11 N.M. 392 | N.M. | 1902
Lead Opinion
OPINION OP THE COURT.
There is no attempt to further specify the meaning of the word “adultery” under the laws of the United States, and the reason for this is no doubt, that the term “adultery” is so universally understood to mean sexual intercourse, that it is deemed unnecessary to add any other words, by way of definition, except those concerning the material relations of the parties. The words “adultery,” “fornication,” “cohabitation,” “bigamy” and “polygamy” are kindred offenses within the meaning of the laws of the United States, having reference to the improper relations of the sexes under the guise of religion, in the Territory of Utah, but which applies with equal force to all the Territories where the United States has jurisdiction. In the case of Davis v. Beeson, 133 U. S. 333, the question before the court was, whether the first article of amendment to the constitution, that “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof” should be a protection against legislation for the punishment of acts which now constitute the offenses above referred to. It was seriously contended in that case, that the practices which the United States laws declared to be polygamy, bigamy and unlawful cohabitation, etc., were tenets of the religion of the Mormons, and hence the United States had no authority to declare the same to be crimes and inflict punishment therefor. But the Supreme Court of the United States speaking by Mr. Justice Fuller, quotes approvingly the case of Raynolds v. The United States, 98 U. S. 145, and says: “In that case the defendant was indicted and convicted under section 5352, Revised Statutes, which declared that ‘every person having husband or ydfe living who marries another, whether married or single, in a Territory or other place over which the United States has exclusive jurisdiction, is guilty of bigamy, and shall be punished by fine not more than five hundred dollars and by imprisonment for a term of not more than five years.’ The court after referring to a law passed in December, 1788, by the State of Virginia, punishing bigamy and polygamy with death, said that from that day, there neveh had been a time in any State of the Union when polygamy bad not been an offense against society cognizable by tbe civil courts and punished with more or less severity.”
In the case of the United States v. Higgerson, in the United States Circuit Court for the district of Idaho— which was a case where the charge was unlawful cohabitation — in regard to the trial of such offenses as well as of its kindred offenses of adultery and bigamy, as defined by the laws of the United States, uses the following language:
“The statute is to prevent even the appearance of evil, and as said by the Supreme Court of the United States, it is to prevent a man from flouting in the face of the world the ostentation and opportunities of a bigamous household with all the outward appearance of the continuation of the same relations which existed before the act was passed.”
Thus it will be seen that under the laws of the United States, as interpreted by the courts of the United States, bigamy, unlawful cohabitation, adultery and fornication are all deemed kindred offenses, and the laws applicable to one, in a general sense, are also applicable to the others, the words “unlawful intercourse” under the authorities must be held in a criminal case to be equivalent to the words “adultery” and “fornication,” and it would add nothing to the charge in the indictment if the words, “sexual or carnal” were used in connection with the words “;unlawful intercourse.” The words “adultery” and “fornication” both imply and express the act of sexual intercourse, but the law defined the material relations of the parties to be stated, as a means of classifying the offenses. In Smitherton v. State, 27 Ala. 23, the court said the term “adultery,” as used in our code, should be construed with reference to the subject-matter with which it stands connected. When used with reference to divorce, it is to be taken in the canonical sense of that term, and it embraces the infidelity of the husband to his .wife; but when considered with reference to the criminal law, it imports such sexual intercourse as violates another man’s bed. Commonwalth v. Calt, 21 Pick. (Mass.) 509; State v. Armstrong, 4 Minn. 335; State v. Connoway, Tappan (Ohio) 90. In the case of State v. Hinton, 6 Ala. 864, it is said: “Where adultery consists in the illicit commerce of the persons of different sexes, one of whom at least, is married, it has been held unnecessary to allege that the other person is married, since the term ‘adultery’ implies that fact without further allegation.” 116 U. S. 55.
In the case of Cannon v. The United States, the court in referring to the meaning of the word “cohabitation” gives the definitions of the term by Webster, and Worcester, which are practically the same. The definition given by Worcester is as follows: “First. To dwell with another in the same place. Second. To live together as husband and wife.” The word is never used in its first meaning in a criminal statute, and its second meaning is that to which its use in this statute has relation.
