State v. Trujillo.

• Decision Date: 10 February 1928
• Docket Number: No. 3209.,3209.
• Citation: 266 P. 922,33 N.M. 370
• Parties: STATEv.TRUJILLO.
• Court: New Mexico Supreme Court

33 N.M. 370

266 P. 922

STATE

v.TRUJILLO.

No. 3209.

Supreme Court of New Mexico.

Feb. 10, 1928.Rehearing Denied May 2, 1928.

Syllabus by the Court.

Sufficiency of evidence to support conviction of statutory rape not having been questioned at the trial, and the prosecutrix's story not being inherently improbable nor wholly uncorroborated, verdict will not be disturbed.

Objection that information is verified by district attorney on information and belief cannot be raised by motion in arrest.

Objection that one informed against for felony had no preliminary examination cannot be entertained after plea.

Technical error in denying continuance harmless if the fact to be proven by absent witness is proven by another.

Evidence of medical examination of prosecutrix two weeks after event not too remote.

Evidence of diligence in effort to obtain attendance of witness held sufficient to support court's discretion to receive former testimony.

Laws 1919, c. 29, § 7, declaratory of common law as to receiving former testimony of absent witness.

Instructions given and refused will not be reviewed in the absence of exception.

Additional Syllabus by Editorial Staff.

Evidence held to sustain conviction for statutory rape.

Appeal from District Court, Mora County; Armijo, Judge.

Jacobo Trujillo was convicted of statutory rape, and he appeals. Affirmed.

Evidence sustained conviction of statutory rape.

Neal & Neal, of Las Vegas, for appellant.

Robert C. Dow, Atty. Gen., and Frank H. Patton, Asst. Atty. Gen., for the State.

WATSON, J.

This appeal is from a conviction and sentence for statutory rape.

[9] The prosecutrix, 15 years of age, was living with a 9 or 10 year old brother, and a sister 6 years old, and two older brothers. At 9 or 10 o'clock in the evening she and her youngest brother and her sister were alone and asleep in the house. Appellant, the husband of the prosecutrix's older sister, entered the house, came to prosecutrix's bed, and, on the latter calling out, seized her by the throat, threw her down on the floor, pulled her out of the house, took her some distance to a clump of bushes, and ravished her. By the prosecutrix's outcries, the children were aroused, and she told them to call her aunt, who lived but a short distance away. After the outrage the prosecutrix went immediately to her aunt and complained, naming appellant as her assailant. She was clothed in a nightgown. Her hair was disheveled. She was muddy and was perspiring. Two weeks later a medical examination disclosed that prosecutrix's hymen had been ruptured, and that she was suffering from gonorrhœa of about two weeks standing. This is, in the main, the evidence on the part of the state.

[1] It is here vigorously urged that the evidence was insufficient to support the conviction. There was no motion for a directed verdict and the sufficiency of the state's case was first questioned by motion for a new trial. Consequently appellant cannot demand, as of right, a consideration of his present contention. He invokes our inherent power to prevent fundamental injustice. State v. Garcia, 19 N. M. 421, 143 P. 1012. Such power we exercised in State v. Taylor, 32 N. M. -, 252 P. 984, where the prosecutrix's inherently improbable story was uncorroborated by any unequivocal fact pointing unerringly to guilt. Following that case, we are not to weigh the prosecutrix's evidence as against appellant's denial and the evidence adduced on the part of the defense. We only inquire as to whether it is inherently improbable and wholly uncorroborated. The facts, as set forth, show a legal corroboration under the previous decisions of this court. The story narrated by the prosecutrix is not inherently improbable in the sense that term is used in the Taylor Case, and in the cases there cited. We are satisfied that this is not a proper occasion for interference by this court.

[2] By motion in arrest of judgment objection was made, for the first time, that the information was verified by the district attorney on information and belief. It was then, and is now, contended that this is a fatal defect, since Laws 1925, chapter 145, section 2, requires that “all information shall be verified by the oath of the prosecuting attorney, complainant or some other person.”

In State v. Taylor (No. 3130) 261 P. 808, not yet officially reported, we found that sections 5-27 of said chapter 145 were taken from Oklahoma. We now find that sections 1, 2, and 3 of that chapter were also taken from Oklahoma, and are identical with sections 5693-5695 of its Revised Laws of 1910. We therefore look to the decisions of that state prior to our adoption of the statute. As pointed out by appellant, it had been held that a verification on information and belief was insufficient. It had been held even that a former provision, expressly authorizing verification by the district attorney on information and belief, was unconstitutional; violative of the provision that warrants should not issue except upon probable cause, supported by oath or affirmation. But by a series of decisions found in the Fourth Oklahoma Criminal Reports, it was held that this constitutional provision, being for the benefit of the accused, might be waived, and was waived, if not raised before plea; was not jurisdictional, and could not be raised by motion in arrest of judgment. Muldrow v. State, at page 324, 111 P. 656; Blair v. State, at page 359, 111 P. 1003; In re Talley, at page 398, 112 P. 36, 31 L. R. A. (N. S.) 805, and Heacock et al. v. State, at page 606, 112 P. 949. Later decisions are to the same effect. Henson v. State, 5 Okl. Cr. 201, 114 P. 630; Martin v. State, 5 Okl. Cr. 355, 114 P. 1112; Brown v. State, 9 Okl. Cr. 382, 132 P. 359; Files v. State, 16 Okl. Cr. 363, 182 P. 911.

We are here met with a peculiar situation. The Oklahoma decisions hold that the statute in question applies only to misdemeanors, and that an information for a felony requires no verification whatever. This is based upon the fact that when the statute was adopted only misdemeanors could be prosecuted by information. The distinction, from a constitutional standpoint, is this: An information for felony is preceded by a preliminary examination. The citizen is not deprived of his liberty, nor put to trial, solely upon the information. There are proceedings and sworn facts antecedent. Such is not the case when only a misdemeanor is charged.

In New Mexico, however, the situation is different. The express purpose of chapter 145 was to “vitalize” the amendment to our Constitution permitting prosecution of felonies by information. Whether this difference changes the ordinary rule as to the binding effect of the Oklahoma decisions we do not pause to consider. In re Talley, supra, carefully examines the question on principle and authority. It is there held that the constitutional provision corresponding to our article 2, § 10, relative to arrests, searches, and seizures, and the statutory provisions corresponding to our Code of 1915, § 4428, relative to the issuance of warrants, and to our Laws of 1925, c. 145, § 2, here particularly in question, relative to verification of informations, are to be considered in pari materia; their general purpose being “the preservation of the personal security and liberty of the individual, by forbidding the issuance of a warrant for his arrest except upon probable cause shown under oath, and by preventing as far as possible the institution of baseless and unfounded prosecutions.” Such provisions do not deal with the essentials of an information as an accusation, and do not go to the jurisdiction. They merely prescribe rights of which an accused person is not to be deprived if he claims them at the proper time; but if he pleads and goes to trial upon an information, defectively verified, or not verified at all, he, in effect, “admits what the verification is intended to show, namely, that there exists probable cause to believe him guilty sufficient to warrant his arrest and trial on the charge.” This reasoning is supported by decisions there cited from Kansas, Nebraska,...