State v. Eggleston

• Decision Date: 01 August 1904
• Citation: 45 Or. 346,77 P. 738
• Parties: STATE v. EGGLESTON. [*]
• Court: Oregon Supreme Court

77 P. 738

45 Or. 346

STATE v. EGGLESTON. ^[*]

Supreme Court of Oregon

August 1, 1904

Appeal from Circuit Court, Multnomah County; Arthur L. Frazer Judge.

John Eggleston was convicted of adultery, and appeals. Affirmed.

George J. Cameron, for appellant.

Robert G. Morrow, for the State.

MOORE C.J.

The defendant was tried upon an information the charging part of which is as follows: "The said John Eggleston on the 24th day of May, A.D.1903, in the county of Multnomah and state of Oregon, then and there being did then and there unlawfully and feloniously commit the crime of adultery with a certain female person commonly known by the name of Florence Cline, he the said John Eggleston then and there being a married man and the husband of Alice A. Eggleston and she the said Florence Cline not being his wife contrary," etc.; and, having been found guilty thereof he appeals from the judgment which followed.

It is contended by his counsel that the court erred in overruling a demurrer to the information, interposed on the ground that it did not state facts sufficient to constitute a crime. It is argued that, the words "then and there" having been omitted after the word "and" and before the words "the husband of," etc., the information does not allege that on May 24, 1903, the defendant was the husband of Alice A. Eggleston, and hence the circumstances necessary to constitute the commission of the crime are not averred. An information, which takes the place of an indictment (B. & C. Comp. § 1259), is sufficient, so far as challenged herein, if the act charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended ( Id. § 1314). Our statute prescribing the person authorized to make a complaint in a prosecution for the crime of adultery, and who may be found guilty thereof, so far as deemed material herein, is as follows: "A prosecution for the crime of adultery shall not be commenced except upon the complaint of husband or wife. *** When the crime of adultery is committed between a married woman and an unmarried man, the man shall be deemed guilty of adultery also, and be punished accordingly." Id. § 1917. The information not having stated that Florence Cline was, on May 24, 1903, a married woman, a prosecution against the defendant for the crime of adultery could only be commenced by his wife, and, this being so, the necessity of alleging that he on that day had a wife living is important. An information having once stated time with certainty, may refer to it, in respect to other facts alleged, by the terms "then" and "there" without repeating it. State v. Thurstin, 58 Am.Dec. 695. In that case the indictment stated that the defendant, at Avon, "on the 25th day of March, 1851, did commit the crime of adultery with one Emeline Whitehouse, the wife of one Solomon H. Whitehouse, she, the said Emeline Whitehouse, being a married woman, and the lawful wife of him, the said Solomon H. Whitehouse," and it was held to be insufficient; the court saying: "In this case the fact of committing the crime of adultery, at a certain time and place, with Emeline Whitehouse, is first alleged against the accused; but to the fact that she was a married woman, and the wife of another, no time is averred, nor is there a reference, to the certain time before stated, by the words 'then and there,' or any equivalent terms. Although we can readily suppose what was intended by the averments, yet in criminal pleading nothing can be taken by intendment. The allegation, 'being a married woman, and the lawful wife of Solomon H. Whitehouse,' has reference to the time of finding the indictment, and not to the time of the offense, in strictness of criminal law." In the case at bar, however, the averment, "he, the said John Eggleston, then and there being a married man, and the husband of Alice A. Eggleston," etc., does not, in our opinion, come within the rule announced in the case to which attention is called; but the clause "then and there being," in the language quoted, by the use of the word "and," which follows, applies by implication as much to the words "the husband" as it does to the phrase "a married man," and is tantamount to an averment, by reference to the time once stated with accuracy in the information, that on May 24, 1903, the defendant was the husband of Alice A. Eggleston. If the clause adverted to had been inserted in the information where defendant's counsel insists it should have been, it would have violated the rules of grammar, and constituted a repetition, disapproved by the statute. B. & C. Comp. § 1303. The omission was, therefore, of no importance. Commonwealth v. Langley, 14 Gray, 21; State v. Doyle, 15 R.I. 527, 9 A. 900.

