Territory v. Pino.

• Citation: 9 N.M. 598,58 P. 393
• Parties: TERRITORYv.PINO.
• Decision Date: 28 August 1899
• Court: Supreme Court of New Mexico

9 N.M. 598

58 P. 393

TERRITORY

v.PINO.

Supreme Court of the Territory of New Mexico.

Aug. 28, 1899.

Syllabus by the Court.

1. In a criminal case, where there is neither an absence of competent evidence against the accused nor a decided preponderance in his favor, and there is a direct conflict in the testimony, the jury's verdict is a conclusive adjudication of the facts of the case.

2. The character of the prosecutrix for chastity may be impeached only by general evidence of her reputation, and not by evidence of particular instances of unchastity.

3. The refusal of the court to give an instruction properly requested by defendant which is a correct statement of the law applicable to the facts in the case, and consistent with a reasonable theory other than that of defendant's guilt, and not covered by any other instruction which was given by the court, is reversible error.

Appeal from district court, Socorro county; before Justice H. B. Hamilton.

Geronimo Pino was convicted of rape, and appealed. Reversed.

The character of the prosecutrix for chastity may be impeached only by general evidence of her reputation, and not by evidence of particular instances of unchastity.

A. A. Freeman, for appellant.

E. L. Bartlett, Sol. Gen., for the Territory.

CRUMPACKER, J.

Geronimo Pino was indicted for rape. The indictment charged that the defendant, on the 30th day of August, 1893, ravished one Andrea Cordova. The defendant was found guilty. Motions for a new trial and in arrest of judgment being overruled, the case is brought into this court on appeal.

It is contended by the appellant that the evidence is insufficient to support the verdict of the jury, and that for this reason this court should reverse the judgment. To do so, we must decide either that there is an absence of competent evidence against the accused, or a decided preponderance in his favor. Territory v. Edie, 6 N. M. 555, 30 Pac. 851. And, in view of all the evidence in the case,-the positive direct testimony of the plaintiff that she was ravished as charged in the indictment, and of facts and testimony tending to corroborate her, and of the equally positive testimony of the defendant, and testimony tending to corroborate him that he was elsewhere at the time the offense is alleged to have been committed, neither of which state of facts involves either an absurdity of reasoning or an impossibility growing out of the very nature of things,-we can arrive at no other conclusion than that in such a case the jury's verdict is a conclusive adjudication of the facts of the case, which neither the district nor this court should disturb.

The point is made by appellant that the court below erred in not permitting proof of particular instances of unchastity of the prosecutrix to go to the jury. But the character of the prosecutrix for chastity may be impeached only by general evidence of her reputation in that respect, and not by evidence of particular instances of unchastity. Greenl. Ev. § 214, and cases cited. And a review of the testimony in this particular shows, if anything, that the court in this case expanded the rule by admitting improper testimony in defendant's behalf.

The appellant contends that the instructions as given by the court tended to mislead the jury, and that the court below erred in not granting a new trial. The appellee insists that these instructions cannot be charged as erroneous, or considered by this court, for the reason that it does not appear from the record that exception to the decision of the court in giving these instructions was taken at the time of such decision, as required by section 3145, Comp. Laws 1897. But, waiving the force of this objection, we have looked carefully enough into the instructions so given to find no error. The only particular instruction pointed out as prejudicial to the rights of the appellant is as follows: “No. 11. You may consider, gentlemen, all that the prosecuting witness said immediately after the commission of the alleged crime, as to whether she complained of the rape or of an assault. You may consider this a circumstance affecting the question as to whether the defendant is guilty.” It is argued that, because the testimony contains no evidence whatever that the prosecutrix said...