22 Utah 27 | Utah | 1900
Lead Opinion
The defendánt was charged with having had unlawful sexual intercourse with one Anna Ward, a female over the age of 13 and under the age of 18 years, at Salt Lake City, on the 15th day of February, 1898. Upon the trial the prosecutrix was permitted, under objection, so testify to the first act of sexual intercourse as having occurred in April, 1897, about 11 months before the act charged in the information, and subsequently, under objection, she was permitted to testify to five several and distinct acts of sexual intercourse occurring thereafter during the years 1897 and 1898. The last act occurred in April, 1898, two months after the act charged in the information. The defendant moved to strike out the testimony showing the several acts charged in the information, but the motion was denied.
Sec. 4221, Rev. Stat., 1898, under whiqh the information in this case was filed, provides, that, “Any person who shall carnally or unlawfully know any female over
Under Secs. 4730 and 4733, Rev. Stat. 1898, the information must be direct and certain as regards the offense charged, and as to the statement of the acts constituting the offense.
The information in this case contained but one count alleging the commission of the act on a day specified. The trial court permitted the prosecution to introduce six distinct acts or crimes to be shown in evidence before the jury as having occurred in 1897 and 1898, during a period of 14 months, without requiring any election to be made, and allowed the case to go to the jury upon all the several acts of sexual intercourse shown, when only one act was or could be charged against the defendant. Such a course was calculated to confound, distract and confuse the defendant in his defense. He was expected to meet one charge at a specified time, but was required to defend against and meet six different acts occurring during a period of 14 months, upon one of which the jury was asked to convict. Whether the jury united in á verdict upon each act, or some on one and others on another of tfie acts proved is problematical. The course pursued subjected the defendant to the risk of conviction upon six charges, occurring at different times and places, against which he could not be expected to be prepared to defend, and yet a conviction or acquital upon one would be no bar to a future prosecution on any except the first act shown. •
No jury should be set to fishing or hunting for a charge which they are called upon to try. Such a course deprived the defendant of a fair trial, and compelled him, without warning, to defend against acts of which he had no notice. Manifestly, he could not be prepared to meet
The general rule in criminal cases subject to exceptions, is well settled that where one specific offense is charged, the commission of other offenses cannot be proven for the purpose of showing that the defendant would have been more likely to have committed the offense for which he was on trial, nor as corroborating the testimony relating thereto; but where the offense consists of illicit intercourse between the sexes, such as is charged here, or in case of incest, adultery or seduction, courts have relaxed the rule and hold that -previous acts of improper familiarity between the parties, occurring prior to the alleged offense, were admissible as explaining the acts, and as having a tendency to render it more probable that the act charged in the information was committed, though such acts would be inadmissible as independent testimony. Lawson v. State, 20 Ala. 65; State v. Wallace, 9 N. H. 517; 2 Starkie on Evidence, 440; Commonwealth v. Merriam, 14 Pick. 518; Wharton’s Crim. Ev., Sec. 104; People v. Jenness, 5 Mich. 305; People v. Clark, 33 Mich. 111; Underhill on Crim. Ev., Secs. 92 and 87; 2 Greenleaf on Ev. (15 ed.) Sec. 47; State v. Markins, 95 Ind. 464.
Having determined that previous acts of intercourse are admissible, we are next called upon to determine which of the six acts constituted an offense upon which a conviction could be had.
The charge in the information was for a single act committed on the 15th day of February, 1898. The time stated was immaterial, and under well settled rules in criminal cases the prosecution, before'evidence was introduced, could have selected any one of the criminal acts in proof, which occurred within the statute of limitations and the jurisdiction of the court, as the "offense for which it would ask a conviction! The defendant could be con
The act of intercourse occurring in April, 189?, being the first act to which evidence was introduced, and the evidence being directly upon the offense charged, it became from that moment the only offense the jury were called upon to try.
This view was announced in the case of People v. Jen
“The prosecutor having the right to select among all . thd acts of the kind which he could prove to have been committed between the parties, within the period alluded to, and within the jurisdiction, any one of those acts, before evidence had been introduced, was as properly the act charged in the information, as any other. .In other words, until evidence of some such act had been given,' the charge in the information was floating and contingent, aimed as much at one as another, and at no one act in particular; and it remained for the evidence to point the charge to the particular act intended. But when evidence had been introduced tending directly, to the proof of one act, and for the purpose of procuring a conviction upon it, from that moment that particular act became the act charged. What had, till then, been floating and contingent, had now become certain and fixed. The prosecutor had made his election, and could not elect again; nor could he be allowed to prove any other act of the kind as a substantive offense upon which a conviction might be had in the cause. The information could be used as a drag-net only till the first act had been entangled in its meshes; every other act must be allowed to escape this throw of the net; and thenceforward the evidence must be aimed at this act. If others ’of the same kind lie in the same range, they can only be noticed for a secondary purpose, as they may be connected with or bear upon this.”
In the case of People v. Clark, 33 Mich. 112, where seduction was charged in three counts, the court adopted and approved of this same rule. In delivering the opinion, concurred in by Judge Cooley, the court said:
“ The act alleged to have been committed in the buggy,
In Elm v. State, 26 Ala. 48, it is held that after the state has offered evidence of one particular offense, it will be held to that election through the trial and cannot elect again.
