266 P. 922 | N.M. | 1928
[9] The prosecutrix, 15 years of age, was living with a 9 or 10 year old brother, and a sister 6 years old, and two older brothers. At 9 or 10 o'clock in the evening she and her youngest brother and her sister were alone and asleep in the house. Appellant, the husband of the prosecutrix' older sister, entered the house, came to prosecutrix' bed, and, on the latter calling out, seized her by the throat, threw her down on the floor, pulled her out of the house, took her some distance to a clump of bushes, and ravished her. By the prosecutrix' outcries, the children were aroused, and she told them to call her aunt, who lived but a short distance away. After the outrage the prosecutrix went immediately to her aunt and complained, naming appellant as her assailant. She was clothed in a nightgown. Her hair was disheveled. She was muddy and perspiring. Two weeks later a medical examination disclosed that prosecutrix' hymen had been ruptured, and that she was suffering from gonorrhoea of about two weeks standing. This is, in the main, the evidence on the part of the state.
[1] It is here vigorously urged that the evidence was insufficient to support the conviction. There was no motion *372
for a directed verdict and the sufficiency of the state's case was first questioned by motion for a new trial. Consequently appellant cannot demand, as of right, a consideration of his present contention. He invokes our inherent power to prevent fundamental injustice. State v. Garcia,
[2] By motion in arrest of judgment objection was made, for the first time, that the information was verified by the district attorney on information and belief. It was then, and is now, contended that this is a fatal defect, since Laws 1925, chapter 145, section 2, requires that "all information shall be verified by the oath of the prosecuting attorney, complainant or some other person."
In State v. Taylor
We are here met with a peculiar situation. The Oklahoma decisions hold that the statute in question applies only to misdemeanors, and that an information for a felony requires no verification whatever. This is based upon the fact that when the statute was adopted only misdemeanors could be prosecuted by information. The distinction, from a constitutional standpoint, is this: An information for felony is preceded by a preliminary examination. The citizen is not deprived of his liberty, nor put to trial, solely upon the information. There are proceedings and sworn facts antecedent. Such is not the case when only a misdemeanor is charged.
In New Mexico, however, the situation is different. The express purpose of chapter 145 was to "vitalize" the amendment to our Constitution permitting prosecution of felonies by information. Whether this difference changes the ordinary rule as to the binding effect of the Oklahoma decisions we do not pause to consider. In re Talley, supra, carefully examines the question on principle and authority. It is there held that the constitutional provision corresponding to our article 2, § 10, relative to arrests, searches, and seizures, and the statutory provisions corresponding to our Code of 1915, § 4428, relative to the issuance of warrants, and to our Laws of 1925, c. 145, § 2, here particularly in question, relative to verification of informations, are to be considered in pari materia; their general purpose being "the preservation of the personal *374 security and liberty of the individual, by forbidding the issuance of a warrant for his arrest except upon probable cause shown under oath, and by preventing as far as possible the institution of baseless and unfounded prosecutions." Such provisions do not deal with the essentials of an information as an accusation, and do not go to the jurisdiction. They merely prescribe rights of which an accused person is not to be deprived if he claims them at the proper time; but if he pleads and goes to trial upon an information, defectively verified, or not verified at all, he, in effect, "admits what the verification is intended to show, namely, that there exists probable cause to believe him guilty sufficient to warrant his arrest and trial on the charge." This reasoning is supported by decisions there cited from Kansas, Nebraska, Missouri, North Dakota, Minnesota, Montana, and other states, which fully satisfy us of its correctness. The question was therefore raised too late, and the contention must be overruled.
[3] After plea, and during the trial, appellant offered affirmative evidence to show that he had had no preliminary examination upon the present charge, and thereupon moved to dismiss for want of jurisdiction. The question was later raised by his motion in arrest. As we have just held in State v. Vigil
[4] The court overruled a motion for continuance, based upon the absence of witnesses Leandro Trujillo and Placido Pando; the former of whom, it was said, would testify that on the evening of the crime he was with the accused at a dance from the forepart of the night until after midnight, and that at the time of the crime (9 or 10 o'clock) he and the accused were three miles distant from the scene. The latter, it was said, would testify to the same facts as the former, and in addition, that the morning following the rape the prosecutrix, on being questioned by him, told him that she did not know who the guilty person was. The district attorney admitted that, if the witnesses were present, they would testify, respectively, as set forth in the affidavit. Thereupon the court overruled the motion. *375
It is here contended that the court erred in not requiring the district attorney to admit, not only that the witnesses would so testify, but that the facts to which they would so testify were true. The court acted under Code 1915, § 4461, which reads as follows:
"If the application for continuance is insufficient it shall be overruled; if held sufficient the cause shall be continued, unless the opposite party will admit that the witness, if present, would testify to the facts therein stated, in which event the cause shall not be continued, but the party may read as evidence of such witness the facts held by the court to be properly stated."
Appellant contends that, though this section was held applicable to criminal cases in State v. Emilio,
[5] The evidence of the physician who made the physical examination was objected to because the examination was so remote as to be without probative force. The lapse of two weeks would have some bearing on the weight of the evidence, but, in our judgment, did not render it inadmissible.
[6, 7] It is contended that the court erred in permitting to be read in evidence the testimony of a witness given at the preliminary hearing. This witness, according to the showing, was in Colorado. We do not think we are called upon to disturb, as an abuse of discretion, the action of the trial court. State v. Jackson,
[8] Certain objections are here made to instructions given and to those refused. But as no exceptions were *377
taken either to the giving or to the refusal, appellant is not in a position to urge them. Laws 1917, c. 43, § 37; State v. Davisson,
Finding no available error, the judgment will be affirmed.
It is so ordered.
PARKER, C.J., and BICKLEY, J., concur.