State v. Anderton

Decision Date07 December 1926
Docket Number4450
Citation252 P. 280,69 Utah 53
CourtUtah Supreme Court
PartiesSTATE v. ANDERTON

Appeal from District Court, Fourth District, Duchesne County; George P. Parker, Judge.

Gordon Anderton was convicted of adultery, and he appeals.

AFFIRMED.

Thomas O'Donnell, of Vernal, and Ray E. Dillman, of Roosevelt for appellant.

Harvey H. Cluff, Atty. Gen., and L. A. Miner, Asst. Atty. Gen., for the State.

THURMAN J. GIDEON, C. J., and FRICK and CHERRY, JJ., concur. STRAUP J., dissenting.

OPINION

THURMAN, J.

The defendant was convicted of the crime of adultery in the district court of Duchesne county and sentenced to an indeterminate term of imprisonment in the state prison, from which judgment he appeals.

The complaint before the justice of the peace upon which the preliminary examination was held alleged that the defendant--

"unlawfully, willfully, and feloniously did commit the crime felony as follows, to wit, the said Gordon Anderton did then and there willfully, unlawfully, and feloniously, with force and violence, ravish and carnally know and have sexual intercourse with the said Shirley Goff, who was then and there not the wife of the said defendant, and without her consent and against her will and resistance, and overcoming her resistance with force and violence," etc.

It thus appears that the complaint before the justice of the peace charged in appropriate language the crime of rape, as defined in the statute. Comp. Laws Utah 1917, § 8105.

The defendant was held to answer to the district court. The District Attorney filed an information in the case the charging portion of which reads as follows:

"The said Gordon Anderton, on or about the 15th day of May, A. D. 1925, at the county of Duchesne, in the state of Utah, willfully, unlawfully, forcibly, and feloniously in and upon one Shirley Goff, a married female person, who was not then and there the wife of the said Gordon Anderton, violently and feloniously did make an assault, and her the said Shirley Goff, then and there, and at the time and place aforesaid, feloniously did ravish and carnally know and accomplish with her an act of sexual intercourse by force and violence and against her will and resistance, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Utah."

The only substantial difference between the complaint and the information is the fact that in the information it is alleged that the victim of the assault was a married woman. This difference, however slight it may appear to the casual reader, constitutes the bone of contention on this appeal. By injecting into the information the fact that the female assaulted was a married woman, an element was introduced not essential to the crime of rape, but was essential to the crime of adultery. Comp. Laws, supra, § 8088. It must therefore be conceded that the information charges two offenses--rape and adultery--for the latter of which defendant did not have a preliminary examination, as provided in the State Constitution, art. 1, § 13.

But it is admitted by counsel for defendant that defendant waived a preliminary examination for the crime of adultery by not moving to quash the information. The right to waive a preliminary examination is provided for in the section of the Constitution above referred to. See also, Comp. Laws, supra, § 8880.

Notwithstanding the waiver of a preliminary examination for adultery, the defendant had the right to interpose a special demurrer to the information on the ground that it charged more than one offense. Comp. Laws, supra, § 8889, subd. 8. Certain offenses may be joined in separate counts, as provided in section 8834, but rape and adultery are not included in the list. Defendant, however, did not file a special demurrer on the grounds of duplicity, or at all, but sought to raise the objection after a plea of not guilty, and after the jury were impaneled and sworn to try the case. His counsel then objected to any evidence being received in support of the information unless the state would elect upon which charge it would try the defendant--whether for rape, or for adultery. If the state elected to try the defendant for rape, defendant was ready for trial; if for adultery, defendant had not had a preliminary examination and would insist upon his demurrer to the evidence. Such was the contention of the defendant, in the course of the colloquy between counsel and the court.

If the information states a public offense, no matter how informal or inartificial, it is clear, on elementary principles, that defendant could not object to the admission of evidence after he had pleaded not guilty and the jury had been impaneled and sworn. The defendant was then in jeopardy.

