*1 Because of an absence of evidence show-
ing was entrusted with that defendant over took, money he his embezzle-
$100
ment conviction is reversed.
IT IS SO ORDERED. WALTERS, JJ.,
LOPEZ and concur. P.2d
STATE of New
Plaintiff-Appellant, HOWELL, Jr.,
Bernarr H.
Defendant-Appellee.
No. 3941. Appeals
Court of of New Mexico.
May Gen.,
Jeff Bingaman, Atty. Sammy J. Quintana, Gen., Fe, Atty. Asst. Santa Wes- Bobbitt, ley Carlsbad, R. Atty., Asst. Dist. plaintiff-appellant. for Carlsbad, Cherryhomes, Tom for defend- ant-appellee.
OPINION WOOD, Judge. Chief Defendant is charged with child abuse contrary 30-6-1(0(2), to § N.M.S.A.1978 (Supp.1978). We pro- do not consider the posed amendment to the information be- cause the record does not show that trial court has allowed the amendment. The trial court ruled that defendant’s wife permitted would not testify aas wit- for prosecution; ness appeal- ed. We discuss: the husband-wife lege; an issue not raised the trial court. *2 us, evidence, accepted by even if does Privilege
Husband-Wife
of the
relationship.
parentis
an in loco
not show
The mother of the child involved in this
case arranged
Fevig,
for defendant’s wife to care
five days a while the mother was parentis stand in loco person A is said to 3, 1978, attending April school. On the the a puts when he himself in situation of mother had fetched the child and returned parent by assuming obliga- the lawful to her Upon changing home. the child’s parental relationship the tions incident to diaper, the large mother observed a bruise through the formalities going on the child’s buttocks “over his whole rear necessary legal adoption. . to . .” reported police. This was to the However, person must intend to as- the bruise, police inquired When the about the child the status of a sume toward the defendant’s wife made a statement which parent. permit would an inference that defendant permit does not an in The evidence inflicted the The trial court bruise. ruled wife intended to ference that defendant’s testimony that the wife’s would be exclud- parent of to the child. assume the status ed, having defendant invoked the husband- properly ruled that the ex The trial court privilege. wife ception not been established. Accord had pertinent The portions of Evidence Rule reach the ingly, we do not 505 state: relationship parentis an in loco whether (b) privileges. General rule of within the of Evidence Rule spouse An in a criminal accused out that the husband- points The State proceeding prevent a privilege has to the severely criticized. privilege has been spouse other the testifying against should be nar- argues privilege It that . accused. construed, specifically in this rowly or more (d) Exceptions. privilege There is no exceptions privilege that this proceedings rule: in in The liberally should be construed. spouse charged which one with a crime necessity,” similar to argues that a “rule of against person property of the or proceedings in common law applied . . spouse or a child of either . privilege, should erode the extent of the applied. the child in- The court found of the the criticism child, adopt- volved was the natural neither Evidence, Wigmore, VIII lege. child, ed of either defendant stepchild nor 1961); 2 (McNaughton rev. Wein- and 2228 trial court ruled that the his wife. The Evidence, (1979). Wig- stein’s ¶505[02] exception in State failed to show that more, supra, page 221 states: 505(d)(1) was privilege longer adequate has no This was The contends the age reason for retention. In an which applicable defendant’s wife “stood rationalized, depolarized and has so far parentis” loco to the child. dechivalrized the marital relation and and ex- asserts that defendant’s wife “had willing spirit femininity as to be plenary authority over the child ercised complete legal equali- enact him, love, guide feed him with such atten- woman, ty tion, gives an 8 and chastisement as one privilege this marital is the merest ana- month to such im- baby, old and to attend legal theory chronism and an indefensi- portant baby’s medical matters as the practice. to truth in ble obstruction of the evi- needs.” This characterization criticism, Even with this various favorable to light dence is in the most states, State; New have in addition to a fair inference from evidence is evidentiary stating a hus simply babysit- adopted that defendant’s wife was a an Weinstein, However, supra, privilege. ter. the State’s characterization band-wife- This Court (Cum.Supp.1978). any way is to woman” is in destructive adopted evidentiary rules marital which the . Supreme Delgado, v originally Court. Alexander was protect. intended to That Thus, me, analysis, suggests seems to so free, concept is not Court under a “neces long legally politi- women remained *3 sity,” to rule as adopted. inferior, men, refuse to cally dependent upon and may be e., there situations privilege served a i. it purpose, valid where we must determine whether the helped marriage hold a together. Or Scott, See v. 90 N.M. not tes- might State also mean that wives should 256, Here, 561 (Ct.App.1977). P.2d 1349 are tify against they their de- husbands if facts are insufficient to raise pendent, unequal, subordinate or disturbed; the applicability that inferior status should not be rule; accordingly, whereas, no question there is if the wife achieves a status of construction. the marital worth equality, relation is not protecting. Issue Not Raised in the Trial Court considering I think the true basis for In an effort to defeat the privilege rejection of by is better stated by 505, conferred Slesinger: the rationale of Hutchins and cases, contends that in child privi abuse no no there is reason to sacrifice individual lege applies. The on State relies 32-1- justice by pretending privilege pro- 15(A) 32-l-16(A), N.M.S.A.1978. This family unity. motes argument encompasses statutes, these their to Evi ANDREWS, Judge concurring). (specially dence Rule validity 505 and their under opinion I with the result Inc., agree Ammerman v. and the Broadcasting, Hubbard however, reached, 307, 89 N.M. I have this com- (1976). further regard Herrera, 7, ment to Rule 505. v. P.2d 384 (Ct.App.1978). concerning No issue these criticism of the While husband court; statutes was raised in fashionable, its abo- lege is consideration of interjected these statutes into the may premature. lition time, appeal. for the first on society make The stresses of modern applicability of these will statutes not be attractive than ever before more 308; considered. N.M.Crim.App. intimacy a safe prospect harbour of Brakeman, (Ct. P.2d 795 spouses can where confide each App.1975). they say freely without fear that what The order of the is affirmed. trial court published compulsion. will be
IT Weinstein’s Evidence IS SO ORDERED. remedy The drastic of abolition not WALTERS, J., concurring. specially Rather, necessary. portion of the rule ANDREWS, J., concurring. specially relating not to “confidential communica- tion” between husband and wife should be WALTERS, concurring). Judge (specially Rules removed Rule New Mexico I agree and the with the result reached of Evidence. conclusion Wood that Judge of Chief authority court is to disre- power
gard I Rule 505 of of Evidence. the Rules intimate,
do not wish my concurrence
however, Wig- agree that I Professor with enact- apparent analysis
more’s recent
ments of “complete legal
equality