State v. Phipps.
| Decision Date | 21 October 1943 |
| Docket Number | No. 4783.,4783. |
| Citation | 47 N.M. 316,142 P.2d 550 |
| Parties | STATEv.PHIPPS. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Eddy County; James B. McGhee, Judge.
W. B. Phipps was convicted of having a female minor in his possession for the evil purpose of sexual intercourse, and he appeals.
Affirmed.
In prosecution for having female minor in accused's possession for purpose of sexual intercourse, where evidence justifies conclusion by jury that sexual intercourse took place, the Supreme Court, on appeal from conviction, cannot say that such conclusion is erroneous, though it involves rejection of truth of some of state's evidence, such as prosecutrix' testimony that such intercourse never took place. 1941 Comp. § 41-3909.
Caswell S. Neal, of Carlsbad, and O. O. Askren, of Roswell, for appellant.
Edward P. Chase, Atty. Gen., and Harry L. Bigbee, Asst. Atty. Gen., for appellee.
Appellant was convicted of violating 1941 Comp., Sec. 41-3909, pursuant to an information which reads as follows: “That W. B. Phipps on the 22nd day of August, 1942, A.D., in the County of Eddy, State of New Mexico, did unlawfully commit the crime of having a female minor, one Mary Lois Stephens, in his possession for evil purposes, to-wit: sexual intercourse, the said Mary Lois Stephens being then and there under the care and control of her parents, J. T. Stephens.”
[1] At the close of the State's case in chief, appellant moved for a directed verdict. This motion was denied by the trial court and appellant assigns the following error: “The court erred in refusing to direct a verdict of not guilty for the reason that evidence introduced on the part of the State is insufficient to sustain a conviction of the offense charged to-wit: possession of a female minor for evil purposes to-wit, sexual intercourse, but conclusively shows possession for a purpose other than sexual intercourse as charged in the information.”
A review of the evidence will not be necessary as the error, in overruling appellant's motion, if any, was waived by the introduction of evidence on behalf of appellant and a failure to renew the motion at the close of the whole case. State v. Analla et al., 34 N.M. 22, 276 P. 291; State v. Stewart, 34 N.M. 65, 277 P. 22; State v. Kimbell et al., 35 N.M. 101, 290 P. 792; State v. White et al., 37 N.M. 121, 19 P.2d 192; State v. Turney, 41 N.M. 150, 65 P.2d 869; and State v. Vargas, 42 N.M. 1, 74 P.2d 62.
The denial of appellant's motion for a directed verdict is the sole error assigned. The application of the foregoing rule would be sufficient to dispose of this appeal, but since the State does not invoke it, and both parties seek a review of the question of the sufficiency of the evidence to sustain a conviction of the offense charged, we proceed to a consideration of that question. The gist of appellant's objection to the judgment of conviction is that it rests on a verdict without adequate proof of the exact charge brought against him.
[2] The point urged by the appellant does not seek so much a review of the evidence as it does an application of the statute to the undisputed facts in the light of the charge made. The charge was that the appellant had the prosecuting witness, a female minor, in his possession for evil purposes, to-wit: sexual intercourse. Appellant argues that since the prosecuting witness, herself, testified that, although numerous opportunities existed, sexual intercourse never took place, that this accepted fact removes room for any inference that the intent and purpose of the appellant was to have sexual intercourse with her as charged in the information.
In this, appellant is in error. The gravamen of the offense, as charged, is the evil purpose and intent of the possession of the female minor. The offense, if committed at all, is complete the moment the accused having the female minor in his possession forms the evil intent and purpose of sexual intercourse, whether such sexual intercourse ever takes place or not. Subsequent acts of sexual intercourse are only important as affording the most reliable means of forming a correct conclusion with the respect to the original purpose and intention of the appellant. Proof that sexual intercourse actually took place is not necessary in order to sustain a conviction under the statute. State v. Tucker, 72 Kan. 481, 84 P. 126; State v. Knost, 207 Mo. 18, 105 S.W. 616; State v. Bobbst, 131 Mo. 328, 32 S.W. 1149; State v. Gibson, 111 Mo. 92, 19 S.W. 980; Slocum v. People, 90 Ill. 274, 282; Henderson v. People, 124 Ill. 607, 614. 17 N.E. 68, 7 Am.St.Rep. 391; State v. Bussey, 58 Kan. 679, 50 P....
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State v. Browder
...a directed verdict at the close of the case-in-chief was denied and not renewed at the close of all the evidence. See State v. Phipps, 47 N.M. 316, 142 P.2d 550 (1943); State v. Vargas, 42 N.M. 1, 74 P.2d 62 (1937). We do not reach this procedural problem; our review is on the basis of fund......
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State v. Neville.
...important upon the question of his intent and purpose, “than the failure to show subsequent acts of sexual intercourse.” State v. Phipps, 47 N.M. 316, 142 P.2d 550. [5][6] It is not correct to say, as appellant does here, that had he entertained the intent essential to a conviction of the o......
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State v. Sandoval
...of the State's case in chief it was waived by the subsequent introduction of evidence and failure to renew the motion. State v. Phipps, 47 N.M. 316, 142 P.2d 550 (1943); State v. Hunt, (Ct.App.) 83 N.M. 546, 494 P.2d 624, Defendant's implied contention of fundamental error is without merit.......