State v. Ancheta.

• Decision Date: 09 January 1915
• Docket Number: No. 1678.,1678.
• Citation: 145 P. 1086,20 N.M. 19
• Court: New Mexico Supreme Court
• Parties: STATEv.ANCHETA.

20 N.M. 19

145 P. 1086

STATE

v.ANCHETA.

No. 1678.

Supreme Court of New Mexico.

Jan. 9, 1915.

Syllabus by the Court.

Where there is substantial evidence to support a verdict, the appellate court will not disturb it.

In both civil and criminal causes, a party's fraud in the preparation or presentation of his case, such as the suppression or attempt to suppress evidence by the bribery of witnesses, can be shown against him as a circumstance tending to prove that his cause lacks honesty and truth.

Evidence of the identity of the accused with the person who committed the theft, derived from a comparison of the foot tracks, is admissible.

Errors must not only appear upon the face of the record, but must appear to be probably prejudicial.

An order of the district court denying the motion for a change of venue will not be reversed by this court, unless the record shows an abuse of discretion, which, in this case, it does not.

Appeal from District Court, Valencia County; M. C. Mechem, Judge.

Amado Ancheta was convicted of rape, and appeals. Affirmed.

The witnesses produced in support of the application for change of venue should be examined in court, as to knowledge and interest, and, if the presiding judge is of the opinion that their testimony does not establish the grounds of the motion, he should deny it.

On September 1, 1913, the grand jury for the county of Valencia returned an indictment against the appellant charging him, in the first count, with having carnally known and ravished Maria Inéz Lucero, a female under the age of 14 years, and, in the second count, with attempting to rape said Maria Inéz Lucero. On September 8, 1913, an application for change of venue was made by appellant and denied. Thereafter the trial was begun, and on September 9th the jury found the appellant guilty of the charge in the first count. The appellant was thereafter sentenced to 20 years in the penitentiary, and from such verdict and judgment of the court he appeals.

Because of an attack upon the sufficiency of the evidence, it is necessary to make a more complete statement of the facts than ordinarily would be necessary.

On the night of July 13, 1913, Filimonia Lucero, the mother of Maria Inéz Lucero, the girl upon whom the assault was made, her husband and two other children, aged one and nine years, respectively, retired to their one bed, which was made on the ground outside of the residence of the family, in the town of Cuerva, N. M. The nine year old daughter slept on the outside; next to her slept Maria Inéz, the little girl upon whom the assault was committed; the mother lay next to Maria Inéz; next to the mother lay the one year old daughter; and next to her lay the father. About 3 o'clock in the morning of the 14th of July, the mother reached over to where Maria Inéz had lain during the early part of the night, for the purpose of seeing that the girl was properly covered. The mother discovered that the girl was not in bed, but absent. Later, in the early morning, the six year old girl being still absent, friends and relatives were told of the incident, and a search for the missing girl was begun. This was about sunrise of that morning. Miguel Molina and José Maria Romero were summoned to the Lucero house, and they found large barefoot tracks leading from close to the house. They followed these tracks for some distance. Then the tracks took the appearance of shoe tracks. The witnesses stated that the person whom they were tracking had put on his shoes. The tracks led to some further distance and to a cedar tree. Under the tree the ground looked like it had been freely trampled, and a little pool of blood was seen there by the witnesses. The larger tracks led eastward from the cedar tree, and the smaller tracks led towards the north. Molina and Romero then took up the smaller tracks and after going a short distance they came upon Maria Inéz Lucero, the missing girl, standing mute. The men took her in their arms and carried her to the Lucero house, the home of the child. When they arrived there the girl was in an unconscious condition. When found she was wearing only a short skirt. When put to bed the night previous she had other clothes on her body, including the little skirt. The girl was handed to the mother, who placed her in bed, and thereafter summoned a physician. The physician, and others found blood on the girl's legs and clothing. Blood was also flowing from the vagina. The doctor examined the child, and found that a penetration of the vagina had been effected, and that the hymen was ruptured. Ten days later the physician found an unnatural discharge of matter from the vagina, which indicated that the child had “probably” an infection of gonorrhea, although the doctor was not sure that gonorrhea had set in, for he made no microscopical examination of the discharge to ascertain whether the gonococcus was present therein. When the little girl went to bed on the night of the 13th, she was in perfect health. All the tracks were in sandy soil, except at long intervals when a track or two was seen upon the rocks.

