{ "id": 4736296, "name": "STATE v. WHITENER", "name_abbreviation": "State v. Whitener", "decision_date": "1918-08-27", "docket_number": "No. 2219", "first_page": "20", "last_page": "24", "citations": [ { "type": "official", "cite": "25 N.M. 20" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "56 Pac. 81", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8586461 ], "opinion_index": -1, "case_paths": [ "/idaho/6/0496-01" ] }, { "cite": "65 Pac. 165", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "50 Pac. 257", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": -1 }, { "cite": "16 N. M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4684406 ], "opinion_index": -1, "case_paths": [ "/nm/16/0615-01" ] }, { "cite": "6 N. M. 464", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4650834 ], "opinion_index": -1, "case_paths": [ "/nm/6/0464-01" ] }, { "cite": "3 N. M. 143", "category": "reporters:state", "reporter": "N.M.", "opinion_index": -1 }, { "cite": "2 N. M. 292", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 3285123 ], "opinion_index": -1, "case_paths": [ "/nm/2/0292-01" ] }, { "cite": "144 Pac. 10", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "opinion_index": -1 }, { "cite": "19 N. M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4704793 ], "opinion_index": -1, "case_paths": [ "/nm/19/0428-01" ] }, { "cite": "111 Am. St. Rep. 577", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "39 S. W. 63", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "36 S. W. 619", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "137 Mo. 463", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 924881 ], "opinion_index": 0, "case_paths": [ "/mo/137/0463-01" ] }, { "cite": "58 Am. Rep. 530", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "10 N. E. 880", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "104 N. Y. 481", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2206957 ], "opinion_index": 0, "case_paths": [ "/ny/104/0481-01" ] }, { "cite": "58 Am. Rep. 656", "category": "reporters:state_regional", "reporter": "Am. Rep.", "opinion_index": 0 }, { "cite": "3 S. W. 753", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "22 Tex. App. 5529", "category": "reporters:state", "reporter": "White & W.", "opinion_index": 0 }, { "cite": "30 N. W. 723", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "67 Wis. 552", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8706769 ], "opinion_index": 0, "case_paths": [ "/wis/67/0552-01" ] }, { "cite": "14 Pick. (Mass.) 5518", "category": "reporters:state", "reporter": "Pick.", "opinion_index": 0 }, { "cite": "37 Am. St. Rep. 360", "category": "reporters:state", "reporter": "Am. St. Rep.", "opinion_index": 0 }, { "cite": "556 N. W. 862", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "97 Mich. 484", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1529247 ], "opinion_index": 0, "case_paths": [ "/mich/97/0484-01" ] }, { "cite": "24 Mich. 6", "category": "reporters:state", "reporter": "Mich.", "opinion_index": 0 }, { "cite": "448 Pac. 357", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "32 Or. 43", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 2258925 ], "opinion_index": 0, "case_paths": [ "/or/32/0043-01" ] }, { "cite": "144 Pac. 10", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "19 N. M. 428", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4704793 ], "opinion_index": 0, "case_paths": [ "/nm/19/0428-01" ] } ], "analysis": { "cardinality": 473, "char_count": 7222, "ocr_confidence": 0.482, "pagerank": { "raw": 2.0978472364168778e-07, "percentile": 0.7612856965792214 }, "sha256": "9de69e4b65524df005c3bbe17a4eca6631f641f346b22e1d162cf233673401ef", "simhash": "1:1ff5d522ab2bf1b3", "word_count": 1273 }, "last_updated": "2023-07-14T15:10:41.026325+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Parker and Roberts, JJ., concur." ], "parties": [ "STATE v. WHITENER." ], "opinions": [ { "text": "OPINION OP THE COURT.\nMECHEM, District Judge.\nThe appellant, Whitener, was convicted of statutory rape, and he appeals.\nThe denial by the court of his motion for continuance is his first assignment of error. The ground for this motion was the absence of a material witness from the state; but the trial court found from the record that the witness had been served with a subpoma in the cause and that he had willfully disobeyed the order of the court and had moved to Arizona, where he resided at the time of the trial. The court was justified in denying the motion for continuance, there being no likelihood of defendant\u2019s being able to secure the witness\u2019 attendance at a later day.\nThe court permitted the prosecutrix to testify to other acts of sexual intercourse with defendant, previous to the one charged in the indictment. The defendant by seasonable objection raises the point that the evidence was inadmissible.\nThe authorities are almost unanimous that such evidence is admissible in prosecutions for statutory rape. 33 Cyc. 1483. In State v. Robinson, 32 Or. 43, 448 Pac. 357, the court says:\n\u201cIt Is next insisted that the court was in error in allowing the prosecution to give evidence tending to show more than one act of criminal intercourse between the defendant and the prosecutrix. The reason assigned for the objection to this testimony is that it violates the rule which prohibits evidence of a distinct crime unconnected with that alleged in the indictment to be given against the prisoner. As a general rule, the principle invoked is unquestioned, although there are in fact -many exceptions, which it is unnecessary to attempt to point out at this time, as the authorities fully sustain the competency of the evidence offered and admitted in this case, not for the purpose of proving a different offense, but to show the relation and familiarity of the parties, and as corroborative of the prosecutrix\u2019s testimony concerning the particular act relied upon for a conviction. Strang v. People, 24 Mich. 6; People v. Abbott, 97 Mich. 484, 556 N. W. 862 (37 Am. St. Rep. 360); Com. v. Merriam, 14 Pick. (Mass.) 5518; Hardtke v. State, 67 Wis. 552, 30 N. W. 723; Taylor v. State, 22 Tex. App. 5529, 3 S. W. 753 (58 Am. Rep. 656); People v. O\u2019Sullivan, 104 N. Y. 481, 10 N. E. 880 (58 Am. Rep. 530).