State v. Till, 8290

Decision Date26 June 1967
Docket NumberNo. 8290,8290
Citation430 P.2d 752,78 N.M. 255,1967 NMSC 150
PartiesSTATE of New Mexico, Plaintiff-Appellee, v. Tommie Clayton TILL, Defendant-Appellant.
CourtNew Mexico Supreme Court
OPINION

HENSLEY, Jr., Chief Judge, Court of Appeals.

The defendant was charged with having committed the crime of rape of a child. The statute alleged to have been violated is § 40A--9--4, N.M.S.A.1953. Following a verdict of guilty and a sentence to life imprisonment the defendant prosecutes this appeal.

The appellant and the mother of the prosecutrix had at one time been husband and wife. The marriage ended in divorce and thereafter the mother remarried. The prosecutrix, as nine year old, was a child of the second marriage. Without dissolving the second marriage the mother of the prosecutrix and the appellant resumed cohabitation. The child testified that the penetration occurred in the home on a Saturday evening while the mother was away on a brief errand. The child reported the occurrence to the mother the next morning. The following day, Monday, the mother took the child to a doctor for examination. The doctor's testimony related the finding of a small abrasion or laceration of the vagina and the presence of sperm cells, no longer alive, outside the vaginal entrance. The doctor gave it as his opinion that the child had undergone sexual intercourse as late as the day charged. Early in the evening following the visit to the doctor's office, the appellant became very belligerent, which resulted in a brief altercation involving the mother, the appellant and the prosecutrix. The mother testified that the altercation resulted from her taking the child to the doctor for the examination without the consent or presence of the appellant. During the altercation there were variations in the account as to the place of the crime and the identity of the culprit. These were called to the attention of the jury by defense counsel in cross-examination of the state's witnesses. The defendant did not testify.

The appellant contends that the evidence adduced was too vague and insufficient to establish the guilt of the defendant. The question was first raised by proper and timely objections in the trial court. State v. nuttall, 51 N.M. 196, 181 P.2d 808. In State v. Maestas, ,76 N.M. 215, 413 P.2d 694, we pointed out that in a situation such as this case presents we will only weigh the evidence in the scales of inherent probability. In State v. Salazar, 74 N.M. 63, 390 P.2d 653, we quoted from a California case, (People v. Huston, 21 Cal.2d 690, 134 P.2d 758) the following discussion of inherent improbability:

'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. (Citation...

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12 cases
  • State v. Chavez
    • United States
    • Court of Appeals of New Mexico
    • August 19, 1993
    ...her statements at trial that she believed her trial testimony was accurate and truthful. The standard set forth in State v. Till, 78 N.M. 255, 430 P.2d 752 (1967), appeal dismissed and cert. denied, 390 U.S. 713, 88 S.Ct. 1426, 20 L.Ed.2d 254 (1968), limits inherently improbable testimony t......
  • State v. Garcia
    • United States
    • Court of Appeals of New Mexico
    • April 5, 2004
    ...court, as factfinder, was entitled to accept the testimony of the State's witnesses as both truthful and accurate. See State v. Till, 78 N.M. 255, 430 P.2d 752 (1967). Nor are we basing our holding that the evidence was insufficient on Defendant's denial of any connection to the handgun, as......
  • State v. Sanchez
    • United States
    • Supreme Court of New Mexico
    • June 26, 2000
    ...that the jury could not have believed Wise and Hall or that their testimony was inherently improbable. See State v. Till, 78 N.M. 255, 256, 430 P.2d 752, 753 (1967) (discussing inherent improbability). Additionally, we are not persuaded by Defendant's specific claim that there was no eviden......
  • State v. Sanders
    • United States
    • Supreme Court of New Mexico
    • April 6, 1994
    ...the statements are true or the falsity of the statement is apparent without resort to inferences or deductions. State v. Till, 78 N.M. 255, 256, 430 P.2d 752, 753 (1967), cert. denied, 390 U.S. 713, 88 S.Ct. 1426, 20 L.Ed.2d 254 (1968). Because Christine's testimony is not inherently improb......
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