In the case of Helfrich v. Commonwealth, 33 Pa. St. 68, the court in passing upon a motion in arrest of judgment on the ground that the indictment did not charge that the defendant had carnal knowledge of the body of Matilda Moyer, etc., the court said: “We are not convinced by the learned argument of the defendant’s counsel. Our statute of 1705 makes fornication and adultery punishable; but it does not define them. Why? Evidently because the words were so well understood that a definition was not thought of ... . ; in describing the offense in an indictment no greater particularity has heretofore been required than is found here, and this ought to be enough to sustain this indictment; . . . . ‘commit adultery’ does not merely imply, but expresses carnal knowledge, for that is its very meaning; having carnal knowledge is but a euphemism of it.” 75 Am. Dec. 579; Leading Crim. Cases by F. F. Heard, vol. 11, page 288.
Referring to tbe first count of tbe indictment, to which tbe appellant objects, it will be found that tbe count alleges that “Griego was a married man, having a wife in full life; that be and tbe defendant Petra Romero were not then married to each other.” Then follows tbe charge that “they did unlawfully commit tbe crime of adultery by then and there having unlawful intercourse with each other contrary to tbe form of the statute,” etc. Tbe indictment, therefore, charges that the appellant did commit tbe crime of adultery by having unlawful intercourse with tbe defendant Petra Romero. This being a criminal case, and a prosecution under a criminal statute, tbe charge that tbe appellant committed ■the crime of adultery by having unlawful intercourse, clearly means such sexual intercourse, as tbe word adultery expresses. Tbe appellant is presumed to know tbe law, and tbe use of tbe words “sexual or carnal” could give him no fuller meaning of this charge than that given by tbe use of tbe words contained in tbe indictment. Ordinarily it is sufficient to define a statutory crime in tbe language of tbe statute, and tbe indictment in this case certainly includes tbe language of tbe statute, but it is not even necessary to use tbe exact language of tbe statute, as language equivalent thereto will be sufficient. ' Territory v. Ruiz, supra. But tbe indictment here does more than that, in defining tbe manner of tbe commission of adultery to be that of having unlawful intercourse, and in our opinion, tbe motions to quash tbe indictment and in arrest of judgment were properly overruled.
In Common wealth v. Morris, 1 Cush. (Mass.) 391, tbe exact date of tbe acts sought to be proved was in doubt. It was held, however, that tbe evidence was admissible, and that tbe nearness of time was a circumstance affecting tbe effect of tbe evidence, and not its competency. Where tbe statute of limitations was pleaded, tbe plaintiff was permitted to begin with proofs of acts of adultery committed more than six years preceding, as explanatory of 'acts of indecent familiarity, within tbe time alleged. 2 Greenleaf on Evidence, section 47 and citations. Tbe evidence was competent, in our judgment, and it was not error for tbe court to admit it.
Tbe argument of counsel is that this instruction nullifies tbe presumption of innocence, and virtually directs tbe jury to find against tbe defendant. The counsel in bis argument upon this assignment of error, seems to regard tbe evidence in tbe case as very trivial, because be says that there was no sufficient evidence to justify tbe suggestion that they did occupy tbe sleeping room alone. In tbe first place tbe counsel selects wbat upon its face, purports to be only a part of an instruction covering the subject. The use of the words. “If, on the other hand,” clearly shows this fact. The other portion of the instruction which counsel has not seen fit to quote, is this: “If you believe from the evidence before you that the whole family, or some portion thereof •regularly and at all times occupied the family sleeping room in common with the defendants for three years prior to March 1, 1901, then there is no' presumption of guilt.”
Taking this instruction as a whole, it is very evident that the court intended to submit to the jury, in this instruction the law applicable to the case, both from the standpoint of the United States and the defendant. This is a correct way of submitting a case to the jury, in a case where the evidence, is conflicting. Indeed, the parties have a right in such a case to have the case submitted to the jury, upon competent evidence submitted by either party to the case. Sackett in his work on Instructions to Juries, at page 16, says: “When the evidence tends to prove a certain state of facts, the party in whose favor it is given, has a right to have the jury instructed on the hypothesis of such state of facts and leave it to the jury to find whether the evidence is sufficient to establish the facts supposed in the instruction.” Griel v. Marks, 51 Ala. 566.
