3. Criminal law 768 (1)-Rape 59(14, 17)-Refusal of cautionary instruction on ease of bringing accusation and difficulty of defending and extent of resistance and force held error. a case of this character, and therefore there isation concerning specific acts of moral misnot sufficient evidence to sustain the verdict. conduct and specific acts of wrongdoing of such witness to affect the credibility of such witness and the weight to be given to his or her testimony, but it is equally well settled that the cross-examiner is bound by the answers given to such questions and cannot In a case of this kind, it is error to refuse produce other and independent evidence with a proper tendered instruction of a cautionary reference to such matters beyond that given character advising the jury of the nature of the by the assailed witness; otherwise, the numkind may be lodged and the difficulty of defend- ber of collateral issues presented might being against the same, and the necessity and come so numerous and so confuse the real extent of resistance required of the prosecu- issues as to prevent their due consideration trix as well as the force used to overcome the and correct determination. The rule here same, where no proper instruction covering the applicable was stated by this court in State subject is contained in the court's general in-v. Perkins, 21 N. M. 135, 153 Pac. 258, in the case, the ease with which an accusation of this struction. Appeal from District Court, San Miguel County; Leahy, Judge. following language: "Complaint is also made of the refusal of the trial court to permit the appellants, on cross-examination of Mrs. Kubena, a very im Jerome Clevenger was convicted of rape, portant witness for the state, to ask the witand he appeals. Reversed and remanded, with directions to award new trial. O. O. Askern, of Santa Fé, and Chas. N. Higgins, of East Las Vegas, for appellant. H. S. Bowman, Atty. Gen., and A. M. Edwards, Asst. Atty. Gen., for the State. BRATTON, District Judge. Appellant was convicted of the crime of rape alleged to have been committed upon one Daisey Agned Madole, and was sentenced to serve a term of not less than five nor more than seven years in the penitentiary, from which he has perfected this appeal. ness as to specific acts of wrongdoing on her lished." This rule was again announced and this case cited with approval in State v. Bailey, 198 Pac. 529. We think the court erred in permitting such rebuttal evidence, and therefore sustain this assignment of error. [1] During the trial Mrs. Harriet Fox became and was a very material witness in be half of the appellant, testifying to certain facts which strongly contradicted the testimony of the prosecutrix. Upon her cross-examination, certain questions were propounded to her by which it was sought to prove that prior to her marriage to her present husband, Gradon Fox, she had lived with him in a state of adultery at Pratt, Kan., and further that prior to her said marriage, she had [2] By four separate assignments of error, received congratulations from certain friends appellant challenges the verdict of the jury upon their supposed marriage of herself and and urges a reversal of the case for lack of her said husband. She denied each and all sufficient evidence to sustain the same. A of these acts on her part. Upon rebuttal decision upon these assignments requires a and over proper objections of the appellant, brief review of the evidence adduced. It apthe state was permitted to prove by C. M. pears from the record that the prosecutrix is Gilmore and Mrs. C. M. Gilmore that said a woman 25 years of age and weighs 130 witness had lived in such state of adultery, pounds; that at the time of the alleged and by J. R. Massie that she had received crime, she and her husband were tenants of such congratulations. This action on the part appellant residing in a house owned by him of the trial court forms the basis of appel- situated about 30 feet from the residence oclant's first assignment of error. We think cupied by him and his family; that on the this constituted impeachment of the witness opposite side of the house so occupied by upon collateral and immaterial matters by the prosecutrix and her husband was a resiextrinsic and independent evidence beyond dence about 12 feet away, which was then octhat given by the witness herself. It is the cupied by a family named Lorenzen; that settled law in this jurisdiction that a wit- said house so occupied by the prosecutrix ness may be interrogated upon cross-examin- was in a thickly settled part of the residen For other cages see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) The improbabilities of the detailed affair thus outlined, when considered in connection with her admitted conduct with and toward appellant and his wife after she says she had been ravished, and its variance with human experience, are obvious and need no analysis or prolix discussion. The necessity of corroboration of a prosecutrix in a case of this character was stated by this court in State v. Ellison, 19 N. M. 428, 144 Pac. 10, as follows: "It is of course true that in a sense, the ed. That is, that it must bring together a number of surrounding facts and circumstances