About 6 o'clock of the morning of the 14th of July, 1913, the appellant came to the house of a man named Sarracino, where José Carrillo was working, and called in a loud voice to another man working there. The appellant came close to José Carrillo and the latter saw two spots of blood upon the white shirt then worn by appellant. Between 12 and 1 o'clock of the night of July 13th, the appellant was seen within 200 yards of the house of Lucero.

Teodoro Bautista, a Laguna Indian, followed the foot tracks leading from the cedar tree eastward, and found that they then led to the stable of Narciso, then through a little alley into the road, and then to the house of this appellant. The Indian then went in search of the appellant, and later found him. Seeing blood spots on the shirt of the appellant, the Indian led the appellant close to a church, and there endeavored to pull the appellant's shirt up to find more blood, but this action was resisted. The appellent all this time was nervous, and his “chin trembled.” The Indian then compared the new tracks made by the appellant in his walk to the church with those leading off from the cedar tree, and found them to be the same. The day following this incident the appellant had a conversation with the Indian, wherein he said to the Indian:

“Here, brother, friend, you are my friend; if you don't tell the truth there in court, because you tracked me, I will pay you $10. Please do me the favor. When I get home, I will pay you more money; and now tell me how much you want.”

A week previous to the date of the trial the appellant offered Miguel Molina, one of the witnesses for the state, $100 if he “would be in his favor.”

The testimony, on the other hand, for the appellant was in the nature of an alibi. He testified that he was at a show until 9 or 10 o'clock, and that he went from there to the saloon of one D'Armond; that he was there with some other boys, and that he went from there to the house of Mrs. Baca, where he was stopping, and from there to the house of his uncle, Teofilo Sarracino; that he got up about 7 or 8 o'clock the next morning, and ate breakfast at his uncle's house; that he did not see the Indian, Bautista, until after he started to town that morning. The boys who were with him, Rodriquez Baca and Margarito Baca corroborated his story up to the time they left him between 11 and 12 o'clock, and the uncle testified that he saw him in the house in bed about 1 o'clock in the morning, and that he saw him again when he got up in the morning about 7 or half past 7 o'clock, and that he ate breakfast with him; and it is in evidence that he had previously borne a good character, and had never been in trouble before. He was a married man, and had a wife and two children, but was not living with his family.

Edward A. Mann, of Albuquerque, for appellant.

Ira L. Grimshaw, Asst. Atty. Gen., for the State.

HANNA, J. (after stating the facts as above).

Although numerous errors were assigned, most of them have been waived, and we will consider those presented for our consideration in the order in which they are referred to in appellant's brief; the first error being that there is not sufficient proof to sustain a verdict of guilty.

[1] This assignment presents a double aspect, as argued by appellant; his first contention being that there is a total failure of proof as to practically all the material allegations of the indictment. Because of this assignment we have set out the facts at length, and it is our conclusion, after reading the evidence as contained in the record as a whole, that there was substantial evidence, if believed by the jury, to support the verdict. It has been held on numerous occasions, not only by this court, but by the territorial Supreme Court, that where there is substantial evidence to support a verdict the appellate court will not disturb it. State v. Padilla, 139 Pac. 143; State v. Roberts, 138 Pac. 208; State v. Eaker, 17 N. M. 479, 131 Pac. 489.

[2] The second aspect of this assignment, as presented by appellant, is based upon the alleged inadmissibility of the evidence of the two witnesses, Bautista and Molina, which was to the effect that appellant had attempted to bribe them. It is contended that this evidence, having gone to the jury over appellant's objection, undoubtedly tending to prejudice the jury against him, nevertheless did not tend to prove the offense charged against him, except as to a portion of the evidence of one of the witnesses which went to show that this witness had seen blood upon the shirt of the defendant. Further objection was made to the evidence of the witness Bautista on the ground that there was no attempt to qualify him as an expert witness, until after his testimony in chief, and upon the suggestion of the court. Upon the first phase of this question--namely, the evidence going to...