State v. Rodman., 4486.

• Decision Date: 21 February 1940
• Docket Number: No. 4486.,4486.
• Citation: 44 N.M. 162,99 P.2d 711
• Parties: STATEv.RODMAN.
• Court: New Mexico Supreme Court

44 N.M. 162

99 P.2d 711

STATE

v.RODMAN.

No. 4486.

Supreme Court of New Mexico.

Feb. 21, 1940.

Appeal from District Court, Colfax County; Livingston N. Taylor, Judge.

John Rodman was convicted of statutory rape, and he appeals.

Judgment reversed, and cause remanded, with directions that a new trial be allowed.

Where prosecuting witness in statutory rape prosecution testified that named individual caught her and defendant in the act of sexual intercourse, defendant should have been permitted to produce the named individual to testify that prosecuting witness' statement was untrue.

Robert A. Morrow, of Raton, and Kiker & Sanchez and Anthony J. Albert, all of Santa Fe, for appellant.

Filo M. Sedillo, Atty. Gen., and Fred J. Federici, Asst. Atty. Gen., for appellee.

BICKLEY, Chief Justice.

On the 4th day of December, 1937, there was filed in the office of the Clerk of the District Court of Colfax County, New Mexico, in this cause an Information charging the defendant, John Rodman, with statutory rape. Upon demand of the defendant, the District Attorney filed a Bill of Particulars alleging the said act of sexual intercourse to have been perpetrated: “on or about the 2nd day of March, A. D. 1937, in a certain sand house in Van Houten, Colfax County, New Mexico, between the hours of 8:00 and 10:30 o'clock p. m.; that at said time the said Josephine Rody was a female under the age of sixteen years”.

At the commencement of the trial, the District Attorney, in his opening statement to the jury, announced that the State expected to prove, among other things: “that the defendant John Rodman some day between the 14th day of February, 1937, and the 7th day of March, 1937, took Josephine Rody into a sand house out at Van Houten and had sexual intercourse with her at a time when she was under the age of sixteen years; that one of our witnesses came along and caught them in the sand house at that time and made some remark to them, and no doubt it will appear from the evidence that other acts of sexual intercourse were had before and after that time.”

Josephine Rody, being called as a witness on behalf of the State, testified on direct examination that she was sixteen years of age on the 19th of March, 1937; that she had lived in Van Houten about ten years; that she started going around with John Rodman when she was fourteen years of age in 1935, and continued to go around with him for more than two years. In the course of her testimony she said that she had sexual intercourse with the defendant on Decoration Day in 1935; that after that occurrence she had sexual intercourse with the defendant many times, but she could not remember all the dates, but such incidents occurred once a week or once every two weeks, and more than once in a sand house in Van Houten in the night time.

At the conclusion of the testimony, both sides having rested, the defendant moved the court to require the State to elect which act of sexual intercourse on which it produced testimony it relied upon for conviction. The District Attorney responded: “In response to the motion, now comes the State and shows to the Court that in compliance with the defendant's request for a Bill of Particulars the State has already elected to rely upon the incident testified to by the prosecutrix as occurring in the sand house sometime between the 14th day of February, 1937, and the 7th day of March, 1937, when said parties were interrupted by Joe Lee.” The jury was instructed, and after its deliberation brought in a verdict of guilty in manner and form as charged in the Information. Thereafter the defendant was sentenced to serve a term of imprisonment in the state penitentiary of not less than ten and not more than twenty years.