In Lovell v. State, 12 Ind. 18, it is held that where an indictment contained a single count for incest, which was proved, the state cannot thereafter prove that the defendant had improper relations with the prosecutrix at any subsequent time.
It necessarily follows that the testimony showing the several acts of intercourse subsequent to April, 1897, were improperly admitted, and the defendant was prejudiced thereby.
The defendant, in order to show the character of the prosecutrix, asked the following question: “Q. I will ask if you know what the reputation of Miss Ward was for chastity during the month of February, 1897, in that precinct?” The question was objected to and the answer excluded. The question was not properly framed. In impeaching the character of a witness the inquiry must be confined to the general reputation in the locality referred to. State v. Marks, 16 Utah, 204.
The prosecutrix was under the age of consent. Sexual intercourse with her constituted an -offense under the statute, whether she consented or not. Her good or bad charácter for chastity, as affecting the crime charged against the defendant, was not in issue, although her general reputation for truth and veracity was. The testimony offered was incompetent. So, specific acts of un-chastity on the part of the young woman were not admissible. People v. Glover, 71 Mich. 303; People v. Abbott, 97 Mich. 484; Underhill on Crim. Ev. Sec. 418.
Error is also assigned on the refusal of the court to instruct the jury that no conviction could be had on the testimony of an accomplice unless corroborated as provided in Section 4862 Rev. Stat. 1898.
Manifestly, if the prosecuting witness was an accomplice in the act, her testimony required corroboration before a conviction could be had thereon.
It appears that the witness knowingly and willingly consented to the act, but being under the age of consent
The following cases bear upon this subject:
1 Am. & Eng. Ency. of Law, 390; Commonwealth v. Wood, 11 Gray, 85; People v. Abbott, 97 Mich. 484; 1 Bouvier Law Dictionary, p. 21; Wharton’s Crim. Law, (9th ed.) 440.
We do not overlook the danger attending prosecutions under this act. The rules of law governing trials under this statute are more stringent and less flexible than those applicable in other criminal cases. An accusation under this statute is easily made. The offense, if committed, is generally in secret. The general character of the prose-cutrix cannot be attacked. Specific acts of unchastity on her part cannot be shown. Her testimony as in many other cases where she may be an accomplice does not require corroboration in order to obtain full credit, and the woman who participates in the act is not criminally liable therefor. Under such circumstances the charge when made is hard to disprove and difficult to defend against no matter how innocent the accused may be. While the protection of the honor and chastity of young women is of paramount importance to the state and every effort should
For the reasons given, the judgment of the district court is reversed, and the case remanded with directions to grant a new trial.
Dissenting Opinion
dissenting.
I am unable to concur in reversing the judgment herein. Where, as in this case, there is a continuation of the relation of intimacy and illicit intercourse between the parties to the offense, evidence of improper familiarity and adulterous acts both before and after the act charged is admissible. Such evidence in received to prove the adulterous disposition in the parties implicated. This appears to be the rule sanctioned by the weight of recent authority. “At the time of the present writing,” says Mr. Bishop in his commentaries on Statutory Crimés, Sec. 682, this doctrine — namely, that subsequent familiarities and adulteries between the same parties, equally with the prior, ones, are admissible — may be deemed to be established in all our courts, as respects alike the divorce suit and the indictment. ”
So, in Whart. Crim. Ev., Sec. 35, it is said: “In prosecutions for adultery, or for illicit intercourse of any class, evidence is admissible of sexual acts between the same parties prior to, or, when indicating continudusness of illicit relations, even subsequent to, the act specifically under trial. ”
Likewise, in Underhill Crim. Ev. Sec. 381, the author says: ‘c Improper familiarities and adulterous acts between
In State v. Witham, 72 Me. 531, Mr. Justice Peters, speaking for the court said: “It is objected that this mode of trial involved the admission of evidence of acts of adultery happening both before and after the principal act complained of. Formerly, the criticism might have been regarded favorably in many courts. Laterally, however, courts and text-writers are rapidly falling in with the view, that acts prior and also subsequent to the act charged in the indictment, when indicating a continuousness of illicit intercourse, are admissible in evidence as showing the relation and mutual disposition of the parties; the reception of such evidence to be largely controlled by the judge who tries the case, and the evidence to be submitted to the jury with proper explanation of its purpose and effect. We think this doctrine is most in, accordance with the logic of the law, and with the authorities.”
So, in People v. Hendricksen, 53 Mich. 525, Mr. Justice Sherwood, with whom the other justices, among them Mr. Judge Cooley, concurred, said: “On the trial the prosecuting attorney was permitted to make proof of acts of familiarity and intimacy between the defendant and Mrs. Smith, which occurred over two years before the prosecution was commenced. Such acts, within a reasonable time before the acts complained of, and also occurring very soon thereafter, so long as they may be regarded as continuous, are competent and admissible testimony; but those occurring two years before the criminal act charged must be held too remote and it is error to admit them.”
In Thayer v. Thayer, 101 Mass. 111, Mr. Justice Colt,
I am of the opinion that the judgment should be affirmed.