State v. Fertig

• Decision Date: 19 June 1951
• Docket Number: No. 7593,7593
• Citation: 233 P.2d 347,120 Utah 224
• Parties: STATE, v. FERTIG.
• Court: Utah Supreme Court

Page 347

233 P.2d 347

120 Utah 224

STATE, v. FERTIG.

No. 7593.

Supreme Court of Utah.

June 19, 1951.

John F. Wahlquist, Maurice Richards, Ogden, Wilford W. Kirton, Jr., Salt Lake City, for appellant.

Clinton D. Vernon, Atty. Gen., G. Hal Taylor, Asst. Atty. Gen., Glenn W. Adams, Dist. Atty., Ogden, for respondent.

WOLFE, Chief Justice.

Appellant, Samuel Fertig, also known as Bob O'Dare, hereinafter referred to as the defendant, was found guilty of committing sodomy with Jewel Green, a professional prostitute. She testified that the defendant committed the offense by having copulation in her mouth in violation of Section 103-51-22, U.C.A.1943. The crime took place in a hotel room in Ogden, Utah, shortly after 3:00 o'clock a. m. August 13, 1949. Also present in the room on this occasion was a young girl, 17 years of age, named Idella Burt. Idella likewise testified that the defendant committed the act of sodomy with Jewel Green. These two women were the only state witnesses. The issue in the case is whether Idella was an accomplice whose testimony could serve as competent corroborative evidence to sustain the conviction. Our statute, Section 105-32-18, U.C.A.1943, provides: 'A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence * * *.'

The jury was instructed that if it believed defendant committed the act of sodomy with the witness Jewel Green, then she was an accomplice and her testimony must be corroborated by other evidence. It was further charged that if it found that Idella was an accomplice, then the necessary corroboration could not be supplied by her testimony.

From the record it appears that Idella Burt was a loose-living young girl who had given her person to a number of men, one of whom induced her to visit Jewel Green for the purpose of learning to become a professional prostitute. Idella became the pupil. Jewel was the teacher. On the evening the offense was committed, the two women went to the Key Club on 25th and Grant Streets in Ogden, Utah. There, Jewel introduced the defendant to Idella. The three of them spent the evening there, drinking and gambling, then all left together. They drove around the city for a short time in the defendant's automobile, discussing prostitution and then went to defendant's hotel room. This had been decided upon earlier in the evening by the defendant and Jewel Green. Idella did not know that the purpose of visiting the room was to show her how to commit sodomy. After defendant and the two women had arranged themselves in the room in preparation for Idella's education, Jewel asked Idella if she wanted to commit the act of sodomy, but Idella appeared somewhat reluctant. Jewel Green thereupon volunteered to demonstrate, and she testified that she committed the crime with the defendant. Idella in like manner testified that the offense was committed by Jewel for the purpose of teaching her (Idella) how to become a prostitute. On cross-examination, Idella admitted that she did the same thing that Jewel did; that she too, performed the act.

The only real defense in the case was that Idella as well as Jewel was an accomplice and therefore the jury must acquit the defendant because there was no corroborative evidence to sustain a conviction. The examination of witnesses and the instructions to the jury were directed towards this vital issue in the case.

In State v. Bowman, 92 Utah 540, 70 P.2d 458, 461, 111 A.L.R. 1393, we said: 'In this State we have no statutory definition of an accomplice, but the court has construed the word to refer to one who is or could be charged as a principal with the defendant on trial. State v. Coroles [74 Utah 94, 277 P. 203]; State v. Cragun, 85 Utah 149, 38 P.2d 1071. 16 C.J. 673 states, 'One who could not be convicted of the crime with which the defendant is charged is not an accomplice, no matter how culpable his conduct in connection therewith may be." Our statute, Section 103-51-22, U.C.A.1943, makes it a crime for the woman as well as the man to commit sodomy as performed in this case. Nevertheless, Idella cannot be indicted for the same crime as the defendant, i. e. 'committing sodomy with Jewel Green,' and therefore her perpetration of the act does not constitute her an accomplice as a matter of law. The law was correctly stated by the court when one sentence of its definition told the jury that: 'An accomplice is one who is liable to prosecution for the identical offense charged against the defendant on trial.'

Whether Idella aided and abetted the principal offenders so as to constitute her an accomplice for giving assistance or encouragement is a question of fact for the jury: 'If the facts themselves are in dispute as to whether the witness did or did not do the things which, if he did do them, would make him an accomplice, then it is for the jury to determine whether he is in fact an accomplice or not.' State v. Coroles, supra [74 Utah 94, 277 P. 205]. The first assignment of error is the court's refusal to instruct the jury on defendant's theory of the case. Defendant contends this involved the refusal to give his requested instruction No. 5. The record shows that almost immediately after Idella left the defendant's room, she went to the room of a Jimmy Roamer to keep a prearranged date made by Jewel Green, and there she committed the same act upon him that she had learned from Jewel Green. The argument is that if Idella had not gone to defendant's room to learn what she would have to know for her date with Jimmy Roamer, the act would never have been done; that Jewel Green committed the act only to demonstrate it to Idella so that she would know how to...