State v. Walton.

• Court: New Mexico Supreme Court
• Writing for the Court: MABRY, Justice.
• Citation: State v. Walton, 43 N.M. 276, 92 P.2d 157, 1939 NMSC 32 (N.M. 1939)
• Decision Date: 20 June 1939
• Docket Number: No. 4387.,4387.
• Parties: STATEv.WALTON.

43 N.M. 276

92 P.2d 157

STATE

v.WALTON.

No. 4387.

Supreme Court of New Mexico.

June 20, 1939.

Appeal from District Court, Otero County; Numa C. Frenger, Judge.

Oscar F. Walton was convicted of statutory rape, and he appeals.

Reversed and remanded for new trial.

An instruction upon corroboration is not necessary or required in a rape prosecution.

J. L. Lawson, of Alamogordo, and Holt & Holt, of Las Cruces, for appellant.

Frank H. Patton, Atty. Gen., and A. M. Fernandez, Asst. Atty. Gen., for the State.

MABRY, Justice.

This is an appeal from a conviction upon a charge of statutory rape, alleged to have been committed at Alamogordo, Otero County, New Mexico, upon a girl of the age of fourteen years and therefore under the age of consent.

There are several assignments of error, but we shall notice here only those that we deem important and which raise questions determinative of the appeal.

[1] Appellant assigns error in the Court's permitting, over objection of appellant, the prosecutrix to be asked and allowed to answer the question of whether she had ever had sexual intercourse with any person other than the appellant. She answered that she had not had other intercourse. Objection was upon the ground that this was self serving testimony. This testimony was offered prior to the time that a doctor was called and testified that he examined the prosecutrix about July 28, 1937. Then, upon objection on the part of appellant further testimony as to the examination by the doctor and what it disclosed the court held as inadmissible, as too remote. Appellant did not move to strike the testimony of the doctor as far as it had gone. It may fairly be said that the objection urged was too general to call for review of its overruling. In any event, after the court refused to permit further testimony by the doctor as to what his examination disclosed, as being too remote, the testimony of the prosecutrix heretofore referred to became and was at most, harmless error. Upon motion, it could and probably should have been stricken. There was no such motion. No error can be predicated upon this testimony in the absence of a showing of prejudice, which we hold is not shown here. State v. Pruett, 22 N.M. 223, 160 P. 362, L.R.A.1918A, 656.

A number of assignments of error are grouped together and argued under the second point presented and which is to the effect that the story told by the prosecutrix is so highly and inherently improbable as to be unworthy of belief. Appellant argues that the substantial evidence rule ordinarily to be invoked in support of judgments and verdicts, has no application in a rape case such as this, even if there be such evidence to support the verdict, which he claims there is not.

Since we must reverse the judgment on account of an error of the trial court hereafter to be noted, and remand the case for a new trial wherein the evidence may not be the same as presented on the present record, we find it unnecessary to discuss the last mentioned assignment of error. However, in contemplation of such new trial, we deem it advisable to consider the argument of counsel embodied in the inquiry: “Must there be corroboration of the prosecutrix, direct or circumstantial?”

In State v. Shults, 43 N.M. 71, 85 P.2d 591, we reviewed the authorities upon the question of the necessity of corroboration in cases of this character and pointed out that it has never been the rule in this state and is not now the rule that in cases of rape the testimony of the prosecutrix must be corroborated, in the sense that such term is sometimes used; and further, that we did not in State v. Taylor, 32 N.M. 163, 252 P. 984, overrule State v. Ellison, 19 N.M. 428, 144 P. 10. In the Shults case we said [43 N.M. 71, 85 P.2d 593]: “In the Taylor case, and in the case of State v. Clevenger, [27 N.M. 466, 202 P. 687], we held that the facts attempted to be proved by the complaining witness were so inherently improbable that in the absence of at least evidence of some ‘unequivocal fact pointing unerringly *** to appellant's guilt’, the conviction should not stand; for otherwise, the conviction was without substantial support in the evidence; and in so holding, we are supported by the decisions of other courts.”

In the Shults case we distinguished between the common law rule and that applying in cases of statutory rape, where there is absence of such corroboration as outcry, torn and disarranged clothing, wounds or bruises. These corroborating facts need not appear, we said, where consent is immaterial and force is not used. But corroborating facts of this sort do not necessarily occur in statutory rape. There we have only to determine that the testimony of the prosecuting witness is not inherently improbable.

It is assigned as error that the court refused to give the jury the following and other like instruction: “You are further instructed that in a case of this character, where the charge is denied by the defendant under oath, unless the testimony of the prosecutrix is corroborated by the testimony of some other credible witness shown to be fair and willing and able to tell the truth and who testifies to some unequivocal fact unerringly pointing to the commission of the particular crime charged, the defendant is entitled to an acquittal; and unless you find that the testimony of the prosecutrix in this case has been corroborated by testimony of the character last mentioned, then it will be your duty to acquit the defendant.”

[2] We have stated a number of times that if the facts attempted to be proved by the prosecuting witness were inherently improbable, then in the absence of at least evidence of some unequivocal fact pointing unerringly to the defendant's guilt, the conviction could not stand. State v. Shults, 43 N.M. 71, 85 P.2d 591, and cases there reviewed. But this rule applies only in cases in which the facts attempted to be proved by the prosecuting witness are inherently improbable and not to the testimony of any prosecuting witness in this character of case, as the requested instruction imports.

[3] It remains for the trial court upon motion for a directed verdict or through other appropriate action, or for this court upon review, to say whether there be evidence of any fact or circumstance which tends to establish the truth of prosecutrix's testimony so as to bring it within the rule requiring substantial evidence to support the verdict of conviction. No instruction upon corroboration was required. “The question for the jury was, did the defendant commit the crime as charged?” State v. Ellison, supra.

In view of a somewhat confused situation that has arisen through the years in disagreement of counsel in the interpretation of the rule respecting corroboration as we have treated the subject from the earliest cases until now, it might be well to clearly and definitely state that we do not consider that Justice Parker, in the language used in State v. Ellison, 19 N.M. at page 449, 144 P. at page 17, laid down or announced a rule of law, when he said: “It is of course true, in a sense the testimony of a prosecutrix must be corroborated,” etc.

This reference and the language immediately following had nothing to do with the question of the character of corroboration referred to being one of concern for the jury and upon which there should be an instruction. Already, in the opinion, it had been definitely stated that counsel for the state and the defendant in that case had both mistakenly relied upon the rule that there must be corroboration of the testimony of the prosecutrix. We then said that it was immaterial that an instruction of the trial court was to the effect that such corroboration need not come from some other source than the prosecutrix, but rather that the act of the prosecutrix in reporting the alleged assault to her mother or some other person at the earliest opportunity would constitute corroboration of her testimony and thus meet the rule.

This court was dealing with and approving a rule of law when we said in that case upon an abundance of authority there cited: “Corroboration is required in many of the states by statute. But in the absence of a statute a man may be convicted of rape on the uncorroborated testimony of a strumpet, or he may be convicted on the uncorroborated testimony of a girl below 10 years of age.”

The court's further careful and detailed analysis of earlier New Mexico cases upon the subject should have been sufficient to show that in the absence of a statute so requiring, the rule in New Mexico was not unlike the rule in other states, and that corroboration was not required. Yet, we know the language employed in this opinion as above referred to, appearing in 19 N.M. on page 449, 144 P. at page 16, as well perhaps as some language used in State v. Edie, 6 N.M. 555, 30 P. 851, and Mares v. Territory, 10 N.M. 770, 65 P. 165, and perhaps others, has, judging from the manner of the presentation of the question by attorneys in...