State v. Trujillo

• Decision Date: 19 October 1955
• Docket Number: No. 5901,5901
• Citation: 60 N.M. 277,291 P.2d 315,1955 NMSC 94
• Parties: STATE of New Mexico, Plaintiff-Appellee, v. Ernest TRUJILLO, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 315

291 P.2d 315

60 N.M. 277

STATE of New Mexico, Plaintiff-Appellee, v. Ernest TRUJILLO, Defendant-Appellant.

No. 5901.

Supreme Court of New Mexico.

Oct. 19, 1955.

Rehearing Denied Jan. 3, 1956.

John B. Wright, Raton, David Chavez, Jr., Santa Fe, of counsel on appeal, for appellant.

Richard H. Robinson, Atty. Gen., Santiago E. Campos, Asst. Atty. Gen., Fred M. Standley, Asst. Atty. Gen., for appellee.

PER CURIAM.

Upon consideration of this case on rehearing the Court has decided to withdraw the opinion on file and substitute the following therefor:

SADLER, Justice.

The appellant (defendant below) was convicted in the district court of Colfax County of violating 1953 Comp. Sec. 40-34-21 in the indecent handling or touching of a female minor under the age of 18 years and sentenced to a term of not less than one year nor more than two years in the New Mexico State Penitentiary. He prosecutes this appeal from the judgment of conviction so rendered against him.

The parents of the prosecuting witness, a young girl 11 years of age, and the defendant, his wife and children, lived on neighboring ranches a few miles removed from each other in Colfax County, New Mexico. They had been close friends and neighbors for many years.

On the morning of June 16, 1954, Ernest Trujillo, the defendant, his wife, Lola, their two children, aged 22 months and 4 years, respectively, went to the home of Otho Spencer, father of the prosecuting witness, some five miles distant and spent a goodly portion of the day there.

Late in the afternoon of said day defendant, accompanied by the prosecutrix, a nephew named Adolf, called 'Dolfo,' aged 5 years, and the defendant's 22 months old baby girl, drove back to his home to enable defendant to do the evening chores. It was still daylight when they arrived at defendant's home but darkness was gradually descending. All went into the house together. The defendant prepared some sandwiches soon after arriving and after eating them the entire party went out in the pickup truck in which they had come looking for some of defendant's cows. They then returned to the house. The defendant asked Dolfo to remain outside in the pickup and told the prosecuting witness to take the baby back into the room of Larry, a son.

Dolfo having left the pickup and come into the house, defendant told him to remain in the kitchen and having asked prosecutrix to take the baby in Larry's room, she informed him that Lola, the baby's mother, always puts her in her little bed. He said they would take her into Larry's room. The living room and dining room are between the kitchen and Larry's room. There was no light on in Larry's room, nor in the hallway adjoining it.

As soon as they were all in Larry's room, that is, the defendant, prosecuting witness and the baby, she asked him to turn on the light. He said, no, to leave it off. She had placed the baby on the bed and given her a bottle and was sitting on its side with her feet on the floor. He was standing on the opposite side of the bed and asked prosecutrix to come over where he was and she declined. He then came over to side of the bed where she was sitting with her feet on the floor. Her testimony in question and answer form follows:

'Q. What did Ernest do when he came over beside you on the side of the bed where you were? A. He asked me if wanted to play a little, and I told him no, and then he just took me by the shoulders and pushed me back and told me to take my leg out of my peddle pushers.

'Q. Now, wait a minute, he pushed you back? A. Yes.

'Q. How far did he push you back? A. Well, when I was laying down.

'Q. You were lying down on the bed then? A. Yes.

'Q. Where were your feet? A. Well, they were flat on the floor.

'Q. Your feet weren't up on the bed? A. No.

'Q. In other words, in that sitting position in which you were in, he just pushed you--A. Yes.

'Q. Then what? A. He told me to take my leg out of my peddle pushers and I didn't and so then he pulled them down a little----

'Q. Now, wait a minute. We want to get exactly what happened, everything that happened. He told you to take your leg out of your peddle pushers. What did you do? A. I didn't, and he----

'Q. Now, what kind of clothing were you wearing at that time? A. Well, I had a light blouse on, my red peddle pushers and panties, and I had a little T-shirt on.

'Q. What are these peddle pushers? A. Well, they are not as long as these and not as short as shorts, they are right below my knees.

'Q. A little longer than knee length, is that right? A. Yes.

