State v. Greene

• Decision Date: 02 December 1910
• Docket Number: 2045
• Citation: 38 Utah 389,115 P. 181
• Court: Utah Supreme Court
• Parties: STATE v. GREENE

115 P. 181

38 Utah 389

STATE v. GREENE

No. 2045

Supreme Court of Utah

December 2, 1910

On Application for Rehearing, April 19, 1911.

APPEAL from District Court, Seventh District; Hon. A. H Christensen, Judge.

Webster Greene was convicted of adultery. He appeals.

AFFIRMED.

James W. Cherry and Thurman, Wedgwood & Irvine for appellant.

A. R Barnes, Attorney-General, for the State.

STRAUP C. J. FRICK, J., concurs. McCARTY, J, dissenting.

OPINION

STRAUP, C. J.

The defendant was convicted of the crime of adultery. It was alleged in the information that he, a married man, committed the crime with Madge Morey, an unmarried woman, in Sanpete County, on July 18, 1906. Evidence was introduced by the state tending to show that the defendant in 1906, and for more than ten years prior thereto, resided at Mt. Pleasant, Sanpete County, and that Madge Morey in July, 1906, and for about a year prior thereto, also resided at that place, and that she during that time lived with the defendant and his family. Considerable evidence was had tending to show that the defendant was reputed to be a married man; that his wife's name was Grace Greene, and that they had lived together at Mt. Pleasant as husband and wife for more than ten years; and that Madge Morey, about twenty years of age, was reputed to be an unmarried woman. An affidavit made by the defendant in October, 1903, in a certain cause, was also introduced in evidence in which the defendant deposed that he "is and has been for ten years last past a married man, and is required to and does support Grace Greene, his wife, who resides with him at Mt. Pleasant, Sanpete County, Utah." A warranty deed executed by the defendant and Grace D. Greene in April, 1906, was also introduced in evidence, in which it was recited that "Webster Greene and Grace D. Greene, his wife, grantors, of Mt. Pleasant, Sanpete County," conveyed and warranted certain real estate therein described. In the acknowledgment of that instrument it was also recited that "Webster Greene and Grace D. Greene, husband and wife, the signers of the above instrument," duly acknowledged its execution. About the 31st day of December, 1906, Madge Morey left Mt. Pleasant and went to the Florence Crittenden Home, in Los Angeles, California, "a home for betrayed girls, a maternity home," and remained there until the 15th day of August, 1907. There she gave birth to a child on the 18th day of April, 1907. While she was at the home the defendant, from Mt. Pleasant, wrote several letters to her, in one of which he sent her money and cautioned her not to "mention receiving any money" and requested her to put a mark on one of the corners of the letter to be written by her, and stated, "I will know what it means." He signed the letter "Uncle." In another letter written to her while she was at the Crittenden Home, in which he also referred to himself as "uncle," he stated: "Dear Madge: Please do not think because your uncle has not written you that he has forgotten you or blames you in any way at all for anything that has transpired, for such is not the case. He has the deepest feelings of sympathy for you and wishes to do all possible he can for you, but to avoid any serious complications he has been forbidden by his attorney to do anything. He hopes you will not make a confident of Knudsen (the sheriff of Sanpete County) or Petersen (who was a witness for the state), or any one else for that matter. If any one comes to you under any pretext he hopes you will simply say to them you have nothing to say. They can't force you to say anything or to leave the state unless you desire to do so, and as soon as this matter is settled up your uncle will see that you are taken care of. He has wanted to write you often, but for fear of more trouble has been forbidden to do so, but if you stand pat he will stand by you. Burn this. Go to the country if you have a good chance, and advise your Aunt Grace where you are so you can be cared for. Your uncle has regretted many, many times that he could not write you, but will no doubt make up for it when things are settled up." In June, 1907, the sheriff and county attorney of Sanpete County called on the defendant at his place of business at Mt. Pleasant. The sheriff said to him: "I have come to arrest you, Web." The defendant said: "What for?" The sheriff replied: "The Madge Morey business," or "matter." The defendant asked: "What proof have you got?" There upon the sheriff produced and handed to the defendant a writing or affidavit purporting to have been made and signed by Madge Morey in Los Angeles, in words and figures as follows: "Office of the District Attorney, Los Angeles County. State of California, County of Los Angeles -- ss.: Madge Morey, of Los Angeles, California, being first duly sworn, says: That she is the mother of an infant son born in Los Angeles, California, April 18, 1907, and that one Webster Greene, of Mt. Pleasant, Utah, is the father of said infant son; that she is unmarried and had sexual intercourse with said Webster Greene at divers times and occasions at Mt. Pleasant, Utah, between February 1, 1906, and October 1, 1906, both inclusive. Madge Morey. H. G. S. McCartney. [Seal.]" The defendant, after taking and reading the writing, dropped his head, and said: "I didn't think Madge would do that." He was asked if his wife suspected him "in this matter." He said: "No, I do not know how Grace is going to take this." The county attorney told him that under the circumstances he would be obliged to file a complaint against him. The defendant asked him if he would not file it before a particular justice, naming him, and said: "I will never go to the penitentiary, boys," and asked, if he "should wake up dead some night, would my bondsmen be liable?" The county attorney said: "I think as long as they could produce your body, Web, they would be all right." The defendant then said: "I don't believe that baby is mine." "Well," said the county attorney, "you don't deny having sexual intercourse with Madge Morey, do you?" The defendant said: "No, sir; I do not" -- and that "there are some things that will never be told in this transaction." The defendant then said: "Couldn't I put up a fine and get out of this?" The county attorney replied that in a case of that kind the district attorney and the judge would have to be parties to it. The defendant then was asked if he would be willing to plead guilty to fornication, and he replied that he would. The county attorney saw the defendant the next morning and told him that he was very doubtful about getting the defendant through on a fornication charge. The foregoing is, in substance, all the evidence produced by the state. The defendant offered no evidence.