which coincide with and tend to establish the truth of her testimony. Without such surrounding facts and circumstances, the bald man would be so devoid of testimonial value statement and charge of a woman against a as to render it unworthy of belief, and to cause it to fail to meet the requirements of the law, namely, evidence of a substantial character. In this sense there must, of course, be corroboration. some of the states, by reason of the terms of the statute, corroboration must of testimony of an independent character, disconnected from the testimony of the prosecutrix. It is not in this sense, in this jurisdiction, that the prosecutrix must be corroborated." In come from some outside source in the form tial section of the city of Las Vegas, facingversation seems to have been concerning a and bordering upon one of its well-traveled money settlement of the affair. streets. The prosecutrix testified that on the morning of June 1, 1921, while she was clad only in her nightgown with a bungalow apron over it, appellant came into her house, stating that he wanted to see a place in the roof of the house that had been leaking; that she showed him the place and he then grabbed her, threw her down, and ravished her. She admits she did not make any outcry, her only explanation for not doing so being that she was too frightened; that her clothing was not torn, and neither was appellant's; that she was not bruised, scratch-testimony of a prosecutrix must be corroborated, nor hurt except a small lump about the size of a pea that was then in her right breast afterwards became enlarged to about the size of a marble; and that a small place in her private parts became sore; that one Doctor Fleming examined such sore spot. She admits that on Friday afternoon-this had occurred on Wednesday morning-appellant again came to her home while Mrs. Fox was there visiting her, and he then made some further examination regarding the leak in the roof of the house, during which time the prosecutrix showed him the place that had leaked, and she also talked with him concerning her making a trip to Santa Fé, whereupon he told her the trains had not been running on account of a washout and suggested she might telephone from his residence to ascertain if they were again running on schedule; that after he left, she told Mrs. Fox she would not go to appellant's house and use his telephone while his wife was away, as she might return and find her there. She further admits that on Thursday after she had been assaulted on Wednesday morning, she asked appellant's wife if her (prosecutrix's) brother might use her sewing machine, and also on the same day she went to the back door of appellant's residence and there asked appellant's wife how to find Mr. Drake's office, as she wanted to make some inquiry regarding her pass to Santa Fé. It further appears from the stenographic notes taken by the official court stenographer of the fourth judicial district, that at the preliminary hearing in this matter, which was held just one week prior to the trial of this case in the district court, the prosecutrix testified to several vital matters which positively contradicted her testimony given upon the trial in the district court. This, we think, is a fairly complete and accurate résumé of the testimony of the prosecutrix. We have carefully examined the entire record and find there was practically no testimony offered which could be considered corroborative of difficulty in defending against it. It further this evidence. Her husband did testify to certain conversation which he contends he had with the appellant six days after the alleged offense, but the burden of such con202 P.-44 Again, in the case of State v. Armijo, 25 N. M. 666, 187 Pac. 553, referring to the Ellison Case, the court further said: "With this statement of the position of the court upon this subject we are entirely satisfied at this time, and see no reason to depart fact, established by a single witness, shown by from it. If there were a single unequivocal his examination to be fair and willing and able to tell the truth, which pointed unerringly to the guilt of the defendant, we should say that the verdict should not be disturbed. There son the verdict is not supported by any subis no such fact in this record, and for that reastantial evidence." We think the prosecutrix in this case is not corroborated as required under the law of this state as announced in the two decisions referred to. [3] Appellant further complains of the refusal of the trial court to give to the jury his requested instruction numbered five which was a cautionary character, advising the jury that the crime charged was a heinous one, and well calculated to create a prejudice in their minds against the accused, and calling their attention to the ease with which such an accusation could be lodged and the stated that the voluntary submission or reluctant yielding on the part of the prosecutrix to the lust of the appellant would not support a verdict of guilt, but that she must have resisted to the extent of her power. An instruction similar to the one here requested was tendered and refused in the case of Reynolds v. State, 27 Neb. 90, 42 N. W. 903, 20 