205 P. 339 | Utah | 1922
The defendant was charged with and convicted of the crime of having had carnal knowledge of a female over the age of 13 years and under the age of 18 years, which, under our statute, constitutes a felony. He appeals.
“Did the court err in denying defendant’s motion for a new trial in refusing:
“(1) To give defendant’s request No. 8 reading as follows: ‘Before you can find the defendant guilty each juror must he convinced from the evidence, beyond a reasonable doubt, of the defendant’s guilt, and if any one of you entertains a reasonable doubt as to the defendant’s guilt he should not concur in a verdict of guilty.’
"(2) To givei defendant’s request No. 10 reading as follows: T charge you that you should scrutinize the evidence of the prosecuting witness in this case with caution, as she has told you that her statements in this case were made under influence of threats of death.’
“(3) On account of the separation of the jury, without leave of court, after retiring to deliberate upon their verdict, without being in the custody of the officer in whose charge they were, before bringing in a verdict.”
We shall consider the alleged errors in the order in which they are stated.
Defendant’s counsel refer to the case of Salt Lake City v. Robinson, 40 Utah, 448, 125 Pac. 657, in support of their contention. A mere cursory examination of that ease, however, shows that the court there refused a request substantially like the one requested in this case, but charged the jury as follows:
“You are instructed that, if after due consideration of the whole case and discussion thereof with your fellow jurymen, any juror entertains a reasonable doubt of the guilt of defendant, it is the duty of the juror so entertaining such a doubt not to vote for a verdict of guilty nor to be influenced in so voting for the sole reason that other jurors would be in favor of a verdict of guilty.”
It was there held that the court committed no error in refusing the requested instruction. While it is true that in the case at bar the district court did not specifically charge the jury that in case any juror entertained a reasonable doubt of defendant’s guilt it was his duty not to vote for conviction, the court, nevertheless, fully and in clear and explicit language charged the jury that they could not convict so long as they entertained a reasonable doubt
Moreover, the language of the request in this case is clearly objectionable in that it does not correctly reflect the law. In Cunningham, v. State, 117 Ala. 59, 23 South. 693, the defendant requested the court to charge as follows:
“If there he one juryman who believes the state has not proven the defendant guilty beyond a reasonable doubt, an'd to a moral certainty, then this juryman should, not consent to a verdict of guilty.”
The court (11? Ala. at page 66, 23 South. 695) said:
“Aside from the inartificial manner in which the charge is drawn, it is vicious in that it is calculated to impress the mind of a juror with the idea that his verdict must be reached and adhered to without the aid of that consideration and deliberation with his fellow jurors which the law intends shall take place in the jury room.”
In Davis v. State, 63 Ohio St. 173, 57 N. E. 1099 a request to charge like the one in question here was refused and the defendant excepted. In passing on the request the Supreme Court of Ohio said:
“The court was requested to charge the jury that each juror must be convinced beyond a reasonable doubt of the guilt of the defendants before uniting in a verdict of guilty. This the court refused, but did charge that the jury must be convinced beyond a reasonable doubt 'before finding the defendants guilty. We think the request asked was properly refused, and that the proper instruction was given. The request as asked would seem to invite an acquittal, or at least a disagreement, and was therefore misleading. It is true that each juror must be convinced of the guilt of the defendant before uniting in a verdict against him, and this is generally understood; but it is equally true that each should confer with his fellows, and listen to what they have to urge in weighing the evidence, whether it be for or against an acquittal, and not obstinately stand upon his own opinion in the matter. The request asked and refused by the court would tend to such a result, and was therefore properly refused. State v. Hamilton, 57 Iowa, 596; State v. Robinson, 12 Wash. 491; State v. Young, 105 Mo. 634, 640.”
Nor did the court err in refusing the request to charge that the jury “should scrutinize the evidence of the prosecuting witness in the case with caution.” The court fully and clearly charged the jurors respecting their duty in weighing the testimony of the witnesses and the elements that they should bear in mind and consider in determining
This brings us to the third and last assignment. It is made to appear from the evidence that there was some discrepancy between the statements of the prosecuting witness and those of the defendant respecting the place where she alleged that the sexual act was committed. The prosecutrix contended that it was committed some distance south of Ogden in the country, and that defendant had turned from the main traveled road with the automobile in which the two were riding. There was also more or less confusion' in the evidence respecting the road the defendant traveled with the automobile, and where he stopped and turned from the main traveled road, etc. The jury, it seems, had some difficulty in reconciling the conflicting statements of the witnesses in that regard. In view of that difficulty, the jury, some time after they had retired to deliberate upon their verdict, came into court and asked that they be taken over the route which the testimony showed the defendant had driven the automobile, and to the place the prosecutrix testified he had stopped the car and had departed from the main traveled road. Both counsel for the state and for the defendant consented that the jury should be permitted to go over the route. The court, however, declined to make such an order, and directed the jury to retire and deliberate further. After the jury had done so for a considerable length of time, they again appeared in court and requested to be permitted to go over the route as before stated.
At this time counsel for defendant specially requested that the court make the order and counsel for the state consented. The court then called in the sheriff and told him what the parties requested and asked him to provide a conveyance for the jury. The court gave full instructions to the sheriff how the jurors should be taken to the several places, and cautioned him fully with respect to his duty, and likewise cautioned the jury with respect to their conduct. It seems that the sheriff provided two automobiles to accommodate the jury, and thus some of them were conveyed in one automobile
From what has been said, it follows that the judgment should be, and it accordingly is, affirmed.