190 P. 777 | Utah | 1920
Defendant was convicted of tbe crime of adultery. After a denial of his motion for a new trial be appeals. He complains that tbe evidence was insufficient to justify the verdict of tbe jury, and that tbe verdict was contrary to law.
The evidence upon which a conviction was based was wholly circumstantial. In substance, it tends to show that on February 8, 1919, the date upon which the alleged offense was charged in the information as having been committed, the defendant was a married man residing at the town of Duchesne, Duchesne county, Utah, where he had been engaged in the business of merchandising. He was also the lessee of the Duchesne Hotel at said place. The record is not clear as to whether he had anything to do with the actual management or the conducting of this hostelry. His wife and children resided elsewhere at Duchesne. Defendant’s alleged paramour on the night of February 7-8, 1919, occupied room 24 at said hotel. Room 23, adjoining and connected by a door, was occupied by other guests at the hotel. Both of these rooms opened into hallways, the former to the south, the latter to the north. The defendant testified that he occupied room 22, across the north hallway to the east. Other witnesses testified that room 22 was occupied by one Burt on the night in question. Joseph E. Murray, the city marshal of Duchesne, testified that on February 8, at about two o’clock a. m., he, with a deputy, accompanied by the defendant’s wife, went to the hotel and knocked upon the door of room 24, The knock was answered by a voice from within room 24, which voice he says he recognized as being that of the defendant, saying, “’Who’s there?” After two or three minutes waiting, the witness heard shuffling about the room, and then the rattling of the lock to the door leading from room 24 to room 23; that he then commanded the deputy to go to and watch the north hallway, which
There is no direct evidence in the record that an act of sexual intercourse was committed by the defendant, as charged in the information. As heretofore remarked, the evidence upon which a conviction was based is purely circumstantial.
The defendant contends:
“The essential element of the crime of adultery is in the act of sexual intercourse, and hence the corpus delicti must he proven. In order to support a conviction for adultery there must he present certain evidential features, to wit: (a) The direct testimony of a witness or witnesses who saw the perpetration of th,e act; (h) confessions or admissions of the defendant as to his guilt, sufficiently, explicit as to the time and place charged; (c) circumstantial evidence of the commission of the act of sexual intercourse*275 which clearly and unmistakably points to the guilt of the defendant; or (d) the testimony of an accomplice supported by independent corroboratory testimony.”
No witness testified to seeing- the act complained of, the defendant made no admission or confession, and the alleged paramour, as well as the defendant, denied its commission. However we do not understand that counsel for the defendant makes the contention that all of these features
"We are not prepared to say, under all the circumstances disclosed by the evidence in the record now under consideration, that the jury might not reasonably infer the guilt of the defendant. It would in our opinion, be a very difficult matter indeed for fair-minded men to say that
• We do not think upon the record before us the court below committed error in overruling defendant’s motion for a new trial, nor in entering judgment against the defendant upon a finding of guilt by the jury.
It is therefore ordered that the judgment of the district court be affirmed.