Dеfendant was convicted of adultery, and appeals to this court. His specification of errors is as follows: “The court erred (1) in giving instruction No. 20; (2) in refusing to admit testimony tending to show that this prosecution was malicious (ff. 1107 to 1112, inclusive), and in refusing to admit testimony which would еxplain the actions of the defendant wherein he attempted to have Ruth Emile Jester leave Twin Falls, Idaho; (3) the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon.
We will consider the errors specified in the order which we consider logical for the purposes of this opinion.
We will consider the second specification first. In support of it, appellant refers to transcript folios 1107 to 1112, inclusive. It there appears that appellant’s counsel offered to prove by appellant himself that he had been told by members of the Jester family that the prosecutrix, Ruth Jester, was under the complete domination of her father, had been dominated by him, and had been physically beaten by him. Undoubtedly appellant was entitled to show by competent evidence, as bearing upon the credibility of the prosecutrix as a witness, that she was dominated by her father. He offered to prove this, however, by incompetent testimony, to
We turn next to the third specification of error, that the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon.
C. S., sec. 9068, provides: “Upon an appeal from a final judgment of conviction, if a reporter’s transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal frоm an order denying a new trial, providing, a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant’s brief filed with the supreme court.”
This is an appeal from the judgment. The particulars in which the evidenсe is insufficient to sustain the verdict are not stated. The specification is therefore not sufficient to raise the point of insufficiency of the evidence. (State v. Maguire,
If, however, we waive this technical point and consider the evidence itself, we conclude that it is sufficient to support the verdict and judgment. The point attempted to be made by counsel in his brief is that there was not sufficient evidence to corroborate the testimony of the prosecutrix, who was admittedly an accomplice. C. S., sec. 8957, provides: “See. 8957. A conviction cannot be had on testimony of an accomplice, unless he is corroborated by other evidence, which in 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 is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.”
This court has said: “Evidence of a material fact, which, independent of the testimony of an accomplice, tends to connect the defendant with the commission of the offense charged is sufficient to satisfy the requirements of C. S., sec. 8957.” (State v. Whisler,
We come now to the first specification of error, which raises the most serious question in the case. The court’s instruction No. 20 is as follows: “You may take into consideration any evidence tending'to show an оpportunity .upon the part of the defendant, Harold M. Sims, and Ruth E'mile Jester, to commit the crime charged in the information. Evidence of an adulterous disposition or inclination, together with evidence of an opportunity to commit the crime, would be sufficient to justify you in bringing in a verdict of guilty against the defendant, if this evidence satisfies you beyond a reasonable doubt that the crime charged in the information was committed.”
Appellant contends that this instruction is erroneous as a statement of law, and the giving of it is rеversible error. The supreme court of Oregon has said: “When proof of an adulterous disposition on the part of each participant of an act of adultery has been produced, the commission of the crime may be inferred from evidеnce of an opportunity to commit the act.” (State v. Eggleston,
The supreme court of Iowa has said: “Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction, but there must be circumstances inconsistent with any other rеasonable hypothesis.” (State v. Trachsel,
The same court has said: “It is urged that mere opportunity to commit adultery, together with an adulterous disposition, is not sufficient proof to sustain such an accusation (citing State v. Trachsel,
The supreme court of Wisconsin has said: “It is enough, to sustain conviction of adultery, that the adulterous disposition be shown to exist betweеn the parties, and that they were together in equivocal circumstances, such as would lead the guarded discretion of a reasonable and just man to the conclusion of guilt beyond a reasonable doubt.” (Monteith v. State,
We disapprove of the rule laid down by the Oregon court in State v. Eggleston, supra, and approve the rule as laid down by the Iowa, Wisconsin and Georgia cases above cited. The form of instruction No. 20 is subject to criticism. It would have been better if the court had stated that the evidence of opportunity and adulterous disposition or inclination is sufficient to justify a conviction only if the circumstances prove beyond a reasonable doubt that the crime was committed as charged, and are inconsistent with any other reasonable hypothesis than that of the defendant’s guilt. However, it will be noticed that the court said in substance that the evidence of opportunity and adulterous disposition or inclination would be sufficient to justify a verdict of guilty only if the evidence satisfied the jury beyond a reasonable doubt that the crime of adultery was committed. Fairly interpreted, this is equivаlent to saying that any reasonable hypothesis other than guilt must be excluded. We conclude that the instruction is not sufficiently faulty or prejudicial as a statement of law to constitute reversible error.
Appellant also complains of this instruction on thе ground that there was no evidence tending to show an adulterous
Appellant also criticises the instruction in that it mentions evidence of an opportunity to commit the crime. We do not think that it is subject to criticism on this score. The prosecutrix testified that she and appellant went on auto rides alone, at night, and there is some corroboration of her testimony in this respect. While the opportunity to commit the crime is not as great under such circumstances as where the parties are in a room or bed, yet we think there is evidence of opportunity.
The question narrows to this: Is the fact that the court gave an instruction as to the effect of evidence of adulterous disposition or inclination reversible error? We must assume that the jury was composed of reasonable men, of average intelligеnce, and that, as such, they considered the evidence. We cannot assume that they concluded there was evidence of circumstances showing an adulterous disposition or inclination simply because the court mentioned those words in his instructions, when in fact there was no such evidence. We must assume that they acted on the evidence itself. The evidence as to the statements and actions of appellant after his arrest constitute sufficient corroboration of the prosecutrix’s testimony to justify a jury in finding a verdict of guilty. In the light of this evidence, we do not see how any reasonable jury could have arrived at any other result. We conclude, therefore, that the jury based its verdict upon the evidence, and could not have been influenсed by the erroneous instruction in arriving at the verdict. We therefore conclude that the giving of the instruction was not reversible error.
The court overruled the objection, and the examination of the witnеss Ruth Jester proceeded. Appellant contends that it was reversible error for the trial judge to refuse to make a preliminary examination as to the competency of the witness. C. S., see. 7936, provides that persons who are of unsound mind at the timе of their production for examination cannot be witnesses. Appellant relies on the decision of this court in State v. Simes,
"What is said there is applicable to this case. The witness was examined at length, being, subjected to searching cross-examination. Her credibility was properly left to the jury, and determined by it. Aрpellant’s counsel points out some inconsistencies and contradictions in her testimony. These, however, merely go to its weight. This court has said that a person is not of unsound mind within the meaning of the statute if he can comprehend the obligations of an oath, and is capable of giving a fairly correct account of what he has seen or heard. (State v. Simes, supra.) We find nothing in the record which tends to show that the witness was of unsound • mind. We conclude that the action of the court in refusing to make a preliminary investigation of the competency of the witness was not reversible error.
The judgment is affirmed.