State v. Distefano

• Decision Date: 30 November 1927
• Docket Number: 4542
• Citation: 262 P. 113,70 Utah 586
• Court: Utah Supreme Court
• Parties: STATE v. DISTEFANO

262 P. 113

70 Utah 586

STATE v. DISTEFANO

No. 4542

Supreme Court of Utah

November 30, 1927

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

James Distefano was convicted of having carnal knowledge of a female under the age of 18 years and over the age of 13 years, and he appeals.

AFFIRMED.

Thomas O'Donnell, of Vernal, and Robert G. Porter, of Duchesne for appellant.

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

HANSEN J. THURMAN, C. J., and CHERRY and GIDEON, JJ., STRAUP, J concurring.

OPINION

HANSEN, J.

The defendant was convicted of the crime of having carnal knowledge of a female under the age of 18 years and over the age of 13 years. Motion for new trial was filed and denied, and defendant was sentenced to serve an indeterminate term in the state prison as provided by law. Defendant appealed.

At the time the cause was called for trial one of defendant's counsel announced that the defendant was ready. Other counsel objected to the entire panel and venire of jurors as drawn. The objection was based upon section 3610, Compiled Laws Utah 1917, which provides:

"At least fifteen days before any term of the court at which a petit jury shall be required by law, or a grand jury be ordered by the court, the clerk of the county where such court is to be held shall draw from the jury box such number of names to serve as petit jurors and such number to serve as grand jurors as the judge may verbally, by letter, or by telegram, direct."

The venire was drawn October 13, 1926, and this cause was called for trial on October 19, 1926. It appeared that seven of the jurors drawn had not reported at the time the objection to the venire was made. After some argument the following colloquy occurred between the court and one of counsel for defendant:

"The Court: As I understand, Mr. O'Donnell, your ground of challenge is, first, that the venire was not issued on time, that is, within fifteen days before the opening of the term; second, you take the position that those who were summoned had not had an opportunity to be served?"

"Mr. O'Donnell: No; those who are here present. I am not objecting to the manner of service."

Thereupon the court denied the challenge of the venire of jurors, and defendant excepted. Thereupon the names of eight jurors were drawn by the clerk. Of the names of the jurors drawn, seven were present and one absent. The jurors who were present were examined by counsel and the court then adjourned until the following day, when all of the jurors except those excused for cause were present. The juror whose name was drawn on the first day was among those who reported on the second day when the court proceeded to select a jury to try this cause.

It would seem clear that the defendant, through his counsel, waived his objection to the venire of jurors as to those who were present on the first day. As all the other jurors constituting the venire who were not excused for cause reported before the jury was completed, it is difficult to see wherein the defendant could have been prejudiced because they were not present on the first day. It is quite generally held that statutory provisions regarding the drawing and summoning of juries is directory and not mandatory. 16 R. C. L. p. 230, § 48; Wharton's Criminal Procedure (10th Ed.) vol. 3, p. 2266, § 1827; 35 C. J. p. 269, § 226; State v. White, 40 Utah 342, 121 P. 579. We are therefore of the opinion that the defendant is not entitled to reversal of the judgment against him, in the absence of a showing that he was prejudiced because of the fact that the jury which tried him was drawn 6 days before his trial instead of at least 15 days before the opening of the term of court at which he was tried.

The district attorney, in his opening statement to the jury, stated in substance that the state relied for a conviction upon an act of sexual intercourse that the evidence would show took place on or about September 8, 1926, at Tabiona, Duchesne county, Utah; he further stated that he expected to offer evidence of two other acts of sexual intercourse between defendant and prosecutrix which occurred prior to the act relied upon; that the evidence of the prior acts would be presented for the sole purpose of showing circumstances which might tend to prove the act relied upon. While the district attorney was stating to the jury what the evidence would show as to time, place, and circumstances of the two prior acts of sexual intercourse, counsel for the defendant objected to the statement on the part of the district attorney of the details of any claimed prior acts of sexual intercourse. Thereupon, the trial court stated to the jury:

"Of course, the statement, gentlemen of the jury, is made as to what the district attorney expects to prove. It is simply made to show you the outline of the testimony. Counsel for the defendant will be given the same opportunity to make a statement as to what they expect to prove. The court will instruct you later that the statement of counsel is not evidence, but merely a statement of what they expect to prove, to enable you to follow the testimony when it is given. The objection will be overruled."

