State v. Velarde
Decision Date | 28 July 1960 |
Docket Number | No. 6667,6667 |
Citation | 1960 NMSC 77,67 N.M. 224,354 P.2d 522 |
Parties | STATE of New Mexico, Plaintiff-Appellee, v. Claudio Clyde VELARDE and Tony Mike Aranda, Defendants-Appellants. |
Court | New Mexico Supreme Court |
Dean S. Zinn, Santa Fe, for appellants.
Hilton A. Dickson, Jr., Atty. Gen., B. J. Beggett and Boston E. Witt, Asst. Attys. Gen., for appellee.
Ray Joe Marquez, Joe Saldonio Valencia, Claudio Clyde Velarde, and Tony Mike Aranda were charged with having raped one Eva Nez. The victim was an Apache Indian. The cause was tried to a jury of San Juan County. Valencia was acquitted and the remaining defendants were found guilty. A motion for a new trial having been denied, judgment was entered and, from the judgment and sentence pronounced against them, Velarde and Aranda appeal.
Since the sufficiency of the evidence to sustain the verdict of the jury and the judgment entered thereon is not challenged, we deem it unnecessary to discuss the evidence extensively. The question presented is whether the admission into evidence of prior acts of misconduct by appellants constitutes prejudicial error.
The offense allegedly occurred about a mile north of Blanco, New Mexico, at about midnight July 3, 1958. The defendant Valencia was represented by attorneys Cain and Morgan. The remaining defendants were represented by Herman A. Daugherty and La Vor W. Burnham. The defendants attempted to establish an alibi as a defense, claiming that they were in the Blanco bar, or dance hall adjacent thereto, at the time the offense was allegedly committed. Lloyd Garcia, who was tending bar at the Blanco bar that night, was called as a witness for Valencia. On direct examination conducted by Mr. Cain, Garcia testified that Valencia was at the bar at the time of the alleged offense; that he arrived around 8:00 P.M. July 3, 1958, and remained at least until closing time, 1:30 A.M. July 4, 1958. He was then cross-examined by appellants' counsel, testifying as follows:
(Emphasis ours.)
On cross-examination by Mr. Milling, Assistance District Attorney, the following proceedings were had:
'Q. You say you had had some differences with Aranda? A. Right.
'Q. What sort of differences?
'Mr. Burnham: I object unless it is tied in.
'Court: Overruled, this is cross-examination.
'Mr. Milling: What sort of differences?
'A. Well, a month before that I broke up a little party they had had.
'Q. What kind of a party? A. Do I have to answer these questions, your Honor?
'Court: Answer the question.
'A. Well, I heard some noise in the back of the bar and I got up and they were abusing a Navajo squaw.
'Q. How were they abusing her? A. Well, there was a little boy laying on the floor bloody and the squaw had part of her clothes off.
'Mr. Burnham: I ask that this be stricken.
'Court: Denied.
'Mr. Milling: Go ahead.
A. Well, and the girl, she knew me and she came running to me right away, and they left.
'Q. When you say 'they', who? A. Aranda and Velarde.
'Mr. Burnham: I would like to renew my objection again, and there has been no time set, and ask that the testimony be stricken.
'Court: Overruled.'
Appellants contend that they should have been granted a new trial because of the admission into evidence of a collateral offense. We agree. It is a general rule that evidence of collateral offenses, though similar in character, are inadmissible in a criminal prosecution to establish a specific crime, State v. Nelson, 65 N.M. 403, 338 P.2d 301; State v. Lord, 42 N.M. 638, 84 P.2d 80; State v. Bassett, 26 N.M. 476, 477, 194 P. 867; State v. Starr, 24 N.M. 180, 173 P. 674; Commonwealth v. Kline, 361 Pa. 434, 65 A.2d 348; Henderson v. State, 94 Okl.Crim. 45, 230 P.2d 495, 23 A.L.R.2d 1292; State v. Amundsen, 37 Wash.2d 356, 223 P.2d 1067, 21 A.L.R.2d 1082. While this rule is qualified by a number of exceptions, State v. Bassett, supra; State v. Lord, supra; State v. Starr, supra; State v. Borrego, 52 N.M. 202, 195 P.2d 622; State v. Whitener, 25 N.M. 20, 175 P. 870; State v. Allen, 163 Kan. 374, 183 P.2d 458; State v. Ferrand, 210 La. 394, 27 So.2d 174, 167 A.L.R. 559; People v. MacDonald, 53 Cal.App. 488, 200 P. 491; State v....
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State v. Aguirre, 9490
...inadmissible to prove the guilt of a defendant of a specific crime. State v. Garcia, 80 N.M. 21, 450 P.2d 621 (1969); State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960); State v. Nelson, 65 N.M. 403, 338 P.2d 301 (1959); State v. Garcia, 83 N.M. 51, 487 P.2d 1356 (Ct.App.1971). However, one......
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...taken together, were sufficient to alert the mind of the court to the objections of defendant to this testimony. See State v. Velarde, 67 N.M. 224, 354 P.2d 522 (1960). Defendant's objections were not waived because they were not repeatedly asserted. Martin v. State, 80 Nev. 307, 393 P.2d 1......
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