'Q. Now, did you have a belt? A. No; they were elastic in the back.

'Q. What about the front part? A. Well, this material, the red material.

'Q. You say you wouldn't pull your peddle pushers down. What happened then? A. Then, when he took my leg out, why----

'Q. How did he do that? A. Well, he pulled them down a little ways and then he just pulled my leg out of my panties and----

'Q. Now, wait----

'Mr. Wright: Let her answer.

'The Court: Don't interrupt her so much. We all want to know what is going on here. Go ahead and tell what happened after that.

'A. Then when he pulled them down why he just sort of pushed my leg up and pulled the leg out, you know, and then when he laid over me and with that thing where he wets, and then I belched twice and he quit and got up and went out and let his cows out and I got up and took the baby and went in the kitchen and first I called Dolfo twice and then he didn't come and I went to the kitchen after that and asked why he didn't come and he said my uncle Ernest told me to stay here.

'Q. Now, you said he took one leg out, which leg was it? A. Well, my left I guess, it was this leg, on this side.

'Q. When you went back in the kitchen, what happened to the baby? A. I had her with me.'

Following the occurrences just related, the defendant returned in the pickup to the Spencer home taking with him Ernestine, the baby, Dolfo and the prosecutrix. The Trujillo family lingered at the Spencer home beyond the bedtime of the prosecutrix. She said nothing to her mother or anyone else before going to bed about the occurrence mentioned. She testified further:

'Q. While you were in there, while you and Ernest and the baby were there in the bed room, did Ernest say anything else to you? A. Yes; he told me not to tell nobody, he kept telling me that because he would get in trouble and I would get a real hard spanking.'

Nothing was said by the prosecutrix about the incident the next morning and that afternoon the prosecutrix and her brother went into Springer, their parents going to Raton to attend a square dance during the Entrada Ceremonies. The prosecutrix, her sister aged 13, her brother aged 16 and two companions, boys of 16 years, all went to Springer to a show the afternoon of the day following the occurrence related. The prosecutrix kept noting an impulse to go to the bathroom, but on going could not urinate. But while in the bathroom she noticed blood on her panties. These were not the panties, however, that she had on the night before. They had been removed when she took a bath, changed clothes and panties on preparing for the trip to Springer. On removing the panties worn the night before she had thrown them into the washing machine but an examination disclosed no sign of blood on them.

As soon as prosecutrix discovered the blood on her panties while visiting the toilet in the show, she mentioned to her sister what had happened the night before. Indeed, she had told her sister what had occurred the night before, while taking a shower before leaving home earlier that evening, but she repeated it to her upon finding a blood spot on her panties while in the toilet at the show in Springer. The sister told her brother and he took her immediately to Dr. Joe S. Gunter for an examination.

Dr. Gunter examined the prosecutrix the late afternoon of June 17, 1954. He testified to having made a rather careful examination of her private parts and general examination of her entire body so far as the skin surface was concerned. The examination was limited, however, to what could be seen and felt. No instrumentation was resorted to. He found no swelling, no bruises or tears. He saw no cuts on the body of the child. He observed the blood stains on the panties she wore. He stated if the blood stains were from a discharge it was either through the vagina or bladder, he could not say which.

When the parents of the prosecutrix returned from the Entrada in Raton the night of June 17th, they found the sheriff and state policeman at their house and learned for the first time what had happened. The mother of prosecutrix testified, however, that she had observed something strange about the child throughout the day following the alleged offense against her. Asked to describe her condition, the mother stated:

'A. She acted peculiar all day long. She didn't act herself at all. * * * She was strange all day long; very strange.'

It should also be stated as a part of the facts before the jury that the prosecutrix while on the stand testified that she thought defendant tried to put something else besides his finger into her and it caused her to cry out twice, 'Ouch!'

The defendant under a plea of not guilty denied on the stand that he had even gone into the back bedroom (Larry's room) with the prosecutrix; denied taking off her peddle pushers; denied touching her private parts with his hands or with his sex organ. His wife as a witness for him testified, among other things, that prior to leaving home on the day in question for the home of the Spencers, parents of the prosecutrix, she had started cleaning Larry's room and had the mattress and bedding outside airing, leaving only bedsprings on the bed in that room. Following his arrest and preliminary examination, the defendant was bound over for trial in the district court. The trial coming on, the jury heard the testimony of all witnesses for the state and defense, deliberated and...