Am. St. Rep. 659, which was held to be reversible error. A very accurate statement of the general text covering this subject may be found in the following language in 22 R. C. L. p. 1229, § 66: "On a trial for rape, where the evidence is conflicting as to resistance and force, the trial court should in its instructions caution the jury that prejudice is liable to be aroused against the accused because of the heinous nature of the crime charged, and it is customary to caution the jury that because of the difficulty of disentanglement from so heinous an imputation as compared with the ease with which it can be fastened on reputable persons, the utmost discretion should be exercised to avoid attaching undue weight to the uncorroborated accusation of a prosecutrix." The instructions given did not cover this phase of the case, and we think the court erred in refusing to give the tendered re quested instruction. Other assignments of error are presented, but we think it is unnecessary to discuss them, as they pertain to matters which will not likely occur upon a subsequent trial. For the reasons stated, the judgment of the trial court will be reversed and the cause remanded, with directions to award a new trial and it is so ordered. RAYNOLDS, C. J., and PARKER, J., con cur. (27 N. M. 454) M. J. Helmick, of Albuquerque, for appellant. George S. Downer and Simms & Botts, all of Albuquerque, for appellees. DAVIS, J. This is a proceeding to cancel a tax deed and subsequent conveyances based upon it. It was decided by the trial court upon a demurrer alleging that the complaint did not state facts sufficient to constitute a cause of action, this demurrer being sustained. The facts are therefore admitted, and we state them from the complaint. On January 1, 1908, John Schroeder was the owner of 160 acres of land described as the S. W. 4, S. 17, Tp. 9 N., R. 3 E., N. M. P. M., the land being located in Bernalilwhich he owned at that time. For the year lo county. This was the only 160-acre tract 1908 Schroeder made a return for taxation purposes in Bernalillo county in which he included this 160 acres of land, but through inadvertence, error, and mistake he incorrectly described the land, the description set out in his tax schedule, literally read, being as follows: tp. 7 Range No. Acres 5E 160 Sec. Tp. 17 ^ Precinct No. 1 SW This description was intended by Schroeder to identify and describe the 160 acres which he owned and was a bona fide attempt on his part to comply with the law. The assessor in making up the rolls for the year 1908 did not copy exactly the return made by Schroeder, but entered an assessment against him for the "SW, Sec. Tp. 17, R. 5 E." Under this assessment Schroeder paid the taxes levied, intending thereby to pay the taxes upon the 160 acres of land which he owned, and this SHACKLEFORD v. McGLASHAN et al.* payment was accepted by the treasurer of (No. 2561.) (Supreme Court of New Mexico. Nov. 17, 1921.) (Syllabus by the Court.) Taxation 530-Good-faith payment of assessment erroneously describing land is a defense against sale on second assessment. Payment in good faith of taxes, although the assessment on which the payment is made erroneously describes the land intended to be assessed, is a defense against a sale and tax deed based upon a second assessment of the same land with a proper description. Appeal from District Court, Bernalillo County; Hickey, Judge. Action by W. H. Shackleford against A. E. McGlashan and another to cancel a tax deed and subsequent conveyance based on it. Demurrer to complaint sustained, and the plaintiff appeals. Reversed and re manded. Bernalillo county. The land described in this assessment would be located in Sandoval county, and not in Bernalillo county, in which the assessment was made. For the year 1908 the assessor made an additional assessment against "unknown owners," and there correctly described and assessed the lands owned by Schroeder as the "S. W. 4, Sec. 17, Tp. 9, R. 3 E." Schroeder had no actual notice or knowledge of this assessment. After Schroeder had paid the taxes under the assessment above set out, containing the incorrect description of his lands, the land was sold under the assessment to "unknown owners," and such proceedings were had that the tax title thus instituted became vested in the defendant A. E. McGlashan under a tax deed from the county. Later McGlashan and his wife conveyed the land by warranty deed to D. V. Wardall, who, with his wife, and likewise by warranty deed, conveyed the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied. (202 P.) premises to J. J. Weisendanger, one of the appellees here. The assessment to "unknown owners," the sale made under it to McGlashan, and the subsequent conveyances to Weisendanger all appear to be regular. The tax sale was made during the year 1909, and is therefore governed by the provisions of section 25, c. 22, Laws 1899, which has frequently been before this court, the latest case being Chisholm v. Bujac, 202 Pac. 126, decided at this term. This section expressly permits a tax sale made under that law to be attacked on the ground that the tax had been paid before the sale. In this respect it is merely declaratory of the rule which would exist