State v. Lewis

I dissent. Appellants stated their third point, upon which they relied for reversal, as follows:

"The trial court erred in admitting the testimony of Victoria Sisneros, for the following reasons: * * *

"(i) Because the trial court erred in admitting the testimony of the witness Victoria Sisneros as to the commission of other and former crimes for the reason that said crimes, if committed, were too remote to prove any of the issues or any of the acts charged in said Indictment."

And in their argument they said:

"The appellants will argue the subdivisions of Point No. III, a, b, c, d, e, f, g, h and i as a whole: * * *

"The State introduced, over the objection of the appellants, the testimony of Victoria Sisneros to the effect that two years previous *Page 221 to the time that the alleged crime of the appellants was committed, appellant Lewis performed an operation on the witness Victoria Sisneros in an attempt to produce an abortion (Tr. of Rec. p. 85, 86, 87, and 88) on the theory that it was admissible for the purpose of showing intent."

It is true that appellants' main argument was directed to the question of intent, but I believe that they dwelt upon the question of remoteness sufficiently to invoke a ruling of this court on that point.

This witness was permitted to testify, over general objections, that one of the appellants operated upon her nearly two years before for the purpose of producing an abortion, that at the time she was less than sixteen years of age, and that she had never recovered from the effect of the operation, and that she had brought into court a surgical instrument which the appellant used in the operation and left at the home of her mother. This speculum was exhibited to the jury in the cross-examination of the appellants. That this evidence was highly prejudicial is entirely obvious, and, in my opinion, clearly incompetent in any aspect of the case. There was no evidence of system or other crimes during the intervening two years. Upon objection being made to the testimony of this witness, the prosecuting attorney stated the substance of the offered testimony, and the general objection raised the issue as to whether the evidence of the other abortion was admissible.

The rule is stated in 3 C.J. 818, cited by Mr. Chief Justice Roberts in State v. Trujillo, 30 N.M. 102, 227 P. 759, as follows: "Specifying Grounds of Objection. It is also a well settled rule that, unless the objection could not have been obviated or the evidence was clearly incompetent in any aspect of the case, an objection to the admission of evidence must, to be considered on appeal, specifically state the ground or grounds on which it is claimed to be inadmissible, a general objection, as that it is incompetent, irrelevant, immaterial, etc., being insufficient; and that other grounds than those specified cannot be urged in the appellate court."

I am persuaded that the learned trial judge had sufficient notice of the issue raised, since, in his comment later in overruling the motion, he made no mention of defects in the objection, but clearly stated that in his opinion the evidence of this witness was admissible to show intent — a ruling supported by authority, but with which I am unable to concur. *Page 222