89 P. 460 | Utah | 1907
(after stating the facts). The section of the statute (section 4211, Rev. St. 1898) creating and defining the offense of which the defendant stands convicted, so far as material here, reads as follows:
*157 “If any person related to another person within and not including the fourth degree of consanguinity, computed according to the rules of the civil law, shall marry or cohabit with, or have sexual intercourse with, such other so related person, knowing her or him to he within said degree of relationship, the person so offending shall he deemed guilty of incest.”
It is contended that the information is fatally defective, in that it does not allege that the appellant, William J. J ames, and the complaining witness, Isabell James, are related by consanguinity. It is conceded that an act of sexual intercourse between niece and uncle, when the accused is cognizant of the relationship existing between them, comes clearly within the prohibitive provisions of the statute. The allegation in the information that the defendant had sexual intercourse with his niece, knowing her to be of such relationship-, is, we think, a compliance with section 4732, Rev. St. 1898, which in part, provides that “the information .... must he direct and certain as it regards (1) the party charged, (2) the offense charged.” The words “within and not including the fourth degree of consanguinity,” etc., are descriptive of the class of persons who are prohibited from marrying, cohabiting, or having sexual intercourse with each other, and are evidently intended to group together all of the different degrees of relationship to which the statute applies, and thereby to avoid the necessity of specifically enumerating them. (Hicks v. People, 10 Mich. 395; People v. Kaiser, 119 Cal. 456, 51 Pac. 702; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672.)
The next assignment is based on' the ruling of the court in refusing to strike out certain testimony. It appears from the record that Albert Law, the person who swore to the complaint upon which the defendant was held by the committing magistrate, testified as a witness for the state. -On cross-examination, defendant’s counsel, evidently to prove the interest the witness had taken in the prosecution of the case, and as tending to show his bias against defendant, invited Law’s attention to the fact that in the complaint filed with the magistrate the crime is alleged as having been committed on September 20th, and asked him the following
It is conceded that, under the facts and circumstances of this case, as testified to by the witnesses, the jury might well have found that Isabell James was an accomplice; and the court, as part of its instructions on this branch of the case, read to the jury section 4862, Revised Statutes 1898, which provides that:
“A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which of itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.”
If the trial court, in connection with the balance of its charge to the jury, had given instruction No. 8 with the parts we have italicized omitted therefrom, no fault could be found with it, because No. 8, when so modified and given in connection with instruction No. 7 and section 4862, Rev. St. 1898, correctly states the law respecting the testimony of an accomplice, as well as the law requiring that such testimony shall be corroborated by other evidence which of itself and without the aid of the testimony of the accomplice
It is not the province of this court, in criminal cases, to weigh evidence and make findings, but to determine whether there is, in fact, evidence from which a fact might properly be found. When, in so doing it is said by the court that the evidence, though slight, is sufficient to support the finding complained of, it does not necessarily follow that the jury are authorized to find a fact which to them may appear to be only slightly supported by the evidence, or has alone for its basis evidence which they consider is entitled to but little con-si deration. What may appear to this court' but slight evidence, yet sufficient to support a finding, must, nevertheless, satisfy the jury of the existence of the fact found before they are warranted in making the finding. In other words, before they are warranted in making a finding, they must be satisfied, not that the finding might or could be made, but that the fact exists. To say to the jury that they may find such fact upon evidence which they do not believe to be true would be erroneous; and to say to them that they may make such finding on “slight evidence,” or on “evidence entitled to but little consideration,” as was done in the case at bar, is also bad, though not so glaring.
The case is reversed, with directions to the trial court to grant a new trial.