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  • Hall McGhee, of Clovis, for applicant. John W. Armstrong, Atty. Gen., and James N. Bujac, Asst. Atty. Gen., for the State.
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Attorney(S)
  • Hall McGhee, of Clovis, for applicant. John W. Armstrong, Atty. Gen., and James N. Bujac, Asst. Atty. Gen., for the State.
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Smart Summary

Summary of Opinion: State v. Taylor, No. 3056 (N.M. Jan. 7, 1927)

Factual and Procedural Background

The appellant was convicted in the District Court of Curry County for the statutory rape of one Tollie Stone and was sentenced to a term of not less than 15 nor more than 20 years, although the verdict included a recommendation of clemency. New counsel on appeal did not represent the appellant at trial. At trial there were no exceptions to instructions given, no proffered alternative instructions, no motion for a directed verdict, and no motion for a new trial. The issues now urged on appeal (errors in the trial court's instructions and insufficiency of the evidence) were not brought to the attention of the trial court.

The essential factual allegations were: the prosecutrix reached age 16 on December 27, 1923; she had lived near the appellant and frequently visited his home during the summer of 1923, sometimes staying overnight; she testified that on or about July 1, 1923, while occupying a bed in the appellant's one-room house with appellant, his wife, and three children, she and appellant had intercourse and that the wife was awake and made no objection. Appellant and his wife denied this occurrence.

Corroborative evidence offered by the State included the prosecutrix's testimony of subsequent intercourse at unspecified times (one or more occurrences in a Clovis hotel after January 1924), letters and photographs taken from a packet at the time of arrest (which were later missing from the sheriff's desk and were proven only by the recollection of witnesses and the prosecutrix), and the fact that the pair were arrested together in Clovis on June 24, 1924. There was no clear evidence fixing dates of the letters or photographs that would establish intercourse prior to the prosecutrix's sixteenth birthday, and the packet could not be produced at trial.

Legal Issues Presented

  1. Whether alleged errors in the trial court's instructions were so fundamental as to permit reversal despite counsel's failure to raise them below.
  2. Whether the evidence, particularly the corroboration of the prosecutrix's testimony, was legally sufficient to support a conviction for statutory rape occurring before the prosecutrix reached the age of consent.

Arguments of the Parties

Appellant's Arguments

  • Counsel contended the instructions given at trial were defective and that those defects were fundamental, warranting reversal even though they were not raised in the trial court. Counsel relied on prior New Mexico authorities for that proposition.
  • Counsel emphasized the insufficiency and unsubstantial nature of the State's evidence and the lack of corroboration for the prosecutrix's testimony, arguing that without adequate corroboration the conviction could not stand.

State's Position

  • The record shows the State relied on the prosecutrix's direct testimony of the alleged July 1923 act, testimony of subsequent intercourse, letters and photographs recovered at arrest (although the packet was later missing), and inferences from the couple's conduct and arrest in Clovis.
  • The State introduced evidence of subsequent acts and correspondence to corroborate the prosecutrix and to show an adulterous disposition; the State did not fix dates prior to December 27, 1923 for the letters or photographs in the record presented at trial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State v. Garcia, 19 N.M. 414, 143 P. 1012 Permits appellate intervention to correct fundamental errors even when not called to the trial court's attention. The court analogized this case to Garcia to justify intervening to protect fundamental rights despite the absence of objections at trial.
Crawford v. Dillard, 26 N.M. 291, 191 P. 513 Cited with Garcia regarding the concept of fundamental error justifying appellate review. Used alongside Garcia to support the court's willingness to act despite lack of objections below.
State v. Ellison, 19 N.M. 428, 144 P. 10 Statement that, in the absence of statute, conviction may rest on uncorroborated testimony of certain witnesses—but the court there carefully reviewed the evidence and was convinced of guilt. The court distinguished Ellison by noting that Ellison involved a careful review and satisfaction as to guilt; here the court was not so convinced and therefore required corroboration.
State v. Armijo, 25 N.M. 666, 187 P. 553 Holds that prosecutrix's testimony was not substantial where there is no "single unequivocal fact" from a credible witness pointing unerringly to guilt. The court invoked Armijo to apply the established rule in New Mexico requiring corroboration sufficient to point to guilt; it found such corroboration lacking here.
State v. Clevenger, 27 N.M. 466, 202 P. 687 Affirms the Armijo view on the necessity of corroboration and its character in sexual-offense prosecutions. The court treated Clevenger as confirmation of the state's rule requiring substantial corroboration and applied it to find the evidence inadequate.
Mares v. Territory, 10 N.M. 770, 65 P. 165 Warns that affirming a conviction of rape without corroborative evidence or probabilities reasonably supporting the incidents would establish a dangerous precedent. The court cited Mares to underscore the danger of upholding a conviction in the absence of corroboration and reasonable probability, supporting reversal here.