The court gave the first part of this instruction as the law of the case in the event that the jury, after considering all the evidence in the case, determined to find the defendant not guilty; and appellant would not and he does not object to that part of this instruction which we have last above referred to, for the reason that it is very strongly in the appellant’s favor. But this part of the instruction makes clear the purpose of the court in giving the second portion of the instruction, which was eyidently given as the law, if, after the jury had considered all the evidence and wdghed it, they bdieved that a case had been made out against the appellant, that they would be warranted in so finding. The court did not comment upon the evidence in the case, and the instruction is not subject to that objection, although in courts of the United States considerable latitude is allowed the court in its instructions to juries; nor did the court invade the province of the jury by instructing them in respect-to matters of fact; the jury were left perfectly free to determine for themselves what the facts were as to the appellant’s occupying with the defendant, Petra Romero, and alone, a certain room in that house as a sleeping room, under all the circumstances disclosed by the evidence in the case, and having in mind the prior instructions of the court giving the appellant the full benefit of every reasonable doubt, and also having in mind the instruction of the court that the appellant was presumed to be innocent until his guilt was established by the evidence beyond -a reasonable doubt.
It is true that a jury must regard a defendant as innocent until his guilt has been shown to the exclusion of a reasonable doubt, but it is only a presumption which requires a jury to so regard the defendant. The law raises this presumption in the absence of evidence to the contrary, and in all cases, no matter how aggravated the case may be, but this presumption must yield to evidence which satisfied the jury beyond a reasonable doubt of the guilt of the defendant, and in a case of this nature, a jury is warranted in returning a verdict of guilty in the absence of positive and direct evidence as to the com-’ mission of the overt act, where the evidence and circumstances are such as show the intimate relations of the parties charged that the jury may legally infer guilt. In this respect a case of "this nature is peculiar, and the law governing the trial and conviction of defendants, is somewhat different from that which governs the courts and juries in other than such exceptional cases. A long line of authorities might be referred to here to the effect that it is not necessary to a conviction of the crime of ■adultery that specific acts of carnal intercourse between the parties shall be proven by direct evidence such as that of a witness to the act itself. Experience of courts in dealing with cases of this nature, has shown that cases are very rare indeed in which such evidence can be produced in court, and, therefore, a different rule must obtain in the interest of justice as to the character of evidence which will warrant a jury in returning a verdict of guilty in the absence of direct evidence.
“Presumptions of fact are but inferences drawn from other facts and circumstances in the case, and, should b.e made upon the common privileges of induction.” Lawson on Presumptive Evidence, page 556.
It has been repeatedly held that evidence wholly circumstantial may be sufficient to support a conviction. In the case of Commonwealth v. Gray, 129 Mass. 447, the court said: “In almost every case of adultery the fact of carnal intercourse is inferred from circumstances.” To the same effect is State v. Chancey, 110 N. C. 507; Commonwealth v. Mozier, 135 Pa. St. 221; Cole v. State, 6 Baxt. (Tenn.) 239; Baker v. United States, L. Pinn. (Wis.) 641. In State v. Chancey, 81 N. W. 454, a case in Iowa decided in 1900, it was held that positive proof of the act of adultery is not required,, and from the nature of the offense it is not easily made. State v. Eliason, 91 N. C. 564; Crane v. The People, 168 Ill. 395. In the case of Stewart v. State, 43 S. W. 979, the defendant traveled over the county in a peddler’s cart taking with him a woman whom he presented as his-wife; this was held sufficient evidence to convict of adultery without any eyewitness to an act of intercourse. In the case of Commonwealth v. Clifford, 145 Mass. 97, the court held that the jury were properly instructed that if a married man was found with a woman not his wife in a room with a bed in it, and stayed through the night with her, it was sufficient to warrant a finding of adultery against him. Richardson v. State, 34 Tex. 142; State v. Austin, 108 N. C. 780; Blackman v. State, 36 Ala. 295; Gardner v. State, 81 Ga. 144; State v. Way, 5 Neb. 283. All that seems to be necessary in order to-warrant the jury in finding a defendant guilty of adultery, is that the circumstances shown by the evidence' are such as to lead the guarded discretion of a reasonable and just man to the conclusion of guilt. Thayer v. Thayer, 101 Mass. 113; State v. Way, supra.
