State v. Armijo, 6379

• Decision Date: 05 September 1958
• Docket Number: No. 6379,6379
• Citation: 1958 NMSC 108,64 N.M. 431,329 P.2d 785
• Parties: STATE of New Mexico, Appellee, v. Dionicio J. ARMIJO, Appellant.
• Court: New Mexico Supreme Court

Page 785

329 P.2d 785

64 N.M. 431

STATE of New Mexico, Appellee, v. Dionicio J. ARMIJO, Appellant.

No. 6379.

Supreme Court of New Mexico.

Sept. 5, 1958.

Mears & Mears, J. Fred Boone, Portales, for appellant.

Fred M. Standley, Atty. Gen., Hilton A. Dickson, Jr., and Robert F. Pyatt, Asst. Attys. Gen., for appellee.

SADLER, Justice.

The defendant as an appellant before this Court complains of a sentence imposed upon him by the district court of Roosevelt County, following his conviction of the crime of statutory rape upon a young girl, fourteen (14) years of age.

He first bases error on the refusal of the trial court to permit cross-examination by him of the prosecuting witness concerning prior acts of intercourse with other men. We see no error in this refusal. The offense charged was statutory rape as to which the previous chastity of the prosecuting witness ordinarily is immaterial. 44 Am.Jur. 959; 52 C.J. 1083, Sec. 111; 75 C.J.S. Rape Sec. 63, p. 537; State v. Edwards, 33 N.M. 51, 261 P. 806; State v. Morrow, 158 Or. 412, 75 P.2d 737, 76 P.2d 971; Struna v. People, 121 Colo. 348, 215 P.2d 905. See, also, annotation, 65 A.L.R. 410, 425.

In State v. Morrow, supra, the court spoke on the subject discussed, as follows [158 Or. 412, 75 P.2d 745]:

'From State v. McKiel, 122 Or. 504, 259 P. 917, 918, we quote: 'Since the girl was under the age of consent and force is not an essential element of the crime, it is clear that this line of inquiry was not proper and had no relevancy to the issue. In some jurisdictions it is permitted, as affecting the credibility of the witness, but not so in this state. State v. Ogden, 39 Or. 195, 65 P. 449. The girl is not on trial, and it would be unfair to allow evidence of other specific acts of unchastity where there would be no opportunity to make any defense against such accusations.'

'In an annotation in 65 A.L.R. at page 425, the editor cites the decision just mentioned, and states: 'The courts of a majority of the jurisdictions accede to the view that the prosecuting witness, in a prosecution for statutory rape, cannot be cross-examined as to prior acts of sexual morality or levity of conduct on her part."

In State v. Edwards, supra, we sustained an exception to the aforesaid rule, where pregnancy of the prosecuting witness was shown and testimony that defendant was the father of her child was in evidence. There the testimony of prior sexual acts was held pertinent on rebuttal as tending to show 'another might have been the cause of such condition,' where limited to that purpose. [33 N.M. 51, 261 P. 807.] The court found no occasion, however, to find fault with the general rule as stated in the texts above cited and as well in the annotation in A.L.R., cited, supra.

Counsel for defendant seek to draw some comfort for their position by citing State v. Cruz, 34 N.M. 507, 285 P. 500. But it fails to give the needed support. The cases are quite different in their facts. There the prosecutrix was 26 years of age, had never been married and was asked on cross-examination whether she had given birth to a child some time before the offense charged against defendant. The case was brought squarely within the doctrine that the right to impeach on cross-examination by proof of specific acts of misconduct could not be denied, citing many New Mexico cases.

Here the sole reason advanced by defendant's counsel for admissibility of an answer to the inquiry whether the prosecuting witness had ever had intercourse prior to the act charged against him was on the issue of penetration. Except as tending to prove in its broader aspect that consent to the act charged had actually been given, an immaterial fact in statutory rape, if the trial court had permitted the inquiry, it would have proved quite pointless. The prosecutrix had already testified, unequivocally, to the fact of penetration and it must have seemed to the court without reason to permit a breach of the doctrine against proof of prior unchaste acts, if any such there were, upon the pretense of testing credibility on an issue about which there was no genuine controversy.

