State v. Ellison

Citations

• 19 N.M. 428
• 144 P. 10

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. In a prosecution for rape, when details of the woman’s ■complaints to others have been elicited on cross-examination, these details may he more fully developed on redirect examination.</p> <p>P. 434</p> <p>2. The complaints of an outraged female may, or may not, he a part of the res gestae of the offense. The fact that the -details of a complaint are elicited from an outraged child by ■questions does not necessarily rob it of its voluntary character. In this case the recital of this child prosecutrix to her mother and others within ten minutes after the commission of the offense, although given in response to questions, held to be voluntary and admissible.</p> <p>P. 438</p> <p>3. A physician testified as an expert that the ordinary male organ could produce such, a condition as was found, present in the prosecutrix. Held, the evidence was properly admitted.</p> <p>P. 439</p> <p>4. Defendant closed his case without testifying, and the prosecution dismissed three witnesses held in reserve for rebuttal of his testimony who had left town. The next morning defendant moved to reopen the case for the purpose of testifying. Held, the court properly refused to reopen the case-under the circumstances.</p> <p>P. 441.</p> <p>5. A motion for an instructed verdict, based upon an erroneous view of the law, was properly overruled.</p> <p>- P. 441</p> <p>6. Where no foundation for impeachment of a witness is laid on cross-examination, impeaching evidence in rebuttal is properly excluded.</p> <p>P. 442</p> <p>7. Under a statute prescribing a certain penalty for a certain offense, it is not necessary for the court to inform the-jury as to the statutory penalty, the sole question for the jury being whether the defendant is guilty or not guilty.</p> <p>P. 442</p> <p>8. Instructions to the jury are to be considered as a whole- and where, so considered, they fully protect the defendant, he cannot complain.</p> <p>P. 442</p> <p>9. Where an assignment of e