From the cases above cited, it is held that a jury may infer the guilt of a defendant from circumstances, such as a man and woman not married to each other living and sleeping in the same room, and various other circumstances such as going about from place to place with each other; being frequently in each other’s company; acting apparently as if they were husband and wife, and other circumstances showing opportunities for-an adulterous relation to exist, and which in the nature of things, juries have a right to presume did exist. The inference of guilt which a jury is warranted under these decisions to make in the absence of direct proof of the commission of the offense is nothing more nor less than the presumption of guilt which, under the law, the jury may accept as sufficient to overcome the presumption of innocence. If the court had used the word “inference” instead of the word “presumption” in this instruction, it would have been clearly within the purview of the cases above cited, and if there is any distinction, it is simply a technical one which was not calculated to deceive or mislead the jury. Ordinarily in criminal cases there is no presumption of the defendant’s guilt, and presumptions are not to be indulged, but owing to the secrecy in which. crimes of the nature of adultery are committed, and the great difficulty of securing evidence, such as is necessary to warrant in many other cases, inferences and presumptions may be indulged where the facts and circumstances warrant such inferences in cases of this nature. It will be observed in examining the authorities above cited, that the inference of guilt has been specifically authorized and sustained in cases where a married man and woman who is not bis wife, have occupied a room alone for the purpose of a sleeping room, and a conviction was sustained. In some of the cases above referred to, upon proof that the parties were seen to enter a room alone at night and remain together during the night, inference of guilt by the jury and conviction were sustained. A conviction was also sustained in the State of Texas, where a man and woman were travelling about from place to place in a cart, although there was no testimony to' any act of adultery between them. In the case at bar, the defendants, were seen to enter the room alone at night, and the appellant was seen standing at the door in the morning when the woman was rising from her bed and putting on her shoes. The fact is undisputed that these parties lived together and slept in the same room for many years, and that the appellant was living apart from his wife all these years; that they travelled about from place to' place as if husband and wife, and wherever they went they appeared to live together as husband and wife; and although the defendants denied the actual commission of the act charged, the jury were undoubtedly warranted in their inference of guilt, if, under the circumstance shown by the evidence, they were so satisfied of guilt beyond a reasonable doubt. It will be observed that the court simply instructed the jury in the portion of the instruction objected to, that “If the defendants occupied the sleeping apartment-alone as a sleeping room, that circumstance alone raises a presumption of guilt.” These words standing alone would be very questionable.
But the instructions taken as a whole, were very favorable to the appellant, in that the jury were told that the appellant was presumed to be innocent, and that they would not be warranted in finding the appellant guilty unless they were satisfied of his guilt of having sexual intercourse with the defendant, Petra Romero, beyond a reasonable doubt.
And as to the character of the evidence, the court instructed the jury that “direct proof of sexual intercourse between the defendant is not necessary in ordér to justify the jury in finding a verdict of guilty, but evidence is necessary which is sufficient to show circumstances from which the jury may infer the guilt of the parties, that is, such circumstances as would lead the guarded discretion of a reasonable and just man to conclusions of guilt. There is, however, no presumption of guilt, unless such circumstances are shown by the gov-vernment as would justify a reasonable person to he satisfied beyond a reasonable doubt that the defendants had ■sexual intercourse with each other within three years previous to March 1,1901.”
We are of the opinion, that the instructions objected to, were proper instructions, and that there was no error in giving them.
Counsel for appellant assigns for error, the court’s ■charge to the jury “that if the offense was committed within three years prior to the first day of March, 1901, then the jury were permitted to include in their consideration fourteen days not properly included within the period of the statute of limitation, for the reason that the indictment was returned into court on the fourteenth day of March, 1901, and the period of limitation should have been stated to be three years from that date. Upon conviction of the appellant in the court below, the presumption of innocence in his favor ceased. Therefore in the appellate court it must be shown not only that error occurred in the trial court, but that such error was prejudicial to the appellant. This has not been made to appear upon the record presented to us in this case. The evidence disclosing the fact that the appellant and Petra Romero lived and associated together and slept in the same room for many years, including the three years rightfully within the statute of limitation, and while counsel may suggest that the offense, if committed at all, was committed during the fourteen days, which he ■claims were not within the statute, there is nothing upon this record to justify the court in so concluding, but much that would justify the court in concluding that the offense was committed within the three years prior to the return of the indictment. But counsel admit that this matter was not brought to the attention of the court below in the motion for a new trial, but was discovered by him after the motion for new trial had been overruled, and was for the first time raised in this court in the assignment of errors. This court has repeatedly held that errors alleged to have been committed in the trial court to which no exception was taken and brought to the attention of the trial court, will not be heard in this court. This assignment of error falls clearly within the decisions of this court to that effect, and even if merit was conceded to this assignment, it can not avail the appellant when raised in this court for the first time.
There being no error disclosed by the record in this case, the judgment of the lower court will be affirmed with costs.
Dissenting Opinion
I dissent on the ground that the instruction, that the fact that defendants occupied a sleeping apartment alone as a sleeping room raised a presumption of guilt, was a direct invasion by the court of the province of the jury. Conclusive as such fact might be, the jury, not the court, should draw the inference. Bush, Stat. Crimes, sec. 689.
