State v. Dodson

• Decision Date: 07 June 1960
• Docket Number: No. 6635,6635
• Citation: 353 P.2d 364,67 N.M. 146,1960 NMSC 51
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Erma DODSON, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 364

353 P.2d 364

67 N.M. 146

STATE of New Mexico, Plaintiff-Appellee, v. Erma DODSON, Defendant-Appellant.

No. 6635.

Supreme Court of New Mexico.

June 7, 1960.

Rehearing Denied July 11, 1960.

James Sidwell, Albuquerque, for appellant.

Hilton A. Dickson, Jr., Atty. Gen., Thomas O. Olson, Asst. Atty. Gen., Boston E. Witt, Ass't. Atty. Gen., for appellee.

McGHEE, Chief Justice.

Defendant was convicted below of contributing to the delinquency of a minor by engaging in certain illicit sex practices with said minor.

The crucial point raised in this appeal is the refusal of the trial court to give a cautionary instruction to the jury. The requested instruction states:

'From the nature of a case such as this, the juvenile (X) and the defendant, if she was in the company of (X) at the time, usually are the only witnesses of their conduct. Therefore, I charge you that the law requires that you examine the testimony of (X) as to what occurred on the occasions she was with the defendant, with caution.' ((X) substituted by us for name of prosecutrix.)

The testimony of the prosecutrix concerning the conduct complained of was uncorroborated and met directly with a denial by defendant who took the stand in her own behalf. There is no question that the evidence, if believed by the jury, is sufficient to sustain the conviction. Therefore, we are faced squarely with the issue of whether the failure to give the requested cautionary instruction is prejudicial error.

We have held that in a prosecution for rape, where the evidence is conflicting and uncorroborated as to resistance and force, the trial court should caution the jury, and failure to do so is reversible error. State v. Clevenger, 1921, 27 N.M. 466, 202 P. 687. The reasons for giving such an instruction are no less applicable here than there. The ease with which the charge may be made and the comparative difficulty in defending against it makes the field of sexual crimes one in which the court, under our system of jurisprudence, must do its utmost to insure that the issue goes to the jury in proper context.

In its brief, the State cites State v. Rutledge, 1922, 63 Utah 546, 227 P. 479, in support of its position that a cautionary instruction is not necessary. Our decision in the Clevenger case is irreconcilable with the case and we are thereby precluded from considering it as authority. The State also cites Strand v. State, 1927, 36 Wyo. 78, 252 P. 1030, as standing for the proposition that the giving or refusing of such instruction is discretionary with the trial court, and refusing the instruction is not prejudicial error when substantial evidence is found to support the verdict. We disagree with the State's analysis of that case. The court was careful to point out that other instructions were given which would fairly apprise the jury of its duty to proceed with caution. This decision was explained in a later opinion where, after admonishing State's counsel for taking a position not unlike the one taken by the State here, the court stated in State v. Koch, 1948, 64 Wyo. 175, 189 P.2d 162, 168:

'* * * In other words, the effect of the opinion is that when the testimony of the prosecutrix is not corroborated a cautionary instruction should ordinarily be given, unless in some manner it appears that the jury had a full realization of the duty to view the testimony of the prosecutrix with caution.'

We hold that failure to give a cautionary instruction was prejudicial error requiring reversal.

Since other errors alleged in defendant's brief are likely to recur on retrial they will be reviewed here.

Defendant alleges that the admission over proper objection of evidence of other acts with the prosecutrix similar in nature to those charged but occurring at times not covered in the indictment was error. It is significant to note here that the element of surprise in having to rebut accusations for which defendant had not adequate time to prepare is not present in this case. The record does not show that a continuance was sought.

We stated in State v. Bassett, 1921, 26 N.M. 476, 478, 479, 194 P. 867, as follows:

'The general rule is that when a man is put on trial for one offense he is to be convicted, if at all, by evidence which shows that he is guilty of that offense alone, and that, under ordinary circumstances, proof of his guilt of other offenses must be excluded. (Citing authority). The reasons which underlie this rule are apparent and require no elucidation. The...