State v. Ulmer.
| Decision Date | 20 March 1933 |
| Docket Number | No. 3810.,3810. |
| Citation | 37 N.M. 222,20 P.2d 934 |
| Parties | STATEv.ULMER. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dona Ana County; Frenger, Judge.
Wesley Ulmer was convicted of assault with intent to commit rape, and he appeals.
Reversed and remanded.
In prosecution for attempt to rape, third person's testimony of instances of prosecutrix' lewdness which prosecutrix had denied on cross-examination held not inadmissible as impeaching prosecutrix on collateral matter.
W. A. Sutherland, of Las Cruces, for appellant.
E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.
Appeal from a conviction and sentence for assault with intent to commit rape.
By the indictment it was charged that appellant “unlawfully and feloniously did assault one Ethel Lee Burns a female with intent to commit the crime of rape upon her, the said Ethel Lee Burns.”
The evidence on both sides shows that appellant and the prosecutrix spent some two or three hours of the night in an automobile. According to the prosecutrix' testimony, the whole time was spent by her in resisting appellant's more or less violent efforts and in frustrating his intent to accomplish his purpose by force and against her will. According to appellant, the time was spent in amorous passages in which the prosecutrix willingly participated, and in solicitation on his part, the prosecutrix never definitely refusing and, after wavering, finally yielding consent just as interruption came. Such was the issue of fact.
By cross-examination admissions were sought from the prosecutrix of previous instances of lewd acts and conversations with one Kelly; also of lewd conduct and conversation with appellant and one Smith, two or three days before the alleged crime. On that occasion Smith had introduced appellant to the prosecutrix, the three had sat together for some time in a one-seated car, and prosecutrix had engaged to go with appellant, as she did go, on the night of the alleged crime. She denied all that was implied in these questions. Without going into detail, it seems sufficient to say that if she had admitted these implications her character for chastity would have been badly smirched, and it would have been very difficult to believe the prosecutrix' account, and very easy to have believed appellant's version, of the facts.
[1][2][3] The witness Kelly being on the stand for the defense, counsel offered to prove the instances of lewdness to which he had called attention in cross-examination. The state objected to the offer “as being incompetent, irrelevant and immaterial, and for the further reason it is attempted to impeach the prosecutrix upon collateral and immaterial matters by extrinsic evidence other than that given by the witness herself.” The court ruled: “Acting under authority of State v. Clevenger, 27 N. M. 466, 202 P. 687, and other New Mexico decisions by the Supreme Court, the objection will be sustained.”
We cannot sustain the objection nor the ground on which the ruling was based. State v. Clevenger, supra, is not in point in this case. There the error lay in permitting the state to impeach a witness on a collateral matter. Whether the then witness had misconducted herself on particular occasions had no bearing on the guilt or innocence of the accused. It was pure matter of impeachment. Here, to have permitted the tendered proof would have impeached the prosecutrix, it is true; but not upon a collateral matter. Her alleged bad character for chastity was a proper and material issue. See State v. Newman, 29 N. M. 106, 219 P. 794, where we held that a witness' bias or interest is not collateral, and that he may be impeached regarding it.
[4] Nevertheless, we consider the refusal of this offer to have been proper. The authorities generally admit that, in rape, the bad character of the prosecutrix for chastity is relevant to the question of consent. Yet, for reasons which do not entirely satisfy Dean Wigmore, the majority of courts follow some rule of exclusion or limitation of such proof. 1 Wigmore on Evidence, § 200. In this jurisdiction, proof of specific acts of unchastity is excluded. Territory v. Pino, 9 N. M. 598, 58 P. 393. Dean Wigmore says in the same section of his work: “In actions for indecent assault, it would seem that the same principles apply; and the same attitudes would be taken upon this as upon rape.” We have found no authority for applying a different rule in the one case than in the other.
[5][6] Kelly being still in the witness chair, counsel offered to prove by Smith, above mentioned, the lewd acts and conversation of the prosecutrix with appellant. The state objected as before and added, “and thirdly for the reason it is an attempt to prove general reputation by specific acts.” The court ruled: “The objection will be...
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State v. Franklin
...the part of prosecutrix will always be received.' (Italics supplied.) See generally cases cited in the footnote to the text, State v. Ulmer, 37 N.M. 222, 20 P.2d 934; Brennan v. People, 7 Hun., N.Y., 171; Cloninger v. State, 91 Tex.Cr.R. 143, 237 S.W. 288; and Nash v. State, 103 Tex.Cr.R. 6......
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State v. Herrera, 3238
...argument that § 40A-9-26, supra, not only conflicts, but changes evidentiary rules, and our answers, follow: ( a) State v. Ulmer, 37 N.M. 222, 20 P.2d 934 (1933) dealt with the admissibility of the "bad character of the prosecutrix for chastity" and states that "proof of specific acts of un......
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State v. White, 5724
...it is not open to question. See State v. McCracken, 22 N.M. 588, 166 P. 1174; State v. Anderson, 24 N.M. 360, 174 P. 215; State v. Ulmer, 37 N.M. 222, 20 P.2d 934. In State v. McCracken, supra, in paragraph 2 of the syllabus prepared by the court, we 'As a general rule, in order to reserve ......
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State v. Guerrero, Criminal 909
...may be shown if not too remote. State v. Smailes, 51 Idaho 321, 5 P.2d 540; People v. Pantages, 212 Cal. 237, 297 P. 890; State v. Ulmer, 37 N.M. 222, 20 P.2d 934. In case it appears the juvenile delinquency of which the prosecutrix was guilty occurred when she was 13 years old. This mistak......