State v. Richardson

On Motion for Rehearing. No new ground is stated for reversal in appellant's motion for rehearing. He again asserts that the district court erred in giving to the jury its instruction No. 8. He calls attention to the following statement in our opinion: "We do not find in the record any objection made by the appellant to the giving of this instruction." Literally this statement is not correct, but substantially it is. The objection to instruction No. 8 is as follows:

"Mr. Neal: Comes now the defendant and excepts to the Instruction No. 8 given by the Court for the reason we feel under the particular circumstances of this case the jury should be told that the bare charge of a woman against a man in connection with a case of this kind, uncorroborated by other witnesses tending to show the guilt of the accused should be properly presented, and we specifically request the Court in lieu of Instruction No. 8 to give Instruction No. 2 requested by the defendant. We understand it to be the law that a jury may convict upon the uncorroborated testimony of a woman in this type of case, but where portions of the story may be regarded by the jury as improbable considering the fact no complaint was made for some time, and other facts and circumstances in the case, we feel that a more detailed instruction upon the matter should be given by the Court in accordance with a ruling of the Supreme Court in various cases involving this question."

The objection made is not that instruction No. 8 did not correctly state the law, but that the defendant felt "under the particular circumstances of the case" that his requested instruction No. 2 should be given in lieu thereof. This in legal effect is no objection to instruction No. 8, as we have held that the trial court did not err in refusing to give to the jury requested instruction No. 2. For review exceptions to instructions must be specific. State v. Ascarate, 21 N.M. 191,153 P. 1036.

Appellant now raises seven specific objections to that instruction, none of which were presented to or ruled upon by the district court, and all or the most of which amount to the contention that nothing should be stated in the instruction regarding corroboration (or lack of corroboration) of the testimony of the prosecuting witness. As will be seen from the objection made, it was not contended below that this instruction did not correctly state the law. Indeed the tendered instruction contained practically the same language to which appellant now objects. It is as follows: "You are instructed that while in this jurisdiction it is not necessary that the testimony of the prosecutrix be corroborated by testimony of an independent character emanating from some outside source, etc. * * *" It is enough to say that not a single objection made to this instruction on motion for rehearing was presented for consideration below and no contention was made there that the instruction was legally erroneous. Questions not presented or passed upon by the district court (with certain exceptions) are not reviewable on appeal. Thomas v. Johns, 35 N.M. 240,294 P. 327.

While it is not error to give such instruction, we held in State v. Walton, 43 N.M. 276, 92 P.2d 157, that instructions upon corroboration were not required; and we doubt the wisdom of giving it over the objection of a defendant, notwithstanding it expresses a correct rule of law, and it is not error to give it. It may do unintended harm in this character of case. We are satisfied from a careful review of the evidence that the verdict of the jury was correct, and appellant was not harmed by the instruction.

Another contention made is without merit. The motion for a rehearing will be overruled.

SADLER, C.J., and MABRY, J., concur.

LUJAN, J., did not participate.