State v. Hammond

• Decision Date: 27 January 1915
• Docket Number: 2644
• Citation: 148 P. 420,46 Utah 249
• Court: Utah Supreme Court
• Parties: STATE v. HAMMOND

148 P. 420

46 Utah 249

STATE v. HAMMOND

No. 2644

Supreme Court of Utah

January 27, 1915

Rehearing Denied May 8, 1915.

Appeal from District Court, First District; Hon. W. W. Maughan Judge.

David Hammond was convicted of being the father of a bastard child and was required to contribute to its support.

He appeals.

AFFIRMED.

Geo. Q. Rich for appellant.

A. R. Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson, Asst. Attys. Gen., for the State.

FRICK J. McCARTY, J., STRAUP, C. J., concurring.

OPINION

FRICK, J.

The appellant was charged with being the father of a bastard child of which the prosecutrix was delivered some time before the trial, was found guilty, and was required to contribute to its education and support. From the judgment entered against him, he appeals. His counsel has argued twenty-eight separate assignments of error in his brief. We shall consider those which we deem possess at least some merit.

It is argued that the bastardly act (Chapter 62, Laws Utah 1911) offends against Article 6, Section 23 of the Constitution of this state, which provides:

"Except general appropriation bills, and bills for the codification and general revision of laws, no bill shall be passed containing more than one subject, which shall be clearly expressed in its title."

The title to the act in question reads:

"An act relating to bastardly and providing for security for the support of illegitimate children."

While this title is perhaps not the most comprehensive that could have been framed, yet it is sufficient, and fairly reflects the object or purpose of the act. This is all that is required by the constitutional provision we have just quoted. Edler v. Edwards, 34 Utah 13, 95 P. 367; Marioneaux v. Cutler, 32 Utah 475, 91 P. 355. Although counsel has suggested a title, yet a mere cursory reading of the one proposed by him shows it to be no better than the one adopted by the Legislature. This assignment cannot prevail.

It is next contended that the court erred in permitting the State to prove two acts of sexual intercourse between the prosecutrix and appellant, one as having occurred on the 3d day of December, and the other ten days previous, to wit, on the 23d day of November preceding. The intercourse which it was alleged, resulted in pregnancy was stated in the complaint as having occurred on the 3d day of December, 1911; hence it is insisted that it was error to permit the prosecutrix to testify to the one occurring on the 23d day of November preceding the 3d day of December after she had testified to the later one. The evidence was proper. Both acts were well within the period of gestation, as is shown by the record, and it is always proper to show any acts of intercourse within that period. Indeed, it has been held that, as tending to establish the probability of the act or acts of intercourse testified to as having occurred within the period of gestation, other acts of familiarity and of intercourse occurring within a reasonable time both before and after the act relied on as producing the pregnancy in question may be shown. In People v. Jamieson, 124 Mich. 164, 82 N.W. 835, the rule is stated thus:

"Acts of intercourse and undue familiarity both before and after the alleged act resulting in conception are admissible as bearing upon the probability of the intercourse at the time stated in the complaint."

To this effect are People v. Schilling, 110 Mich. 412, 68 N.W. 233; People v. Keefer, 103 Mich. 83, 61 N.W. 338; Gemmill v. State, 16 Ind.App. 154, 43 N.E. 909; State v. Smith, 47 Minn. 475, 50 N.W. 605; Baker v. State, 69 Wis. 32, 33 N.W. 52; Thayer v. Davis, 38 Vt. 163; Holcomb v. People, 79 Ill. 409. In the last case cited it is held that the time named in the information is not material, and that any other act or acts of intercourse within the period of gestation may be shown which it is claimed may have caused the conception in question. It follows, as a matter of course, as pointed out by us in State v. Reese, 43 Utah 447, 135 P. 270, that, unless an act of intercourse between the prosecutrix and the accused is shown to have occurred within the period of gestation, all other acts of intercourse, if any, are immaterial and improper as evidence.

Where, however, an act, or several acts, of intercourse, are shown to have occurred between the parties within said period, then other acts of intimacy, and of intercourse, occurring within a reasonable time before the act relied on, may be shown for the purpose stated in the excerpt quoted from the Michigan case, supra. While in Michigan and some other states it is held that acts of intercourse occurring after impregnation takes place, as well as those occurring before, may be shown as secondary evidence, yet we think the better rule and weight of authority is to the effect that the evidence in that regard should be limited to acts of intercourse occurring a reasonable time before conception takes place. What constitutes a reasonable time in such cases is not clearly defined by the authorities. No doubt, in that regard much depends upon the relationship of the parties; that is, whether they are unmarried, are lovers, or are engaged to be married, or have been otherwise intimate. The facts of each case, to some extent at least, will furnish a basis for the admission of such evidence. Again, where the accused admits that acts of intercourse took place between him and the prosecutrix before the period of gestation, but denies any act within that period, notwithstanding the prosecutrix has testified to an act or acts occurring within that period, the courts in such cases seem more liberal in permitting evidence of acts of familiarity and intimacy. As pointed out, however, in State v. Reese, supra, mere isolated acts where the parties are not lovers or are not engaged to be married, when remote, should not be admitted in evidence.

We remark, in passing this subject, that it should not be assumed that the rule of admitting such evidence applies against the prosecutrix as well as against the accused. Such is not the law. As against her, all acts of intercourse with others, if any have occurred, must be limited to the period of gestation. This is so, whether they are sought to be elicited from her on her cross-examination or are attempted to be shown by independent evidence. Holcomb v. People, supra; Sang v. Beers, 20 Neb. 365, 30 N.W. 258; Masters v. Marsh, 19 Neb. 458, 27 N.W. 438. What has been said also disposes of the contention that the court erred in permitting the state to show the conduct of appellant and the prosecutrix with regard to "keeping company" and in keeping up a correspondence, and otherwise.

It is further contended that error was committed in admitting certain evidence which was stricken from the record, and which the jury were instructed to disregard. We think this question is ruled by what is said in Loofbourow v Railway Co., 33 Utah 484, 94 P. 981, and in Hopt v. Utah, 120 U.S. 430, 7 S.Ct. 614, 30 L.Ed. 708. We are convinced that appellant suffered no prejudice by reason of what occurred at the trial, and that his rights under the circumstances were amply protected by striking the evidence objected to, and in instructing the...