State v. Rowell

Decision Date07 November 1966
Docket NumberNo. 8008,8008
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Mrs. John W. ROWELL, Defendant-Appellant.
CourtNew Mexico Supreme Court
OPINION

MOISE, Justice.

Appellant was charged with uttering a forged check in Raton, New Mexico, on May 9, 1963. Her defense was an alibi, based upon the testimony of two disinterested witnesses and her mother to the effect that Mrs. Rowell was not in Raton the day the crime was committed. Toward the end of appellant's case, the district attorney, in cross-examining appellant's mother and after having established by her that defendant's given name was Carol Madelaine, asked the following question:

'I will ask you, Mrs. Stewart, whether or not you know that Carol Madelaine Rowell was on the ninth day of May, 1963, was convicted of forgery in Dumas, Texas?'

An objection to the question and a motion for mistrial was promptly made. The trial judge denied the motion for a mistrial, but sustained the objection to the question and admonished the jury not to consider it in arriving at a verdict.

Appellant did not take the witness stand. A verdict of guilty was returned by the jury, and this appeal is from the judgment and sentence based thereon.

It is appellant's position that the question was not only improper, but that asking it in the form that was done would certainly tend to prejudice the jury, and that no attempts to admonish the jury to forget the question could possibly erase the effects. We agree.

With certain qualifications, based upon reason and not here pertinent, it is generally held that proof of convictions of other and separate criminal offenses by the defendant is not admissible and that it is prejudicial error to admit such proof. We have so held in State v. Snyder, 28 N.M. 388, 212 P. 736; State v. Bassett, 26 N.M. 476, 477, 194 P. 867, and, more recently, in State v. Nelson, 65 N.M. 403, 33, P.2d 301. The reason for the rule is stated thus in 1 Wharton's criminal Evidence (12th ed.) 497, § 232:

'* * * Several reasons are given for the exclusion of evidence of independent, disconnected crimes. When a person is put on trial for an offense, he is to be convicted, if at all, by evidence which shows that he is guilty of that offense, and not by evidence showing him guilty of other offenses wholly unconnected with the one charged, and the evidence on a trial should be confined to the question in issue. A man cannot be convicted of crime because he is a bad man generally or has committed other crimes for which he has not been punished, but proof of other crimes has a tendency to prejudice the minds of the triers against the accused and to predispose them to a belief in his guilt. In addition, there is the grave danger that the jury may be confused by the evidence relating to the distinct crime.'

In the instant case, we are not concerned with the introduction of such evidence, but with the mere propounding of the question. In our view the same considerations which dictate exclusion of the evidence, as stated above, compel a similar holding upon the asking of a question such as was here propounded, under the circumstances here present. This is true when the question of prior convictions is asked a defendant himself, if the prosecutor is not proceeding in good faith or is not in position to refute a denial. See State v. Williams, 76 N.M. 578, 417 P.2d 62; 1 Wharton's Criminal Evidence (12th Ed.) 311, § 160. How much more serious it is to ask a question such as was asked here of a witness other than the defendant. Even if the answer had been in the negative it would mean only that she did not know of the fact, not that defendant had not been convicted. The question here objected to could have no possible place in the trial. The purpose could have been nothing other than to arouse the prejudices of the jury against appellant. Courts, including ours, have been most vociferous in protecting persons accused of crime from the results of such interrogation. See State v. Cummings, 57 N.M. 36, 39, 253 P.2d 321. We quote from People v. Wells, 100 Cal. 459, 34 P. 1078, where a comparable question concerning prior forgeries was asked of a prosecution witness in a forgery trial:

'* * * What, then, was its purpose? Clearly, to take an unfair advantage of appellant by intimating to the jury something that was either not true, or not capable of being proven in the manner attempted. And the wrong was not remedied because the court sustained an objection to the question. Counsel undoubtedly knew beforehand that the objection would be sustained. * * * The first three of these questions are important mainly as leading up to the last one, the asking of which was utterly inexcusable and reprehensible. It would be an impeachment of the legal learning of the counsel for the people to intimate that he did not know the question to be improper, and wholly unjustifiable. Its only purpose, therefore, was to get before the jury a statement, in the guise of a question, that would prejudice them against appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider. The prosecuting attorney may well be assumed to be a man of fair standing before the jury, and they may well have thought that he would not have asked the question unless he could have proved what it intimated if he had been allowed to do so. He said plainly to the jury what Hamlet did not want his friends to say: 'As, 'well we know;' or, 'we could, and if we would;' or, 'if we list to speak;' or, 'there be, and if there might." This was an entirely unfair way to try the case; and the mischief was not averted because the court properly sustained the objection,--though we think it should have warned counsel against the course which he was taking,--and instructed the jury specially on the subject. The wrong and the harm was in the asking of the question. Of course, in trials of criminal cases, questions as to the admissibility of evidence will frequently arise about which lawyers and judges may fairly differ in opinion; and in such cases defendants must be satisfied when courts sustain their objections. But where the prosecuting attorney asks a defendant questions which he knows, and every judge and lawyer knows, to be wholly inadmissible and wrong, and where the questions are asked without the expectation of answers, and where the clear purpose is to prejudice the jury against the defendant in a vital...

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    • March 29, 2012
    ...veracity of the defendant in a manner not countenanced by the courts," thereby "taint[ing]" the jury's verdict.); State v. Rowell, 77 N.M. 124, 128, 419 P.2d 966, 969 (1966) (The prosecution's inquiry into the defendant'sprior conviction "was fraught with such harm to defendant as to be irr......
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    ...insufficient to correct prejudice resulting from counsel's improper statements during voir dire emphasizing insurance); State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966). ¶137 Plaintiff requested an instruction informing the jury that Cochran was covered by insurance. The trial court refuse......
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    • February 5, 1971
    ...did not amount to reversible error, and no error was preserved for review. See State v. Hudson, supra. Nothing said in State v. Rowell, 77 N.M. 124, 419 P.2d 966 (1966), requires us to hold The next area of claimed misconduct on the part of the district attorney relates to his comments upon......
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    • United States
    • New Mexico Supreme Court
    • March 29, 2012
    ...veracity of the defendant in a manner not countenanced by the courts,” thereby “taint[ing]” the jury's verdict.); State v. Rowell, 77 N.M. 124, 128, 419 P.2d 966, 969 (1966) (The prosecution's inquiry into the defendant's prior conviction “was fraught with such harm to defendant as to be ir......
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