without it. Nonpayment of the tax is an essential foundation for every tax sale. its face, will avoid a sale under another equally regular, a question which arises in the ordinary case of double assessment. The authorities on such questions are uniform to the effect that payment in fact may be shown, and there would seem to be little chance for argument to the contrary. Here the question is somewhat different. We are determining whether payment under an assessment, invalid because it fails to describe the land sufficiently for identification, is good payment on the land intended to be assessed, so as to avoid a sale under another assessment with a proper description. The primary purpose of every law for the enforcement of tax liens is to obtain payment of the tax. The end desired is the obtaining of the funds necessary for govern obtained, the primary purpose of the law has been accomplished, and this is true whether or not payment is made with technical accuracy. While the law provides for a tax sale and allows a purchaser at such sale to acquire title, divesting the former owner, that is but a method by which the county obtains its funds. The owner of the land having failed to pay, the county obtains its money from another. Under our statutes the The question in this case is whether pay-mental purposes. If that payment has been ment of the tax has in fact been shown, or, in other words, whether payment under this assessment which improperly described the land was good payment on the land he owned. It is conceded that appellant intended by this payment to pay the tax on his land and believed that he was doing so. Since the treasurer of the county accepted the money, it must be assumed that he understood it was payment on the same land, for he certainly would not knowingly accept the pay-purchaser at such a sale is amply protected. ment of taxes upon land not within his coun- If the sale is invalid for the reason that ty. We have, therefore, a case where the no tax is in fact due, he recovers back from owner has paid money to the county as taxes the county the amount which he paid to it. on a certain piece of land, and the county If his sale is valid, he obtains under it has accepted it as payment on that land, property usually worth many times the although in fact the land was not properly amount which he pays. He has all to gain described on the tax roll and can only be and nothing to lose. The remedy as against identified by proof of circumstances wholly the owner of the land is a harsh one in any apart from the roll itself. event, and to hold that, where he has in good faith attempted and intended to return his land and to pay the taxes upon it, he must nevertheless lose it because of a failure to obey the provision of law which says that his assessment must properly describe the land, is to lay down too severe a rule. While it is true that the result would come from his own fault, the forfeiture of his property would be punishment far greater than the offense. The assessment under which this tax was paid was not a valid one. It would not have supported the tax sale based upon it. On the record presented to us the assessment to "unknown owners" was a valid assessment, and the tax sale based upon it was regular on its face. The conclusion that this assessment was valid necessarily follows from the decision of this court in Knight v. Fairless, 23 N. M. 479, 169 Pac. 312, in which this court held that an assessment of a specific It being admitted in this case that piece of property to "unknown owners" Schroeder acted in good faith, intended to could not be attacked by proof that the own-return his land, intended to pay the taxes er had attempted to include it in another assessment which did not describe it. We see nothing in the present record to differentiate that case from this one in that regard. But Knight v. Fairless did not involve the question of the payment of the tax. Here we are determining whether the tax was in fact paid, not primarily whether the assessment to "unknown owners" was good, and upon that point the former case is not authority. We are not presented with the issue as to whether payment may be shown to avoid a tax sale based upon a record which incorrectly shows the tax unpaid, nor as to whether payment under one assessment, valid on upon it, and believed that he had done so, and that the county authorities accepted the payment with the same understanding, we hold that it was good payment in fact upon the 160 acres of land which he then owned, and that this payment was a bar to any sale under the second assessment to “unknown owners" may be shown in avoidance of it, and when so shown defeats it. While cases presenting this exact question are few, we are not without authority for this decision. In Kellogg v. McFatter, 111 La. 1037, 36 South. 