Next, it is complained by counsel for defendant that the court erred in declining to permit them to take the testimony of the defendant on the voluntary character of the confessions, out of the presence of the jury, while conducting the preliminary inquiry into the facts surrounding the procural of the confession for the purpose of testing its admissibility in evidence. In this contention, we think the defendant has pointed out error in the sentence imposed upon him calling for a reversal.

After a long and tiresome colloquy between the trial judge and counsel for defense, most of which took place out of the presence of the jury, and after the State, in the presence of the jury, already had established what may be taken as a prima facie case, the following tender was made on behalf of the defendant, to-wit:

'Mr. Boone: Comes now the defendant and with the respect to the Court's ruling admitting into evidence these Exhibits, the Defendant will offer to prove that he was arrested on the night of July the 4th, 1957, and at the time he was arrested he was very intoxicated, he was told he was arrested for being drunk, that on the next morning, which would have been July the 5th, he was brought down into the office of either the District Attorney or the Sheriff and he was asked by the District Attorney or the Sheriff are you guilty or not guilty, he, thinking they had reference to the charge of drunkenness, said I am guilty, after which he was tendered a written statement which had not been explained to him theretofore by either the Sheriff or the District Attorney and told to sign. He would further offer to prove that at the time he signed this so called statement he was under the impression that he was pleading guilty or was stating that he was guilty of the offense of being drunk. He would further state that at no time was he advised of the charges of raping (name deleted) and that he never intended and never did admit guilt as to that offense, all of which the defendant would offer to prove with respect to the voluntary or involuntary nature of these statements.'

The trial judge made his ruling in the following words:

'The Court: Again, the tender is overruled, he may do so on his case in chief if he wishes.

'Mr. Boone: Exception.'

We have given to this fundamental question the consideration its importance demands and must announce as our deliberate judgment that the defendant possesses such right, if claimed.

In State v. Armijo, 18 N.M. 262, 135 P. 555, 556, we came so near deciding the exact question here presented, that it may not safely be disregarded as persuasive authority on the issue. True enough, in a short opinion on rehearing in the Armijo case, the court renewed its holding there was no error in admitting the confession because of the general nature of defendant's objection, nothing was said weakening in any way its pronouncement of the proper procedure at the preliminary hearing out of the presence of the jury. We there had this to say touching that matter:

'We are not unmindful of the fact that when the witness, Matta, the Justice of the Peace, was asked what the appellant said before the coroner's jury, objection was made, by counsel for appellant, that it should first be determined by the court whether the statement was voluntary. The witness had previously testified that he had offered no inducement or promise in connection with the statement and that the same was voluntary. The district court ruled that the statement, up to that time, appeared to be voluntary, and permitted the witness to testify concerning the statement. The appellant, at this time, made no offer to show that the statement was involuntary, and we think it was incumbent upon him to do so before he can predicate error upon the action of the trial judge in admitting the testimony in the light of his information at that time.

'The rule, in this regard, as enunciated by Mr. Bishop, in vol. 1, New Crim.Proc., Sec. 1220, meets with our full approval, and the believe it to be decisive upon the question. It is as follows:

"Sec. 1220. The judge, * * * and as a preliminary without which no confession can go to a jury, determines, on testimony laid before him, both for and against, whether or not to admit the particular one; the burden on the prosecuting power that tenders the confession. His decision covers, besides the law, the fact as to which it is not ordinarily to be disturbed or reviewed, and the jury can pass merely on the effect of the confession in evidence.'

'We agree with this rule as laid down by Mr. Bishop and while counsel for appellant was correct in stating that it was the duty of the trial court to pass upon the voluntary character of the confession before submitting it to the jury, yet, as stated by the trial court,...