State v. Gregorious

• Decision Date: 13 December 1932
• Docket Number: 5277
• Citation: 16 P.2d 893,81 Utah 33
• Court: Utah Supreme Court
• Parties: STATE v. GREGORIOUS

16 P.2d 893

81 Utah 33

STATE v. GREGORIOUS

No. 5277

Supreme Court of Utah

December 13, 1932

Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.

Frank Gregorious, whose true name is Gregory Pangalakas, was convicted of having committed an infamous crime against nature, and he appeals.

REVERSED AND REMANDED FOR NEW TRIAL.

N. J Cotro-Manes and E. F. Allen, both of Salt Lake City, for appellant.

Geo. P Parker, Attorney General, and L. A. Miner, Deputy Attorney General, for the State.

STRAUP, J. ELIAS HANSEN and EPHRAIM HANSON, JJ., concur. FOLLAND, J., MELVIN C. HARRIS, District Judge, dissenting. CHERRY, C. J., did not participate.

OPINION

STRAUP, J.

The defendant was charged and convicted with having committed an infamous crime against nature and was sentenced to an indefinite term in the State Prison. He appeals. His first assignment relates to the examination by the court of some of the jurors on voir dire. By our statute, Comp. Laws Utah 1917, § 8927, it is provided that in criminal cases "the examination of the jurors shall be conducted by the judge," but that he may also permit counsel for either side to examine the jurors, but such examination by counsel shall be limited by the court; and that "no action of the court under this section shall constitute error except in cases of clear abuse of discretion." The complaint made, in effect, is that the manner in which the examination was conducted by the court tended to impress the jurors, though not so intended, with the duty to convict the accused to protect society. The particular questions asked one or more of the jurors and of which complaint is made are:

"Q. You are in favor of law enforcement, are you? A. Yes, sir.

"Q. You feel that the State must be protected, and the people of State and the society of the State must be protected against people who are committing crimes, do you? A. Yes, sir.

"Q. Your feeling in that regard does not inspire you to want to vote for the conviction of a man who might be innocent? A. No, sir.

"Q. You accord to every man who is accused of crime the benefit of the doubt, do you? A. Yes, sir.

"Q. The law imposes that duty upon you? A. Yes, sir.

"Q. The law of this State is that when a man is accused of crime the State must prove beyond a reasonable doubt that that man is guilty, or you must vote for an acquittal? A. Yes.

"Q. You are an officer of the court, and it is your bounden duty to use the best sense and judgment that you have to be as fair and honest as God has given you the wisdom to be in the trial of these cases. It is your bounden duty to protect innocent people who might be accused of crime, and enforce the law where the law has been violated, as an officer of the court. If you are unwilling to do that you are not and would not be a good juror. Now you are willing to do that are you? A. Yes, sir.

"Q. We do not want men to serve on juries who are afraid to vote for the right, whether that be for conviction or an acquittal. We want men to serve on juries who have the courage of their convictions, who have a keen sense of right and wrong, who are honest, who are fearless, who are in favor of enforcing the law, who are opposed to imprisonment of men who might be innocent. We don't want any doubt about that, neither with the jury nor with counsel nor anybody else in the case. We want it very plainly understood that what we want from the jury is a determination of the facts, and then an honest, conscientious, fearless judgment. I take it, of course, if you are called to serve that you will vote according to your feeling in the matter? A. Yes, sir."

We do not see anything substantial to the assignment. The record shows that further and other examinations of jurors were had, but what the character was of such examination, or what was developed thereby, is not made to appear. Not anything being shown to the contrary, it may be that from questions propounded and answers made or examinations had preceding the questions complained of, matters were developed which naturally called for the questions complained of. Further, we do not see anything objectionable to the questions propounded unless it be the last two questions, because they were more in the nature of admonitions to the jurors than of ascertaining state of mind. Yet, from preceding questions propounded and answers made or examinations had, not disclosed by the record, such admonitions may have well been justified. Undoubtedly the court in such particular has great latitude in ascertaining the fitness and competency of jurors to sit in a cause. Not anything is made to appear wherein that discretion was abused, at least not to the prejudice of the defendant. That assignment is thus overruled.

