State v. Bayes

Jan 26, 1916

No. 2828

Reporters:: , ,
Before:: Frick

FRICK, J.

Tbе appellant was convicted in tbe district court of Salt Lake County of tbe offense of having bad carnal knowledge of a female under tbe age of eighteen years and over tbe age of thirteen years, which, under our statute, is a felony. He appeals from tbe judgment.

His counsel have assignéd and argued errors in tbe following particulars: (1) That tbe evidence is insufficient to sustain the verdict and judgment; (2) that tbe court erred in giving one of the instructions to tbe jury; and (3) that it erred in the admission and exclusion of evidence.

1,2, 3 Counsel vigorously contend that tbe evidence produced by tbe state is insufficient to sustain the verdict of the jury and tbe judgment of tbe court based thereon. The contention is made that, in view that tbe proseeurix was the only witness whо testified to tbe act of sexual intercourse, and that‘for various reasons which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍are pointed out her statements are wholly unreliable, therеfore the evidence is insufficient, as before stated. Among other circumstances which, it is alleged, show the unreliability of the testimony of the prosеcutrix, counsel point to the fact -that she, at the trial, was positive that the sexual act complained of oc-*476curved on Wednesday, thе 10th day of January, 1914, while in fact that date did not fall upon a Wednesday but fell upon a Saturday. They insist that the truth, therefore, is that, if the sexual act ocсurred on the Wednesday referred to, then, it occurred on the 7th day of January, and not on the 10th, and that, if it occurred on the 10th, then it took place on Saturday, and not on Wednesday. It could subserve no useful purpose for us to set forth the evidence adduced at the trial, even in substance. It must suffiсe to say that the record discloses that the prosecutrix, who at the time was between 16 and 17 years of age, in positive terms testified that the аppellant had sexual intercourse with her on the date aforesaid, and that he denies such intercourse on that date, or on any other dаte.

It also appears from the record that counsel for appellant moved for a new trial, in which motion it was stated that the evidence was insufficient to sustain the verdict of the jury. The trial court, in an oral opinion which is made a part of the record, reviewed the evidence at length, and therefore carefully considered that question. From that opinion it is apparent that the trial court was satisfied that the jury, upon the evidence, were justified in finding that the evidence established appellant’s guilt beyond a reasonable doubt. The trial court, in that opinion, pоints out some inconsistencies in the testimony of the prosecutrix; but he likewise points out some in the testimony of the appellant. The question of сredibility arising from those inconsistencies was for the jury. We have already held that, where the prosecutrix is not an accomplice, her testimоny alone, if believed by the jury, is sufficient to sustain a finding that the sexual act occurred. State v. Reese, 43 Utah, 454, 455, 135 Pac. 270. The fact that that was a bastardy proceeding in no way affеcts the principle. Nor does the mere fact that the prosecutrix fixed the 10th as being on Wednesday, when in fact it fell upon a Saturday, from a legal point of view, affect the verdict ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the jury. The act, if occurred at all, was quite as unlawful on Wednesday, the 7th, as on Saturday, the 10th, of the month. Suсh a discrepancy might become material in a case where the statute of limitations was important; but, under *477the circumstances of this case, the only effect it could have was that it might have affected the credibility of the witness and the weight to be given her statements, and that question was for the jury.

It is next assigned that the court erred in giving instruction No. 4 to the jury, which reads as follows:

4 “If you find from the evidence beyond a reasonable doubt that the prоsecutrix, * * * the female named in the complaint, was not the wife of the defendant at the time ■ alleged in the information, and was under the age of eighteen years, which is commonly referred to as the age of consent, and further find from the evidence beyond a reasonable doubt that the defendant committed an act of sexual intercourse with her at the place and on or about the time charged in the information, then such aсt of sexual intercourse constituted an offense under the statute, whether she consented or not. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍If such facts are proven beyond a reasonable doubt, it is immaterial whether she had been previously chaste or not, or whether she may have been unchaste’ with some other persоn; and it is immaterial that she did not resist or make an outcry, or whether she consented, on whether she received money for the act. None of thеse facts, if proven, constitute any defense, if you find from the evidence beyond a reasonable doubt that an act of sexual intercoursе ■was committed at the time and place and under the circumstances by the defendant with her, as charged in the information. ’ ’

The assignment respecting the instruction is in the language of the exception taken to it at the trial, and is as follows:

“The defendant excepts to instruction No. 4 given by the cоurt to the jury.”

In their brief counsel argue that the instruction is erroneous, because it is ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍incomplete, and more particularly for the reason that thе court charged:

“That if the jury found that the sexual act was committed * * * at the place and ‘on or about the time charged in the information’ that this would be sufficient.”

In that connection it is contended that, in view that the prosecutrix’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍testimony that the act occurred on a Wednesday *478and on the 10th, this gave the jury too much latitude regarding the date upon which they could find the act was committed. We can see no substantial merit to this contention. It has become elementary law, in this jurisdiction, at least, that the act need not be proved on the precise day alleged in the information. That being true, it would, under the circumstances of this case, be needless for us to devote- further time to a consideration or discussion of the point disсussed by counsel. Counsel have not pointed out in what particular the instruction is objectionable in other respects, and we have discovеred none.

The contention that the court erred either in excluding proper or in admitting improper evidence is not tenable. After examining thе record it is apparent to us that counsel have assigned the errors with regal‘d to the exclusion and admission of evidence more because they thought the evidence in this case against their client was weak, than upon the ground that the rulings of the court in and of themselves were prejudicial to the interests of their client. Indeed, if such an excuse is not allowed, then there is no excuse whatever for arguing these alleged errors. .Moreover, the alleged errors respecting the admission and exclusion of evidence, whether considered singly or conjointly, could not havе prejudiced any substantial right of the appellant, and hence- can be given no effect. We have refrained from setting forth the questions and аnswers covered by the foregoing, assignments, because we could subserve no useful purpose in doing so.

We have discovered nothing in the record which would justify our interference, and hence the judgment is affirmed.

STRAUP, C. J., and McCARTY, J., concur.