I cannot agree to the disposition which the majority make of this case. The reversal here arises out of the alleged error committed by the trial court in permitting the witness, Jimmy Brown, to testify while on the stand as a witness for the state, that he had theretofore entered a plea of guilty to the same charge upon which defendant was on trial, over what is held to be an appropriate objection made by the defendant. In the first place, I am not prepared to say that error was committed in permitting the witness to answer the question; on the contrary, I believe the question was proper. But if it were error the objection urged was not sufficient to move the court, as against its right to exercise its reasonable discretion in permitting the question to be propounded and answered, to strike. This would be true because of both (a) the time element involved in the invocation of the objection, and (b) the character of the objection itself. I appraise the objection to the question and answer as coming too late. If, indeed, as now suggested, the answer was given before an opportunity was afforded counsel for appellant to offer objection, this should have been shown and advanced by counsel when he invoked the court's discretion and asked that it be stricken. The record is wholly silent as to whether counsel did not have ample time to make his objection before this question was answered. We should not presume otherwise absent some showing to that effect.
But, in any event, I am unable to agree that the answer was prejudicial and, that but for this testimony, appellant would not have been convicted. There is ample evidence to support the conviction. It became necessary as an essential, if not the first, step in proving appellant received from Brown money knowing it had been stolen to prove first that Brown had stolen it, or had himself received it knowing it to have been stolen; and, an admission by Brown that he himself stole it, or that it was stolen by another from whom he received it, and that he knew as much, and *Page 421 further proof of facts of circumstances which would support a finding that appellant likewise knew this money so received by him was stolen, would be sufficient upon which to sustain a conviction. I am not persuaded that any of the exculpatory testimony of Brown, or the circumstances, would detract from this appraisal that there is ample evidence to support the verdict.
The authorities relied upon and cited in the opinion of the majority do not persuade me of their applicability here. Appellant was faced by the witness, every opportunity was afforded to appellant to inquire as to the circumstances under which he pleaded, and as to the fact whether or not he was guilty. I do not of course dispute the contention that it would not afford proof that the accused received stolen property knowing it to have been stolen merely to show by a record of conviction that the person from whom the property was received had been convicted of the theft. That would, for one thing, violate the constitutional guarantee that the accused is to be confronted with the witnesses against him. And this principle, enunciated in Kirby v. United States, 174 U.S. 47, 19 S.Ct. 574,43 L.Ed. 890, and approved by us in State v. Martino, 25 N.M. 47,176 P. 815, cited and relied upon by the majority, affords no support for the majority opinion. We are not here relying upon a "record" of conviction. Once that distinction is made we should have no trouble in appraising the situation. Certainly we should not say that such testimony was not admissible for any purpose absent a proper or timely objection that it was prejudicial.
I am also unable to agree that the objection stated after the question had been propounded and the answer given by Brown on the ground "that there is no relation to the issues in the case before the court" was sufficient. That was to say no more than that the question elicited an answer to something irrelevant or immaterial; it was not to say that to permit this question and answer would be highly prejudicial to appellant, the contention now urged. We have many times held that these general objections may not be relied upon. And we have never favored a relaxation of this salutary rule. See State v. McKnight, 21 N.M. 14, 153 P. 76; State v. Blacklock, 23 N.M. 251, 167 P. 714; Henderson v. Dreyfus, 26 N.M. 541, 191 P. 442; Nikolich v. Slovenska, etc., Jednota, 33 N.M. 64, 260 P. 849; Priestley v. Law, 33 N.M. 176,262 P. 931. And a case may even be "made out by incompetent evidence, if received without objection", we have held. Nikolich v. Slovenska, etc., Jednota, supra [33 N.M. 64, 260 P. 853]. The trial court was entitled to know whether appellant's objection rested upon something other than irrelevancy; that is to say, upon prejudice, for example. Appellant will not be permitted to so frame his objection in general terms as to leave with both the court and the district attorney the thought that prejudice was not to be relied upon, if, in fact, it could have been, which I do not concede. *Page 422
I do not doubt the sufficiency of the evidence as disclosed by the record to produce a conviction in the minds of the jury that the defendant was guilty of the offense charged. Certainly, it was permissible to prove that Brown had stolen property in his possession, whether by his own admission of the charge, by a plea of guilty, or by other competent evidence. That fact, of course, when shown, would not be admissible to prove that appellant thereafter knowingly received the stolen money (Donegan v. State, 89 Tex.Crim. R., 229 S.W. 857); but the record does not disclose, as I have said, that the answer was elicited for the purpose last mentioned. It can be presumed that it was for the purpose, rather, of showing the first essential element of the crime, viz., that when Jackson received the money from Brown he received stolen money. Whether he knew it to have been stolen becomes a different matter, and proof of such knowledge must, necessarily, rest upon additional and different evidence.
It cannot be said that the one question propounded to Brown must be so all-inclusive that it must anticipate an answer that would at one and the same time afford proof of both elements — that the money received was stolen and that appellant knew as much at the time he received it. I know of no rule which would require so much; but we are familiar with the contrary rule which requires that a question be so framed that it may be answered affirmatively without requiring of the witness an explanation that such answer is meant to cover only a portion of the question.
Persevering further, after the answer given and so objected to, the district attorney properly sought to show with what evidence was available, we will assume, that appellant not only had guilty knowledge but he actually may have participated in the theft. There is nothing to indicate that either the district attorney or the trial court were unaware of the necessity of such proof as to knowledge on the part of the accused, in addition to proof that the money was in fact stolen, to sustain a conviction.
Must it not be said that an admission from the party from whom the person charged received the property that he had passed it on to the accused knowing it to have been stolen would be evidence that it was stolen property that was involved? The next, and vitally necessary step is, of course, to show guilty knowledge on the part of the accused when he receives it. Property need not "[retain] its stolen character from the time it was stolen until it was delivered to the [accused]." Hamilton v. State, 129 Fla. 219, 176 So. 89, 91, 112 A.L.R. 1013.
It seems to me that we would recognize a difference without a distinction to say, as I understand the majority is willing to say, that while the witness might have been asked whether he had not stolen or received the money in question knowing it to have been stolen, he could not be asked *Page 423 the equally, if not more, pertinent question, whether he had not pleaded guilty to the crime and received his sentence.
I believe that under the circumstances here present, where Brown and appellant were shown to have been together at the time; and where appellant took Brown by the arm after Brown had gotten his hands on the money saying to him (Brown) that he wanted to speak to him "in the back", and leading Brown away from the crowd and demanding his "part of the money", and where we have the further fact that appellant first denied any knowledge of the money taken, and later admitting knowing of it as well as getting part of it, affords ample evidence to support the conviction.
For the reasons stated, I dissent.
BRICE, J., concurs.