State v. Clevenger.

• Decision Date: 29 November 1921
• Docket Number: No. 2661.,2661.
• Citation: 202 P. 687,27 N.M. 466
• Court: New Mexico Supreme Court
• Parties: STATEv.CLEVENGER.

27 N.M. 466

202 P. 687

STATE

v.CLEVENGER.

No. 2661.

Supreme Court of New Mexico.

Nov. 29, 1921.

Syllabus by the Court.

A witness may be interrogated upon cross-examination concerning specific acts of moral misconduct and wrongdoing, to affect the credibility of such witness and the weight to be given to his or her testimony, but extrinsic or independent evidence regarding such matters is not admissible, as the cross-examiner is concluded by the answers given by the assailed witness with reference thereto.

Evidence reviewed, and held, that the prosecutrix is not corroborated as is required in a case of this character, and therefore there is not sufficient evidence to sustain the verdict.

In a case of this kind, it is error to refuse a proper tendered instruction of a cautionary character advising the jury of the nature of the case, the ease with which an accusation of this kind may be lodged and the difficulty of defending against the same, and the necessity and extent of resistance required of the prosecutrix as well as the force used to overcome the same, where no proper instruction covering the subject is contained in the court's general instruction.

Appeal from District Court, San Miguel County; Leahy, Judge.

Jerome Clevenger was convicted of rape, and he appeals. Reversed and remanded, with directions to award new trial.

A witness may be interrogated upon cross-examination concerning specific acts of moral misconduct and wrongdoing, to affect the credibility of such witness and the weight to be given to his or her testimony, but extrinsic or independent evidence regarding such matters is not admissible, as the cross-examiner is concluded by the answers given by the assailed witness with reference thereto.

O. O. Askern, of Santa Fé, and Chas. N. Higgins, of East Las Vegas, for appellant.

H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State.

BRATTON, District Judge.

Appellant was convicted of the crime of rape alleged to have been committed upon one Daisey Agned Madole, and was sentenced to serve a term of not less than five nor more than seven years in the penitentiary, from which he has perfected this appeal.

[1] During the trial Mrs. Harriet Fox became and was a very material witness in behalf of the appellant, testifying to certain facts which strongly contradicted the testimony of the prosecutrix. Upon her cross-examination, certain questions were propounded to her by which it was sought to prove that prior to her marriage to her present husband, Gradon Fox, she had lived with him in a state of adultery at Pratt, Kan., and further that prior to her said marriage, she had received congratulations from certain friends upon their supposed marriage of herself and her said husband. She denied each and all of these acts on her part. Upon rebuttal and over proper objections of the appellant, the state was permitted to prove by C. M. Gilmore and Mrs. C. M. Gilmore that said witness had lived in such state of adultery, and by J. R. Massie that she had received such congratulations. This action on the part of the trial court forms the basis of appellant's first assignment of error. We think this constituted impeachment of the witness upon collateral and immaterial matters by extrinsic and independent evidence beyond that given by the witness herself. It is the settled law in this jurisdiction that a witness may be interrogated upon cross-examination concerning specific acts of moral misconduct and specific acts of wrongdoing of such witness to affect the credibility of such witness and the weight to be given to his or her testimony, but it is equally well settled that the cross-examiner is bound by the answers given to such questions and cannot produce other and independent evidence with reference to such matters beyond that given by the assailed witness; otherwise, the number of collateral issues presented might become so numerous and so confuse the real issues as to prevent their due consideration and correct determination. The rule here applicable was stated by this court in State v. Perkins, 21 N. M. 135, 153 Pac. 258, in the following language:

“Complaint is also made of the refusal of the trial court to permit the appellants, on cross-examination of Mrs. Kubena, a very important witness for the state, to ask the witness as to specific acts of wrongdoing on her part. The same is true of the prosecuting witness, Mrs. Knapp. The law in this jurisdiction was settled by the territorial Supreme Court, in the cases of Territory v. Chaves, 8 N. M. 528, 45 Pac. 1107; Borrego v. Territory, 8 N. M. 446, 46 Pac. 349, and Territory v. De Gutum, 8 N. M. 92, 42 Pac. 48. There is a sharp conflict in the authorities upon this question. But, as the territorial Supreme Court has adopted the rule that proof of a witness' particular overt acts of wrongdoing are ordinarily relevant as impeachment evidence, but that such acts can never be shown by any evidence outside the examination of the assailed witness, and that the extent of such examination rests largely in the discretion of the trial court, we can see no good reason to depart from the rule of practice thus established.”

This rule was again announced and this case cited with approval in State v. Bailey, 198 Pac. 529. We think the court erred in permitting such rebuttal evidence, and therefore sustain this assignment of error.

[2] By four separate assignments of error, appellant challenges the verdict of the jury and urges a reversal of the case for lack of sufficient evidence to sustain the same. A decision upon these assignments requires a brief review of the evidence adduced. It appears from the record that the prosecutrix is a woman 25 years of age and weighs 130 pounds;...