112, the facts were that Kellogg was the owner of 60 acres of land in the N. W. 4 of section 20. For the year 1897 there was an attempt to assess | 15," and under this assessment the property this land, but it was described as "lying in was sold. For the same year there was asthe N. E. 4" of that section instead of the sessed to L. A. Thomason land as follows: N. W. 4. Another assessment was made to "Number of acres, 160, $200." This assessA. E. Minor of a portion of the N. W. 4ment contained no further description of the of section 20, which included the Kellogg land. Thomason paid the taxes under this land, and under that assessment the land assessment and proved that the property on was sold for taxes. Before this sale Kellogg which he intended to pay was the same as had paid the taxes under the assessment that assessed to Gus Bender; Thomason not containing the erroneous description. The being the owner of any other 160 acres of court held that the payment by Kellogg on land. There was no dispute as to the idenhis 60 acres of land was a good payment tity of the property, as there is none in the thereon, although the description of the land present case. The court said: on the roll was erroneously given and further stated: "A. E. Minor, having no interest in the matter, and being, besides, an absentee, made no opposition to this assessment; and Kellogg, having paid his own taxes in full for that year, rightfully considered that he was no longer concerned in the matter of tax sales for the taxes of that year. The attempt of the tax collector to collect taxes erroneously supposed to be due on that property and by A. E. Minor was utterly without justification, and any adjudication made under such circumstances was absolutely null and void." "It is quite clear from the evidence of this last witness that L. A. Thomason was the owner of the 160 acres in question; that he was not the owner of any other large body of land in Caddo parish in the year 1904; that the assessment of the property to him and the payment of the taxes thereon relieved the property from the assessment and taxes in the name of Gus Bender for the same property, for the same year; that the tax sale was null; that the property belongs to plaintiffs." In Lewis v. Monson, 151 U. S. 545, 14 Sup. Ct. 424, 38 L. Ed. 265, certain land was originally described as lot 6 in a designated section, and under this assessment the owner paid the tax. By a later map, which was effective at the time of the assessment, not all of the land was included in lot 6, but a part of it was within lot 7. An assessment was made against lot 7, and, the tax not being paid under this assessment, the lot was sold. The question was as to whether the owner might invalidate this tax sale by showing that the payment which he made upon lot 6 was intended to cover all of the land. After quoting from the opinion of the Mississippi court, the Supreme Court of the United States says: "That the owner was not bound, as matter of law, to take notice of the new map is shown by that decision, and if he was not bound to know, and did not in fact know, and paid un In Meller v. Hodsdon, 33 Minn. 366, 23 N. W. 543, the facts were that Hodsdon was the owner of certain land in what was known as "lot 2." The lot contained about 55 acres. The land was assessed to him as the west 30 acres of lot 2, and he paid the taxes so assessed and listed in his name. This was not a good description of his land and did not cover all that he owned. An additional assessment was made to "unknown owners," the land being described as "that part of lot 2, except west 30 acres and southeast 10 acres," and under this description a tax sale was made. This tax sale was attacked on the ground that the taxes had been paid under the incorrect assessment. The court found that it was shown by the evidence of the assessor that he in fact valued and assessed the defend-der a mistake, relying upon the ancient deant's land in lot 2 in connection with the rest of his farm under the first description, so that an assessment and valuation of the entire lot was in fact made, and then held: "It is not necessary to consider whether the description would be sufficient to support a tax title as against the owner; but, upon the issue of payment by him of the taxes, under the assessment originally made, we see no reason why the facts we have recited were not proper to be shown in evidence, and upon them we think the finding warranted that the taxes law-ity by transfer to another. The stream of fully levied upon defendant's land in lot 2 for the years in question were actually paid by him." In the case of Bender v. Bailey, 138 La. 433, 70 South. 425, it appears that an assessment was made for the year 1904 in the name of Gus Bender to the "south half of south half of section 17, township 22, range scriptions and the old map, and intended in good faith to pay all his taxes, then clearly, within the scope of that decision, the sale was invalid, and the deed fails." The decision in this case cannot be influenced by the fact that the present claimant under the tax title is not the original purchaser, but a subsequent grantee from him. If the tax title in the hands of the first purchaser is invalid, it gains no valid title rises no higher than its source. The purchaser of the tax title took with the knowledge that it might be defeated by proof of payment of the tax, and his grantee is in no better position. The question of notice and of the recording acts is not involved in this case. For the error of the trial court in sustaining this demurrer, the judgment is reversed, |