State v. Taylor.

• Court: New Mexico Supreme Court
• Writing for the Court: WATSON, J.
• Citation: State v. Taylor, 32 N.M. 163, 252 P. 984, 1927 NMSC 6 (N.M. 1927)
• Decision Date: 07 January 1927
• Docket Number: No. 3056.,3056.
• Parties: STATEv.TAYLOR.

32 N.M. 163

252 P. 984

STATE

v.TAYLOR.

No. 3056.

Supreme Court of New Mexico.

Jan. 7, 1927.

Syllabus by the Court.

The charge being statutory rape, the prosecutrix's inherently improbable story, uncorroborated by any unequivocal fact pointing unerringly to guilt, is not sufficient to support a verdict.

A conviction of statutory rape based on a prosecutrix's inherently improbable story, uncorroborated by any unequivocal fact pointing unerringly to guilt, will be set aside, in the interest of justice, though the insufficiency of the evidence was not urged in the trial court.

Appeal from District Court, Curry County; Hatch, Judge.

Claude R. Taylor was convicted of statutory rape, and he appeals. Reversed, and remanded for a new trial.

Improbable evidence of prosecutrix, uncorroborated by fact pointing to guilt, held not to support conviction of statutory rape.

Hall & McGhee, of Clovis, for appellant.

John W. Armstrong, Atty. Gen., and James N. Bujac, Asst. Atty. Gen., for the State.

WATSON, J.

Appellant was convicted of statutory rape upon one Tollie Stone. The verdict was accompanied by a recommendation of clemency. The sentence was not less than 15 nor more than 20 years in the penitentiary. Counsel appearing here did not represent appellant in the court below. There were no exceptions to the instructions given, no other instructions tendered, no motion for a directed verdict, and no motion for a new trial. The matters here urged as error, and that upon which we feel constrained to reverse the judgment, were not brought to the attention of the trial court.

[1] The judgment is here attacked for errors in the instructions given. It is urged that the defective instructions must have misled the jury and have caused the conviction, because of the slight probability that a jury, understanding the evidence and correctly and clearly instructed as to the law, could have found appellant guilty. So, it is urged, the error is fundamental, and should be corrected, though not brought to the attention of the trial court, citing State v. Garcia, 19 N. M. 414, 143 P. 1012; Crawford v. Dillard, 26 N. M. 291, 191 P. 513. In developing this point, counsel call attention to the unsubstantial nature of the state's evidence, and the lack of corroboration of the prosecutrix's testimony. While counsel do not rely directly upon this for a reversal of the judgment, we deem it the vital question in the case and shall not concern ourselves with the instructions.

The prosecutrix reached the age of 16 December 27, 1923. It seems that for some months prior to that date she lived with her father and stepmother about three-fourths of a mile from appellant's home. Appellant was 28 years old, and lived with his wife, 19 years old, and three small children, in a one-room house containing one bed. Outside there was a dugout in which appellant habitually slept with his little boy, while his wife slept in the bed in the house with the two little girls. It is admitted that during the summer of 1923, while they were neighbors, the prosecutrix was frequently at appellant's home, sometimes spending the night there, and that in January, 1924 (prosecutrix's father thought in March), her father and stepmother moved to Clovis, and that, before joining them there, she remained a week or two with appellant and his family. Whatever took place during that visit was subsequent to the prosecutrix's sixteenth birthday.

The directly incriminating evidence was given by the prosecutrix, who testified that on or about July 1, 1923, she spent the night at appellant's home; that she occupied the bed with appellant, his wife, and three children; and that while so situated she and appellant had intercourse, during which act appellant's wife was awake and made no objection. This occurrence was flatly denied by appellant and by his wife.

To corroborate this highly improbable narration, the prosecutrix was allowed to testify that she had had intercourse with appellant subsequently. The dates of such subsequent occurrences were not fixed. One or more of them was in a hotel in Clovis after January, 1924. Nowhere in the record is there any evidence of sexual acts between the parties prior to the prosecutrix's sixteenth birthday, except that of July. Except for the alleged occurrence in July, 1923, and the one or more in Clovis, after January, 1924, the only evidence upon which any inference of such acts might be based is the prosecutrix's affirmative answer to this question on cross-examination:

“Do you mean to tell the jury then that sometimes when you were over there you slept with Jewel Taylor (appellant's wife) in the house and sometimes you slept with Mr. Taylor in that dugout?”

In connection with this answer it will be observed that no act of intercourse is testified to. No effort was made by the state to bring out the date when the prosecutrix claimed to have slept with appellant in the dugout. This might have occurred as well, or better, during the week or two that the prosecutrix visited in appellant's home after her sixteenth birthday. Following this question and answer, this occurred:

“Q. And Jewel Taylor knew that all the time? A. Yes; sure she knew it.

Q. And she did not make any objection to it at all? A. No, sir.”

The pair were arrested together in Clovis, June 24, 1924. They had been watched and followed at the instance of Mrs. Taylor's relatives. A charge, the nature of which the record does not disclose, was lodged against the prosecutrix, under which she was held in custody until the evening of the second day, and then released under bond. The further proceedings against her, if any, are not disclosed. A packet was taken from appellant containing letters which purported to have passed between them, and two photographs showing them in...