The defendant, however, to reverse the judgment more particularly relies on an assignment whereby it is urged that the court erred in admitting testimony of a witness with respect to a distinct and separate offense similar to that charged by the information but in no particular related thereto or connected therewith and being entirely distinct and separate transactions. To review that it is necessary to refer to the evidence more in detail.

The defendant by the information was charged with committing the offense June 2, 1931, on the body of Thomas Edwards, a senior high school boy about fifteen years of age. The boy in substance testified he had known the defendant about four months; that prior to the alleged offense he had been to the defendant's room upstairs in the Venice Hotel in Salt Lake City on several occasions, but no improper relations were then had and that the defendant on such occasions "treated me very nice"; that on the occasion in question he casually met the defendant on the street about 11 o'clock in the forenoon and at the defendant's request went with him to the defendant's room; that they there talked a little while on things in general, just what, the witness did not remember, and then the defendant started "kissing me and loving me and then he slid down my pants" and pushed him on the bed and "inserted his penis into my rectum." When asked if he said or did anything, the witness answered he did not and that he "did not see any reason why I should resist from it." The witness further testified that no resistance or objection was made by him, and so far as anything made to appear to the contrary, he voluntary submitted to the commission of the offense. He further testified that was the first time the defendant "did that to me," but that his "boss" (not the defendant) did that to him on two occasions, the first time about the first of May and the other about the last of May.

Such witness was the only witness called by the state and at the conclusion of his testimony the state rested. Thereupon a motion was made by counsel for the defendant for a directed verdict of acquittal on the ground, among others, of insufficiency of the evidence, in the particular that the witness Edwards was an accomplice and to justify a conviction on his testimony required corroboration. Because of the youth of the boy on whom the offense was committed, the state expressed doubt as to the necessity of corroboration as would be required in case the person upon whom the offense was committed had been an adult. After further discussion of the matter a recess was taken. When the court reconvened the state asked to reopen the case and introduce further testimony, the district attorney stating that during the recess he learned further evidence could be had on behalf of the state and that a witness was then on hand whose testimony could be taken without delay. Over the objection of counsel for the defendant, the case was reopened and the state permitted to give further evidence.

A point is made as to the ruling reopening the case. That is without merit. It was within the discretion of the court to permit the case to be reopened. No abuse of discretion is shown in doing so.

The other witness, also a boy between fifteen and sixteen years of age, was thereupon called by the state. After giving his name, residence, his schooling in the high school, etc., he was then asked concerning his acquaintance with the defendant. He testified that he knew the defendant for a few months, around the month of June, 1931; did not remember the exact date. He further was asked and he answered that he knew where the defendant lived. He then was asked, "Q. Did you ever go to his home?" That was objected to by counsel for defendant, that he did not see the materiality of it unless the state was endeavoring to prove some other offense, which he claimed was incompetent and immaterial. The court observed that if such was the purpose, the testimony was inadmissible. Thereupon the district attorney stated, "That is not the purpose." Counsel for the defendant: "What is the purpose then?" The district attorney: "If you will sit down and be patient you will hear." The objection was overruled. The examination of the witness thus proceeded:

"Q. Did you ever go to his home? A. Yes sir, I have.

"Q. Did you ever go there in the month of June? A. Yes sir.

"Q. How many times? A. About twice, in the month of June.

"Q. What times did you go there, what were the two times? A. I don't know the exact date, I believe it happened on a Sunday.

"Q. You went there one Sunday in June? A. Yes sir.

"Q. Did you go there with the defendant? A. Yes sir.

"Q. Did you have a conversation with the defendant?"

All that was objected to by counsel for the defendant and the objections overruled. After the witness again testified as to the place where the defendant lived and that he went with the defendant to his room on the 15th or 16th of June, he again was asked, "Q. Now you may state what...