The objection as to duplicity urged by defendant, together with his motion to compel the state to elect, might all have been disposed of by the interposition of a special demurrer before pleading to the issue of fact. That would have been an orderly procedure and is clearly contemplated by the Code. The district attorney, however, announced that he would elect to proceed on the charge of rape, reserving his contention that the crime of adultery was included. That the crime of adultery, as well as rape, is included in the information is an undisputed fact. That every element necessary to constitute either crime is set forth in the information in unmistakable language must also be conceded. So that we have before us a clear-cut case, in which two distinct offenses are alleged in the information.

It cannot be successfully contended that the crime of adultery is necessarily included in the crime of rape. It is not like murder, which includes all the lower degrees of unlawful homicide, or grand larceny, which includes petit larceny, or rape which includes attempt to commit rape, assault with intent to commit rape, simple assault, and, with proper averments, may include battery. There are instances in which the higher crime is divided into degrees, the lower degrees being included in the higher. It is in cases of this kind that the court is required to instruct the jury:

"When it shall appear that the defendant has committed a public offense, and there is reasonable ground of doubt in which of two or more degrees he is guilty, he must be convicted of the lowest of such degrees only." Comp. Laws, supra, § 8979.

The trial court, in its instructions to the jury, applied that principle to the instant case and instructed the jury that if they found the defendant guilty of either rape or adultery, but were not satisfied as to which he was guilty, it would be their duty to find him guilty of adultery.

The court, in another instruction, instructed the jury that the crime of adultery was included within the crimes charged, in the information and submitted to the jury blank forms of verdict--one for rape, one for adultery, and one, not guilty.

These instructions are assigned as error. Appellant's contention is that the crime of adultery is not included in the crime of rape, and therefore the conviction for adultery was contrary to law. The state's contention is that the crime of adultery is included in the crime charged in the information, and hence the verdict was not contrary to law. Both sides quote and rely on Comp. Laws Utah 1917, § 9025, which reads:

"The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

Because of the conflicting views of the parties, it becomes necessary to interpret the meaning of the section last quoted; not that it is controlling in the instant case, for reasons hereinafter stated, but because it may affect cases arising in the future.

The writer is unable to concur in the views of the Attorney General that the section last quoted means that the district attorney may insert words in an information wholly unnecessary to the principal crime charged, and thereby charge another offense and insist upon a conviction for such offense, merely because it was included in the information. While such an interpretation may be within the words of the statute, in my opinion, it is nevertheless a plain perversion of its meaning and clearly contrary to fundamental principles.

The district attorney elected to charge the defendant with the crime of rape. Such is the name given by him to the crime in the prelude to the charging clause of the information. Therefore the question is, Is adultery necessarily included in the crime of rape, as defined by the statute? In other words, Is adultery a lower degree of the crime of rape, or necessarily included within it? It certainly is not a lower degree of the crime of rape nor is it necessarily included within it. Any other interpretation of the statute might lead to the gravest kind of abuse and justify the district attorney in charging in the information offenses wholly incongruous and not necessary to the principal offense charged.

The Attorney General calls our attention to two cases decided by this court, upon which he relies State v. McDonald, 14 Utah 173, 46 P. 872, and State v. Jukanovich, 45 Utah 372, 146 P. 289. In the McDonald Case the defendant was charged with the crime of assault with intent to commit murder with a deadly weapon, to wit, a revolver, etc. He was found guilty of an assault with intent to do bodily harm. The validity of the judgment was challenged on appeal to this court, and the objection made that the necessary elements of the crime were not alleged in the indictment. While this court, by a process of reasoning with which I cannot agree, held that the indictment sufficiently charged the offense of which the...

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    ...even under the former code provision, failure to make a timely objection to the information constitutes waiver. State v. Anderton, 69 Utah 53, 64-65, 252 P. 280, 284 (1926). This point is therefore without E. Depositions of State Witnesses Prior to trial, defense counsel filed a notice of t......
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    ...have been part of Utah's statutory code since the state's early days. See Woolman, 84 Utah at 34-36, 33 P.2d at 645; State v. Anderton, 69 Utah 53, 252 P. 280, 282 (1926). ¶ 9 When Baker was decided in 1983, chapter 35 of Title 77 of the Utah Code was entitled "Utah Rules of Criminal Proced......
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    • August 7, 1930
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