The defendant, on appeal, urges that the evidence is insufficient to show that he was a married man. The contention made by his counsel in this regard is that, to effect a legal marriage it is necessary "for competent persons to declare their intention in writing; to secure the written authorization of the state; to contract in the presence of witnesses; and to be declared husband and wife by a duly authorized person. The marriage relation can be created in no other way. No amount of cohabitation, holding out, admissions, declarations, or repute, in itself, can cause the marriage relation to exist. How, then, can proof of these facts even tend to prove a legal marriage?" In State v. Moore, 36 Utah 521, 105 P. 293, we held that in a prosecution of an offense where proof of the marriage of the accused is essential that fact may be proved by his admissions of the fact. We think the evidence here was sufficient to justify a finding that the defendant was a married man.

It is further urged that, since it was alleged in the information that Madge Morey was an unmarried woman, it was essential for the state to prove such fact, and that the proof that she was reputed to be a single and unmarried woman was not sufficient. We think there was sufficient evidence to show that she was unmarried.

Furthermore, we are of the opinion that the proof that the defendant was a married man, and that he was married to a woman other than Madge Morey, and the further proof that he had sexual intercourse with the latter, was sufficient to show him guilty of adultery, whether Madge Morey was a married or unmarried woman. (Section 4210, C. L. 1907.)

Complaint is also made of the ruling of the court in admitting in evidence the writing or affidavit purporting to have been signed or made by Madge Morey, and which was handed to and read by the defendant as heretofore stated. It is urged that it was improperly received upon the ground of hearsay. Had the writing been received as the written declaration of the declarant, and as primary evidence of the facts therein declared, of course, the writing would have been hearsay. But it was not received for such purpose. It was admitted for the purpose of showing what it was that was submitted to and read by the defendant, and to show the admissions made by him with respect to the statements contained in the writing. And to such effect was the jury instructed. The writing was received as a part of a transaction had with the defendant, and to explain and make pertinent the replies and statements which he made in respect of the statements contained in the writing. His answers could not fully be understood without showing what was said to him or shown him, the thing responded to by him. What a party himself admits to be true may reasonably be presumed to be so. The weight and value of such testimony is quite another question. That necessarily will vary according to circumstances. Had the sheriff and the county attorney orally stated to the defendant that he was the father...