Court's Reasoning and Analysis

The court began by noting procedural omissions at trial (no objections to instructions, no motions preserved) and the appellant's present attack on the instructions as fundamentally defective. Although counsel emphasized defectiveness of instructions, the court treated the insufficiency of the evidence—particularly the lack of corroboration of the prosecutrix's testimony—as the vital issue and focused its analysis there.

Key analytical steps the court took:

  • Recitation of the critical testimony: the prosecutrix's account of an alleged intercourse on or about July 1, 1923, in the one-room house where appellant, his wife, and children were present; denials by appellant and his wife.
  • Examination of corroborative materials: testimony about subsequent intercourse (some occurrences clearly after January 1924), letters and photographs found in a packet at arrest (the packet later missing), and arrests in Clovis. The court noted the State did not fix dates for letters and photos at trial, and the packet could not be produced; the only time references came from sheriff or deputy testimony that some writings were in 1924 (April–June).
  • Legal framing: the court relied on New Mexico authority establishing that, in prosecutions for sexual offenses where the prosecutrix's testimony is doubtful in probability or unsupported by corroboration, courts must insist on corroborative evidence — specifically, an unequivocal fact from a credible source pointing to guilt (citing Armijo, Clevenger, Mares and discussing Ellison).
  • Application to the facts: the court concluded there was no corroborating evidence of any unequivocal fact pointing unerringly, or even probably, to appellant's guilt of a rape occurring prior to December 27, 1923. The letters and photographs tended only to show intercourse at some time but did not fix dates prior to the prosecutrix's sixteenth birthday. The later acts and correspondence were too remote in time to corroborate the alleged July 1923 offense.
  • Standard of review and approach: recognizing it must weigh evidence to some extent to determine whether a miscarriage of justice occurred, the court stated it would weigh the prosecutrix's story in the scales of inherent probability rather than attempt a head-to-head credibility contest between her testimony and denials of appellant and his wife. The court concluded that without strong corroboration the prosecutrix's testimony had no weight for purposes of sustaining the conviction.
  • Decision to act despite procedural default: although the alleged trial errors were not preserved, the court invoked State v. Garcia and related authorities to justify appellate intervention to correct what it deemed a miscarriage of justice affecting fundamental rights.

Holding and Implications

Holding: The judgment of conviction is reversed and the cause is remanded for a new trial.

Implications:

  • The immediate practical effect is that the conviction and sentence are vacated and the defendant is entitled to a new trial on the charge.
  • The court applied existing New Mexico authorities concerning the necessity for substantial corroboration of a prosecutrix's testimony in sexual-offense cases; it did not purport to establish a new legal rule but relied upon and followed prior decisions (Armijo, Clevenger, Mares, Ellison, Garcia, Crawford) in reaching its result.
  • The court emphasized its willingness to intervene, despite the absence of preserved objections at trial, where a constitutionally significant miscarriage of justice appears — invoking precedent that allows correction of fundamental error to protect fundamental rights.

Disposition: Reversed and remanded for new trial. Parker, C.J., and Bickley, J., concurred.

Show full summary ...

STATE v. TAYLOR

OPINION OF THE COURT

WATSON, J.

