146 P. 313 | Utah | 1915
Lead Opinion
Tbe defendant, a married man, was convicted of adultery, alleged to have been committed witb M., an unmarried woman. He appeals.
The question as to sufficiency of evidence to support the verdict is also presented. The evidence here -is not the same as it was in the Sheffield case. Here M., an accomplice, testified that on the night of the 16th she and the defendant, Sheffield, and W., an unmarried woman, at about ten o’clock at night, were together in the dining room of her father’s private residence at Logan, and at a time when her parents were absent. Sheffield and W. left the dining room and went into the parlor, closed the door, and remained there about an hour, and then returned to the dining room. During their absence, M. and Kimball, in the dining room, as she testified, were criminally intimate. It is that criminal act claimed to have been committed that night and on that occasion, which the State elected and relied on for a conviction. She further testified that in June of that year the defendant and Sheffield called at the home of W.’s father at Logan and met her and W. in the parlor at a time when W.’s father, brother, and sister were at home in another part of the house, and that on that occasion-Sheffield and W. left the parlor, went in the dining room, drew the curtains, and remained there about an hour, when they returned ‘to the parlor; and that during their absence she and the defendant, in the parlor, were, as testified to by her, again criminally intimate. She further testified to two other occasions of criminal intimacy in May, when she and the
State v. Spencer, 15 Utah, 149; 49 Pac. 302; State v. Collett, 20 Utah, 290; 58 Pac. 684; State v. James, 32 Utah, 152; 89 Pac. 460; State v. Lay, 38 Utah, 143; 110 Pac. 986. From what is there said, especially- in the Lay ease, where the question is fully considered and the authorities reviewed, we think it necessarily follows that the evidence here is insufficient. The ease of State v. Park, 44 Utah 360; 140 Pac. 768, where we held the evidence sufficient, does not make against this, for there is a marked dissimilarity of the facts of that and of this case.
The judgment of the court below is therefore reversed, and the ease remanded for a new trial.
Concurrence Opinion
(concurring in the reversal of the judgment). For the reasons stated in my concurring opinion filed in the ease of State v. Sheffield, I am of the opinion that the evidence in question should have been admitted.