\u201d\nTbe defendant questions tbe sufficiency of tbe state\u2019s evidence to prove tbe corpus delicti. \"We bave read tbe evidence carefully and find no basis for that conclusion. Tbe details of the prosecutrix\u2019s testimony were such as to convince one that she knew wbat she was talking about, and if she bad had a long period of experience, as she testified, of tbe same kind, at defendant\u2019s bands, any doubts arising from innocent ignorance concerning such matters must, long before tbe commission of tbe act charged, bave vanished.\nTbe defendant, believing that tbe prosecutrix bad told another person of defendant\u2019s relations with her and fearing violence, placed himself under tbe protection of one Payne, and admitted to Payne, so Payne testified, that he (defendant) had slept with the prosecutrix.\nThe point is made that this was a confession, made under duress, but as no duress was shown, as the confession was purely voluntary, and as the defendant was not in custody, there seems to be no valid objection to it.\nThe error assigned to the court\u2019s refusal to give an instruction on the subject of corroboration is not well taken in view of State v. Ellison, 19 N. M. 428, 144 Pac. 10.\nNo exception was saved in the lower court to instruction No. 9, and it cannot be considered here.\nThere is no error assigned to the failure of the state to establish the prosecutrix\u2019s age, but it is urged in the briefs. She testified that she was 14 years of age and based her statement on what her half-sister told her, with whom she had lived since she was 4 years of age. The evidence was competent, and the jury was the judge of its weight, as well as of her credibility. State v. Marshall, 137 Mo. 463, 36 S. W. 619, 39 S. W. 63; Grand Lodge A. O. U. W. v. Bartes, 111 Am. St. Rep. 577, note. The judge and jury also had the opportunity of satisfying themselves of prosecutrix\u2019s age from her appearance.\nWe are asked to reverse, this case on the facts. That the state made out its case by competent evidence, there can be no doubt. It was for the jury to say whether or not it believed the state\u2019s witnesses. If it did, it was its duty t'o convict; if not, to acquit. There is nothing in the record to show that the verdict was the result of bias or prejudice against the defendant. From all that is shown he had a fair trial and was ably defended. The function of an appellate court is to correct errors of law, and only where, in a given case, there is such a lack of facts as is necessary to establish a crime, is there error within this court\u2019s review.\nFinding no error, the judgment of the lower court will be affirmed, and it is so ordered.\nParker and Roberts, JJ., concur.", "type": "majority", "author": "MECHEM, District Judge." } ], "attorneys": [ "W. R. McGill, of La Lande, T. M. Noble, of Clovis, K. W. Edwards, of Ft. Sumner and W. A. Gillenwater, of Clovis, for appellant.", "Harry L. Patton, Attorney General and Milton J. Helmick, Assistant Attorney General, for the State." ], "corrections": "", "head_matter": "(No. 2219.\nAug. 27, 1918.)\nSTATE v. WHITENER.\n(Rehearing Denied Nov. 27, 1918.)\nSYLLABUS BY THE COURT.\n1. Under facts stated, there was no abuse of discretion in denying motion for a continuance. P. 21\n2. Evidence \u00a1tending to show more than one act of criminal intercourse between the accused, and the prosecutrix is admissible to show the relation and familiarity of the parties and as corroborative of the prosecutrix\u2019s testimony concerning -the particular act relied upon for a conviction. ' P. 21\n3. As no corroboration of prosecutrix is necessary to uphold conviction for rape (State v. Ellison, 19 N. M. 428, 144 Pac. 10), a requested, instruction on the subject of corroboration, contrary to the rule, is properly refused. P. 23\n4. Where no exception was saved to a given instruction, it cannot be considered on appeal. P. 23\n5. Whether prosecutrix was under age of consent, or not, is a question for the jury. P. 23\n6. Where verdict is supported by substantial evidence, same will not be disturbed on appeal. P. 23\n7. Where defendant, believing that prosecutrix had told of his relations with her, put himself under - protection of third person and admitted to such person that he had slept with prosecutrix, the confession was purely voluntary and admissible. P. 22\nAppeal from District Court, De Baca County, McClure, Judge.\nSamuel Whitener was convicted of statutory rape and he appeals.\nAffirmed.\nW. R. McGill, of La Lande, T. M. Noble, of Clovis, K. W. Edwards, of Ft. Sumner and W. A. Gillenwater, of Clovis, for appellant.\nTbe court erred in denying tbe motion of tbe appellant for a continuance.\nTerr v. Kelly, 2 N. M. 292; Terr v. Kinney, 3 N. M. 143; Terr v. Faulkner, 6 N. M. 464; Terr v. Torres, 16 N. M. 615.\nUncorroborated testimony of the prosecutrix is insufficient to sustain conviction for rape where defendant under oath denies the charge.\nSewers v. Terr. 50 Pac. 257; Mares v. Terr. 65 Pac. 165; State v. Baker, 56 Pac. 81.\nHarry L. Patton, Attorney General and Milton J. Helmick, Assistant Attorney General, for the State.\nProof of acts prior to act charged in indictment is admissible. Cyc. 1438.\nUncorroborated testimony of prosecutrix is sufficient to sustain conviction. State v. Allison, 144 Pac. 10." }, "file_name": "0020-01", "first_page_order": 36, "last_page_order": 40 }