Appellant was convicted of statutory rape upon one Tollie Stone. The verdict was accompanied by a recommendation of clemency. The sentence was not less than 15 nor more than 20 years in the penitentiary. Counsel appearing here did not represent appellant in the court below. There were no exceptions to the instructions given, no other instructions tendered, no motion for a directed verdict, and no motion for a new trial. The matters here urged as error, and that upon which we feel constrained to reverse the judgment, were not brought to the attention of the trial court.

[1] The judgment is here attacked for errors in the instructions given. It is urged that the defective instructions must have misled the jury and have caused the conviction, because of the slight probability that a jury, understanding the evidence and correctly and clearly instructed as to the law, could have found appellant guilty. So, it is urged, the error is fundamental, and should be corrected, though not brought to the attention of the trial court, citing State v. Garcia, 19 N.M. 414, 143 P. 1012; Crawford v. Dillard, 26 N.M. 291, 191 P. 513. In developing this point, counsel call attention to the unsubstantial nature of the state's evidence, and the ack of corroboration of the prosecutrix' testimony. While counsel do not rely directly upon this for a reversal of the judgment, we deem it the vital question in the case and shall not concern ourselves with the instructions.

The prosecutrix reached the age of 16 December 27, 1923. It seems that for some months prior to that date she lived with her father and mother about three-fourths of a mile from appellant's home. Appellant was 28 years old, and lived with his wife, 19 years old, and three small children, in a one-room house containing one bed. Outside there was a dugout in which appellant habitually slept with his little boy, while his wife slept in the bed in the house with the two little girls. It is admitted that during the summer of 1923, while they were neighbors, the prosecutrix was frequently at appellant's home, sometimes spending the night there, and that in January, 1924 (prosecutrix' father thought in March), her father and stepmother moved to Clovis, and that, before joining them, she remained a week or two with appellant and his family. Whatever took place during this visit was subsequent to the prosecutrix' sixteenth birthday.

The directly incriminating evidence was given by the prosecutrix, who testified that on or about July 1, 1923, she spent the night at appellant's home; that she occupied the bed with appellant, his wife and three children; and that while so situated she and appellant had intercourse, during which act appellant's wife was awake and made no objection. This occurrence was flatly denied by appellant and by his wife.

To corroborate this highly improbable narration, the prosecutrix was allowed to testify that she had had intercourse with appellant subsequently. The dates of such subsequent occurrences were not fixed. One or more of them was in a hotel in Clovis after January, 1924. Nowhere in the record is there any evidence of sexual acts between the parties prior to the prosecutrix' sixteenth birthday, except that of July. Except for the alleged occurrence in July, 1923, and the one or more in Clovis, after January, 1924, the only evidence upon which any inference of such acts might be based is the prosecutrix' affirmative answer to this question on cross-examination:

"Do you mean to tell the jury then that sometimes when you were over there you slept with Jewel Taylor, (appellant's wife) in the house and sometimes you slept with Mr. Taylor in that dugout?"

In connection with this answer it will be observed that no act of intercourse is testified to. No effort was made by the state to bring out the date when the prosecutrix claimed to have slept with appellant in the dugout. This might have occurred as well, or better, during the week or two that the prosecutrix visited in appellant's home after her sixteenth birthday. Following this question and answer, this occurred:

"Q. And Jewel Taylor knew that all the time? A. Yes; sure she knew it.

"Q. And she did not make any objection to it at all? A. No, sir."

The pair were arrested together in Clovis, June 24, 1924. They had been watched and followed at the instance of Mrs. Taylor's relatives. A charge the nature of which the record did not disclose, was lodged against the prosecutrix, under which she was held in custody until the evening of the second day, and then released under bond. The further proceedings against her, if any, are not disclosed. A packet was taken from appellant containing letters which purported to have passed between them, and two photographs showing them in somewhat intimate attitudes. The letters pointed to illicit relations between them. This packet had disappeared from the sheriff's desk before the trial and could not be produced; the contents being given from memory. There was no proof of the authenticity of the letters, except that of the prosecutrix. Appellant disclaims knowledge of the contents of the packet, claiming that at the time of the arrest the prosecutrix had given it to him, asking him to keep it for her. This she does not deny. There was no evidence fixing the dates of the letters or photographs, and no attempt seems to have been made by the state to present such proof. On cross-examination Sheriff Wood said that they were written in 1924, and Deputy Sheriff Hunter said those he noticed were written in April, May and June, 1924. The prosecutrix testified that she was in love with appellant, and that he had, throughout the course of their relations, promised to marry her.

