make its commission criminal, without regard to the intent of the doer; and if such legislative intent appears, the courts must give it effect, although the intention of the doer may have been innocent.

In a criminal prosecution, the state is not required to prove a motive for the crime, if without this the evidence is sufficient to show that the act was done by the accused.

It matters not how two words are spelled, or what their orthography is; they are “idem sonans,” within the meaning of the books, if the attentive ear finds difficulty in distinguishing them when pronounced, or common and long-continued usage has by corruption or abbreviation made them identical in pronunciation.

Pronunciation, and not spelling, is the test in the application of the rule.

If two names, spelled differently, necessarily sound alike, the court may as a matter of law pronounce them to be idem sonans; but if they do not necessarily sound alike, the question whether they are idem sonans is a question for the jury.

Exceptions to instructions must be specific.

Appeal from District Court, Colfax County; T. D. Lieb, Judge.

Ricardo Alva was convicted of statutory rape, and appeals. Affirmed.

Corroborative evidence, whether consisting of acts or admissions, must at least be of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.

J. Leahy, of Raton, for appellant.

H. S. Clancy, Asst. Atty. Gen., for the State.

HANNA, J.

The appellant was tried and convicted in the district court of Colfax county for carnally knowing and abusing and having sexual intercourse with one Refugia Senega Torres, she being a female under the age of 14 years, and brings the case into this court by appeal.

The first objection urged in this court is directed against the sufficiency of the indictment, because the word “ravish” was not contained in the indictment. It is contended by the counsel for appellant that our statute attempts to designate or set out what constitutes rape, but yet does not do so, and therefore the crime must be charged pursuant to the common law, and the absence of the word “ravish” renders the indictment fatally defective.

On the other hand, it is argued by the Attorney General that rape is not charged, but the statutory offense of sexual intercourse with a female under the age of 14 years, as defined in section 1090, C. L. 1897; the material words of the said statute being: “That a person perpetrating rape upon or an act of sexual intercourse with a female, when the female is under the age of fourteen years, * * * is punishable,” etc., and that indictment herein follows the exact language of the statute, in charging that the appellant “then and there did unlawfully and feloniously carnally know and abuse and have sexual intercourse with” the girl Refugia, she “being then and there a female under the age of fourteen years”; the contention of the Attorney General being that the words in the indictment “carnally know and abuse” are mere surplusage, and that the crime charged and proven is that of sexual intercourse with a female under the age of 14 years.

[1] We agree with this contention of the Attorney General. It is a general rule that an indictment for a statutory offense is sufficient when it charges the offense as the statute defines it. People v. Flaherty, 79 Hun, 48, 29 N. Y. Supp. 642; Bishop, Stat. Crimes, § 486; 33 Cyc. 1444.

Appellant in his brief lays greatest stress upon an alleged failure of proof as to sexual intercourse and sexual penetration. While it is true that if certain questions addressed to the child, with their answers, are alone considered, there might be some doubt as to the sufficiency of proof in the respects pointed out; but when we examine the entire record for evidence pertaining to these questions, there can be no doubt as to the sufficiency of proof, both as to sexual intercourse and sexual penetration. While it is true she testified that she did not know what the word “intercourse” meant, yet the facts testified to by her could have left no doubt, in the minds of the jurors, that an act of sexual intercourse had taken place between herself and the accused.

The Supreme Court of California in the case of People v. Howard, 143 Cal. 316, 76 Pac. 1116, in construing a statute somewhat similar to ours, said: “Sexual penetration is necessary to constitute the crime of rape. It is therefore clear that, to sustain the charge, the prosecution must have proved sexual intercourse, which includes and means sexual penetration. * * * In some cases the facts and circumstances are such that penetration may be inferred therefrom.”

We are of the opinion that the evidence in this case leaves nothing to be inferred; but, admitting that no direct proof appears, the fact could readily, and properly, be inferred from the evidence introduced. We do not deem it necessary to set out this evidence in detail; but, aside from the testimony of the child, the evidence of the witness Dudley as to the admission of the accused, at the time of his arrest, is convincing, and leaves no doubt in our minds as to the commission of the offense charged. We are fully convinced that the evidence is sufficient to prove all the essential elements of the crime charged.

[2] It is further contended that the testimony of the child was not corroborated. We cannot agree with this. The witness Dudley certainly corroborated the testimony of the child in all essential facts and fully conforms to the rule that corroborative evidence, whether consisting of acts or admissions, must be at least of such a character and quality as tends to prove the guilt of the accused by connecting him with the crime. Underhill on Criminal Evidence, § 74.

The appellant claims to have been prejudiced by several rulings by the court upon the admission or rejection of evidence. An examination of the record as to these matters discloses no ground supporting such claims, and it will be useless to discuss these matters in detail. With respect to the admission of the evidence of Dudley concerning the confession of the accused, and the objection that it does not appear to have been voluntary, we have only to say that no objection was raised by appellant upon this ground at the trial, and we cannot now entertain the objection.

Counsel for appellant contends that defendant was prejudiced by the ruling of the court in not permitting the witness Virginia Zunega to answer the following question: “Q. Was the complaining witness ever called or known by any name except Refugia Zuniga?” The witness had previously testified that the complaining witness was never called by any name except Refugia Zuniga, but had not testified that she was not known by any other name. If she was not called by any other name, she could hardly have been known by any other name, and no error was committed in excluding the answer to the question referred to.

It is further urged by appellant that he was prejudiced by the ruling of the court prohibiting the complaining witness from writing or spelling her name for the purpose of showing a variance. We cannot find that the defendant was prejudiced in...

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14 cases
  • Reese v. State, 16658
    • United States
    • New Mexico Supreme Court of New Mexico
    • 1 Septiembre 1987
    ...the defense of ignorance or mistake of fact under the circumstances of this case, as distinguished from others, e.g., State v. Alva, 18 N.M. 143, 134 P. 209 (1913) (sexual intercourse with a female child under age). Aside from constitutional grounds, it was essential that the state prove th......
  • State v. Shedoudy., 4600.
    • United States
    • New Mexico Supreme Court of New Mexico
    • 9 Septiembre 1941
    ...the offense created, it is sufficient in an indictment or information, to charge the offense in the language of the statute. State v. Alva, 18 N.M. 143, 134 P. 209. But where the letter of the statute is broader than the intent of the legislature, the information must be so drawn as to effe......
  • State v. Shedoudy
    • United States
    • New Mexico Supreme Court of New Mexico
    • 9 Septiembre 1941
    ...offense created, it is sufficient in an indictment or information, to charge the offense in the language of the statute. State v. Alva, 18 N.M. 143, 134 P. 209. But where the letter of the statute is broader than the intent of the legislature, the information must be so drawn as to effect t......
  • State v. Craig
    • United States
    • New Mexico Supreme Court of New Mexico
    • 5 Junio 1962
    ...The State argues that under the language of the statute a specific intent is not required and directs our attention to State v. Alva, 18 N.M. 143, 151, 134 P. 209, wherein it is said: 'In connection with the general rule, however, it must be borne in mind that the Legislature may forbid the......
  • Request a trial to view additional results

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