Defendant's counsel excepted to the court's ruling and assigns such ruling as error. No error was committed in this respect. The opening statement of the district attorney was eminently fair. In the opening statement to the jury counsel may properly fully state all of the material facts which the evidence will establish, but not facts which the party is not able to prove and none that cannot be supported by legal evidence. Bishop's Criminal Procedure (2d Ed.) vol. 2, p. 791, § 969.

The state offered evidence tending to show that the prosecutrix, at the time of the act of sexual intercourse charged in the information, was not quite 15 years of age; that she resided in Tabiona, Duchesne county, Utah; that she had been working at the home of defendant; that an act of sexual intercourse occurred between prosecutrix and defendant on or about August 9, 1926, in the seat of an automobile truck near the front gate of an inclosure some distance from where prosecutrix resided; that another such act occurred near a large gate a short distance from where the prosecutrix resided about a week after the first act testified to; that another act occurred near Stockmore on or about August 21, 1926, and another, the one relied upon by the state, by a big cottonwood tree near an irrigation ditch south of the home where the complaining witness resided. On cross-examination prosecutrix testified that the last time she had sexual intercourse with the defendant was on September 8, 1926, and that an act of sexual intercourse had occurred between her and defendant early in September down near a big cottonwood tree at about the same place as that of September 8, 1926; that the act of September 8, 1926, was after a Sunday school meeting had been held at the home of the defendant.

Defendant is a married man, with a wife and six children residing with him at Tabiona, Duchesne county, Utah. He denied ever having had sexual intercourse with prosecutrix. He offered evidence tending to show he was home on the night of September 8, 1926, when prosecutrix claims he had sexual intercourse with her, and that he did not see the prosecutrix on that day or night; he also offered evidence tending to show that the the Sunday school meeting that the state's witnesses placed as September 8th was held on September 15, 1926.

The trial court gave, among others, these instructions to the jury:

"You are instructed, gentlemen of the jury, that evidence has been offered upon the question of whether or not the defendant in this action did or did not have sexual intercourse with the complaining witness, Adelaide White, prior to the 8th day of September, 1926, and in this connection you are instructed, gentlemen of the jury, that the defendant, James Distefano, is not now on trial for any act of sexual intercourse other than the act alleged to have been committed on the 8th day of September, 1926, across the irrigation ditch, near a big tree, south of the home of the complaining witness, Adelaide White, and evidence of the other alleged acts of sexual intercourse has been admitted for the purpose of your consideration solely to assist you in determining the probability or improbability of the alleged act of sexual intercourse which is alleged to have occurred on or about the 8th day of September, 1926. And in this connection, even though you should believe and find to your satisfaction, and beyond a reasonable doubt, that an act of sexual intercourse was committed by the defendant with the complaining witness, Adelaide White, at a time and place other than that relied upon by the state, you are not at liberty to find the defendant, James Distefano, guilty of the crime for which he is now on trial. That is to say, the defendant is now on trial for an act of sexual intercourse alleged to have been committed on or about the 8th day of September, 1926, a short distance south, and across the ditch, near a big tree, from her home, as testified to by the complaining witness, Adelaide White.

"You are instructed, gentlemen of the jury, that if you should find to your satisfaction, and beyond a reasonable doubt, an act of sexual intercourse was committed by James Distefano and Adelaide White a short distance south of her home, across the ditch, near a big tree, under the circumstances testified to by Adelaide White, the exact date of such sexual intercourse is immaterial. That is to say, it is immaterial whether such act of sexual intercourse occurred on September 8 or September 15, 1926."

At the time the court first...