That part of the prosecutrix' story which asserted that appellant had had sexual relations with her is, no doubt, corroborated by the letters and the photographs. But time was the gist of the offense of which appellant was convicted. The evidence of subsequent acts was admitted, not as showing independent offenses, but as showing an adulterous disposition. Its purpose was corroboration. Counsel question, but do not argue, its competency. If competent in this case, it was of little weight. Assuming that there had been a series of acts, some guilty (under the charge), and others not, it remained to the state to establish one act prior to December 23, 1923. That this man and girl should have fallen in love with each other, and should have had illicit relations when opportunity occurred, or could be arranged, is understandable; but such fact, if true, is hardly corroborative of the disgusting occurrence detailed in the record. Unless we are to believe that, there is no evidence of appellant's guilt of the charge.

This court has carefully considered the sort of corroboration which will support, in such a case, a woman's accusation against a man's denial. While it was stated in State v. Ellison, 19 N.M. 428, 144 P. 10, that "in the absence of statute a man may be convicted of rape on the uncorroborated evidence of a strumpet, or he may be convicted on the uncorroborated testimony of a girl below 10 years of age," it appears, also, that the court took unusual pains in its review of the evidence in that case, and not only satisfied itself that no errors of law had been committed, but was convinced of the defendant's guilt. In State v. Armijo, 25 N.M. 666, 187 P. 553, the testimony of the prosecutrix was held not to be substantial evidence to support the conviction, because there was not "a single unequivocal fact, established by a single witness, shown by his examination to be fair and willing and able to tell the truth, which pointed unerringly to the guilt of the defendant." This view of "corroboration" was taken in State v. Clevenger, 27 N.M. 466, 202 P. 687, and it was there considered the established rule in this state. In Mares v. Territory, 10 N.M. 770, 65 P. 165, it was said:

"On a conviction of rape, where there is no corroborating evidence nor a single corroborating circumstance, and where none of the incidents testified to as attending the commission of the offense are within the domain of reasonable probability, the affirmance of the conviction would be to establish a dangerous precedent."

There is no corroborating evidence in this case of any unequivocal fact pointing unerringly, or even probably, to appellant's guilt. The fact, if true, that the parties misconducted themselves in a hotel in Clovis subsequent to January, 1924, is far removed from a rape occuring in June 1923. The letters point unerringly only to the fact of former intercourse, but do not tend to fix a date prior to December 27, 1923. It was the theory of the state that appellant's wife was a willing witness of, if not a party to, the outrage. If that were true, it would be most remarkable — the same opportunity existing between July and December — if no repetition of it occurred. Remembering that the state claimed the right to show subsequent acts, and that such right was unchallenged, it is remarkable, if any other acts occurred while the prosecutrix was under the age of consent, that they were not shown.

[2] For the reasons stated, and under the authorities cited, the judgment in this case is against the law and the evidence, and ought, in justice, to be set aside. We hesitate only because the vital error was not brought to the attention of the trial court and is not directly urged upon us here. Nevertheless, we think this is a case like State v. Garcia, supra, for the interposition of this court to protect fundamental rights. True, this requires us to weigh the evidence, and in the Garcia Case it was said that would not be done. But we do not weigh the prosecutrix' story against the denial of appellant and his wife. We weigh it in the scales of inherent probability. Without strong corroboration, it has no weight at all. It is not corroborated. Without attempting to fix the cause, we conclude that the trial resulted in a miscarriage of justice which we think it our right and duty to correct by awarding a new trial.

The judgment will therefore be reversed and the cause remanded for new trial, and it is so ordered.

PARKER, C.J. and BICKLEY, J., concur.

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STATE v. TAYLOR
(Jan 7, 1927)