It is contended that the court erred in admitting, over defendant's objection and exception, testimony tending to show that Florence Cline bore the reputation of being a common prostitute. Positive evidence of the commission of adultery is rarely possible, and, as crimes against morality and decency must not go unpunished, a resort must be had to circumstantial evidence, from which the overt act charged may be inferred. In prosecutions for rape, evidence of the previous unchastity of the female alleged to have been assaulted is admissible on the part of the defense as a circumstance from which consent might reasonably be inferred. State v. Ogden, 39 Or. 195, 65 P. 449. So, too, in cases of seduction, evidence of the reputation of the female for lewdness is admissible as a circumstance tending to show that the act complained of may not have been the cause of her going astray. B. & C. Comp. § 1921. In prosecutions for adultery, however, a diversity of judicial utterance is observable, but we believe that reason renders such testimony admissible, from which the overt act may be inferred. Thus, in Commonwealth v. Gray, 129 Mass. 474, 37 Am.Rep. 378, it was held at the trial of an indictment for adultery that evidence of the reputation for unchastity of the woman with whom the defendant was alleged to have committed the act was competent. To the same effect is the case of Blackman v. State, 36 Ala. 295. In our opinion, no error was committed in receiving the testimony in question.

It is insisted by defendant's counsel that an error was committed in introducing, over defendant's objection and exception, testimony tending to show that the defendant and Florence Cline, at other places, and prior to the time specified in the information, had been guilty of the crime of adultery. In Commonwealth v. Nichols, 19 Am.Rep. 346, upon the trial of an indictment for adultery, it was held that evidence of other acts of adultery, committed by the same parties, near the time alleged, though in another county, was admissible to support the charge. In State v. Bridgman, 24 Am.Rep. 124, on the trial of an indictment for adultery, it was held that evidence of improper familiarity and adultery, both before and after the commission of the crime alleged, was admissible; the court saying: "The offense charged in this case cannot ordinarily be committed till the restraints of natural modesty and the safeguards of common deportment and conventionality have been overcome by gradual approaches, and the relations of the parties have been changed from those usually existing between the sexes to the most intimate. *** Thus it appears that the true relation of the parties to each other in this respect is very material and proper to be shown, and there could be nothing more potent to show that no barrier of modesty or manners was remaining between the parties, and to show the real relation between them, than the fact that they were in the habit of committing the act from time to time. *** But this relation of intimacy, as before suggested, does not usually take place suddenly, and the fact of its existence at any time to that extent that intercourse was actually had would be some evidence that the relation had been existing previously, and, offered with evidence of other acts so as to show the relation to be continuous through a period covering the time in question, would be quite material and convincing." The rule is well settled that on the trial of a person charged with the commission of the crime of adultery evidence of other acts of that kind, or of familiarity between the same persons, is relevant, as tending to show the adulterous disposition of the parties at the time alleged in the information. 2 Greenl.Ev. § 47; 1 Jones, Ev. § 143; Underhill, Cr.Ev. § 381; Wharton, Cr.Ev. § 35; 1 Cyc. 961; State v. Scott, 28 Or. 331, 42 P. 1; State v. O'Donnell, 36 Or. 222, 61 P. 892; State v. Snover, 47 A. 583.

It is maintained by defendant's counsel that no testimony was introduced at the trial tending to show that the crime was committed in Multnomah county; nor was the jury instructed that, before they could find defendant guilty, they must find that he committed the crime charged in that county. Though the bill of exceptions has attached thereto the testimony given, the court not having been requested to instruct the jury to acquit the defendant by reason of any failure of proof, it will be presumed that the testimony was sufficient in this respect. It is true the jury were not told that they must find that the crime was committed in the county alleged, but, as no request so to instruct was made by the defendant, any failure of the court in this particular is unavailing. State v. Foot You, 24 Or. 61, 32 P. 1031, 33 P. 537; State v. Meldrum, 41 Or. 380, 70 P. 526.

The court, over objection and exception, admitted in evidence alleged declarations of Florence Cline, not made in the presence of the...