The first point presented by appellant in support of his contention that the judgment should be reversed and which embraces several assignments of error is that the court erred in giving Instructions No. 7 and No. 12 to the jury over the objection of the defendant and in refusing defendant's requested Instruction No. 1. Instructions No. 7 and No. 12, so far as material to our review, are as follows:

“7. ***

“That such act of sexual intercourse was had by the defendant with the said Josephine Rody in a certain sand house in Van Houten, Colfax County, New Mexico, on or about the 2nd day of March, A. D. 1937, between the hours of eight and ten-thirty o'clock P. M., or at any other time within three years next preceding the date of filing the Information in this case, to-wit, December 4, 1937, but same must have been had prior to March, 19, 1937.” (Emphasis supplied)

“12. ***

“If you believe, beyond a reasonable doubt, that the defendant at the time and place charged in the Information, as supplemented by the Bill of Particulars or at any time within three years prior to the filing of the Information in this case, had sexual intercourse with the said Josephine Rody, and that at said time and place the said Josephine Rody was under the age of sixteen years, then you should find the defendant guilty in manner and form as charged in the Information, regardless of any testimony as to force and violence, or deception or any other fact.

“But, if you do not believe that said defendant did have sexual intercourse with the said Josephine Rody at the time and place charged, or at any time within three years prior to the filing of the Information in this case, or if you entertain a reasonable doubt that he did, or if you do not believe that the said Josephine Rody was under the age of sixteen years at said time, or if you entertain a reasonable doubt that she was under the age of sixteen years at said time, then by your verdict you should find the defendant not guilty.” (Emphasis supplied)

The court also gave instruction No. 13 as follows: “You are further instructed that the evidence of previous acts of sexual intercourse between the defendant and the prosecutrix, and of improper familiarity on the part of the defendant towards and with the prosecutrix, both before and after the time charged in the Information and Bill of Particulars, is received and admitted in evidence to prove the disposition of the defendant herein to have sexual intercourse with the prosecutrix, and as having a tendency to render it more probable that the act of sexual intercourse charged in the Information and Bill of Particulars was committed on or about the 2nd day of March, 1937, or at any other time within a period of three years next preceding the filing of the Information in this case, and for no other purpose.” (Emphasis supplied)

Counsel for defendant excepted to Instruction No. 7: “for the reason that it contains the words in paragraph two thereof, ‘on or at any other time within three years next preceding the date of the filing of the information in this case, to-wit, December 4, 1937.”’, and urged in connection with such exception that under the Bill of Particulars the State is confined to on or about March 2, 1937, “and the said Instruction No. 7 allows too wide a latitude of time”. After Instruction No. 12, the defendant objected to the language, “or at any time within three years prior to the filing of the Information in this case”, urging reasons similar to those in the objection to Instruction No. 7.

Appellant in this court urges other objections to Instructions No. 7 and No. 12 which the Attorney General says are not fairly embraced within the specific objections made in the trial courts. We find it unnecessary to go beyond the specific exceptions made in the court below.

[1][2] The court fell into error doubtless for the reason that a plea of not guilty raises the issue of the bar of the statute of limitations where the prosecution of the offense is subject to limitation and ordinarily it is a necessary part of instructions in criminal cases to protect the defendant from being prosecuted a second time for the same offense. However, it is not invariably true that it is necessary for the protection of the defendant that the instructions include a reference to the limitation period. For a discussion of instructions as to the time of offense generally, see 16 C.J., Criminal Law, Sec. 2364. It is there said: “Where the uncontradicted evidence shows that the offense was committed before the prosecution, the court need not charge that the evidence must show that it was committed before the filing of the complaint; and where such evidence shows that the offense was committed within the period of limitation, it is not necessary to instruct that it must have been committed within such period. But ordinarily, where time is not an essential and material element of the offense, an instruction as to the time should limit it to a date anterior to the date of the filing of the indictment or information, and within the limits included in the statute of limitations applicable to the offense charged, and should fix the time covered by the statute *** Where the prosecution elects to proceed for an offense as of a certain date, the instructions should limit the jury to finding whether the offense was committed on that date.” (Note 27) (Italics supplied) In the case of State v. Clark, 27 Idaho 48, 146 P. 1107, 1111, cited to the last sentence of the foregoing text, it was said: “The prior acts of defendant testified to would only be competent, if competent at all, for the purpose of showing familiarity between the parties, or for the purpose of corroborating the offense charged, provided it should be...