State v. Hanna
| Decision Date | 06 May 1933 |
| Docket Number | 5387 |
| Citation | 81 Utah 583,21 P.2d 537 |
| Court | Utah Supreme Court |
| Parties | STATE v. HANNA |
Appeal from District Court, Fourth District, Uintah County; A. v Watkins, Judge.
Charles W. Hanna was convicted of carnal knowledge of a female under the age of consent, and he appeals.
REVERSED AND REMANDED, for a new trial.
Ray E Dillman, of Roosevelt, and Dallas H. Young, of Vernal, for appellant.
Joseph Chez, Attorney General, and Zelph S. Calder, Deputy Attorney General, for the State.
Defendant was convicted in the district court of Uintah county of the crime of carnal knowledge of a female under the age of consent. He appeals. He alleges error in the admission of certain evidence over his objection, in the rejection of evidence proffered by him, in the giving of certain instructions to the jury, in the refusal to give certain requested instructions, and in restricting defendant's counsel in his argument to the jury.
It is charged that the offense was committed on or about September 20, 1931, but the district attorney elected to prosecute for an offense claimed to have been committed about the last of August, 1931. It is upon the testimony of the prosecuting witness that the conviction was had. The witness testified that she was 15 years of age July 1, 1932, that she was acquainted with the defendant and had known him as long as she could remember, and for about four years had delivered milk to defendant's home. In the course of his examination of the witness the district attorney stated that he expected to prove that the offense had been committed "somewhere along" the last of August, 1931. The witness then testified that about the last of August or first of September, 1931, when she delivered milk at defendant's home, at about 10 o'clock in the morning, the defendant put her on the bed and had sexual intercourse with her; that she did not see any one else there on that date; that he had prior thereto had intercourse with her but she did not know how many times; that she gave birth to a baby on the 17th of the following May. On cross-examination she said that in the defendant's house there were three rooms; that the kitchen had been partitioned so as to make another bedroom; and that it was in this bedroom that the offense was committed. The testimony as to her age and as to delivering milk at defendant's home was corroborated by her mother.
The defendant testified in his own behalf. He denied that he had ever had sexual intercourse with the prosecuting witness. Evidently for the purpose of laying the foundation for an alibi he testified to his whereabouts from June to September of 1931. He testified that a cousin, Mrs. Logan, died during the month of June leaving a great accumulation of personal effects, and that he was employed by her sister, a Mrs. Love, to take the body to Denver for cremation, to aid in assorting and disposing of Mrs. Logan's effects, and to take Mrs. Love and her car to Missouri, that he started to Denver with the body on June 18th and returned June 22d; that from that date until August 14th, with the exception of four days spent at "U. B. I. C." (Uintah Basin Industrial Convention), he was engaged with Mrs. Love in so assorting her papers and effects, burning what were not to be kept, assisting in selling some things and preparing others for shipment to relatives; and that while so engaged he left home for work between 7 and 8 in the morning. On August 14th he drove Mrs. Love to Watson, Utah, and from there to Grand Junction and other places in Colorado, and returned to Vernal the evening of the 18th. That he then prepared to start with Mrs. Love and her car for Missouri on the 21st, but as his wife was not well the start was deferred. On the 22d a doctor was called to attend his wife, and that on the 24th he started on the trip to Missouri with Mrs. Love. He had been gone a little over two weeks when he returned September 6th or 7th.
Mrs. Hanna, defendant's wife, testified that during August and September of 1931 she suffered from acid diabetes "with a rash all over me, from my head to my feet"; that it affected her heart, and from the middle of August to the 20th of September she was at home in the house all the time except when she went with her husband in the car, and that a doctor was called to attend her August 22d; that from June 16th to August 24th, with the exception of a short time spent at the U. B. I. C., defendant was continuously employed by Mrs. Love; that he left home between 7 and 8 in the morning; that the prosecuting witness came every morning with milk, but defendant was not often home when she came, as she never came until about two hours after he left, sometimes not until nearly noon, and never came at 7 or 8 o'clock except when she went to school. That witness was around the house, knew what was going on in the house, and that she never saw her husband and the prosecuting witness in any form of familiarity. The witness also testified that defendant left home between 7 and 8 o'clock in the morning of August 24, 1931, on the trip to Missouri with Mrs. Love, and that he returned about September 7th. Two other witnesses also testified to defendant's employment by Mrs. Love, and that he left with her for Missouri on the morning of August 24, 1931. They were, however, unable to testify just when he returned.
On rebuttal the prosecuting witness was recalled and testified that in the month of August or the first part of September, 1931, when delivering milk she had found Mrs. Hanna was not at home; that the defendant told her he had taken his wife to "Winward's place or away to her sister's, somewhere"; that she remembered when defendant took Mrs. Love to Missouri and was gone two or three weeks; that it was not August 24th, but that "he left right after the U. B. I. C.," which from the testimony of defendant and his wife, must have been at some earlier date.
Appellant complains that the prosecuting witness was permitted to testify over appellant's objection that she gave birth to a baby on the 17th of May following the alleged act of intercourse, and contends that such evidence is immaterial, and especially that "if things were normal, and there is no evidence to the contrary, then the intercourse causing her pregnancy was probably accomplished prior to the date set in the information." Notwithstanding it is the act of intercourse whch constitutes the offense charged, whether pregnancy results or not, yet it is competent to prove the birth of a child in corroboration of the testimony of the prosecuting witness. State v. Neel, 23 Utah 541, 65 P. 494. If we assume the act of carnal knowledge occurred on the 28th day of August as fixed by the witness on her cross-examination, the child was born 262 days thereafter which is but eight days short of the 270 to 280 days considered as the ordinary period of gestation. This difference is not sufficient to render the evidence inadmissible. There was no error in receiving the evidence.
Mrs. Hanna, a witness for the appellant, was asked on her direct examination whether it would have been possible for the defendant and the prosecuting witness to have had sexual intercourse within the house between August 24 and September 30, 1931, without her knowledge thereof. An objection thereto made by the prosecution was sustained. This ruling appellant assigns as error. He has, however, not favored us with any discussion or reason therefor, nor has he cited any authority wherein the question raised by such assignment is discussed. Under an unbroken rule in such cases, appellant must be deemed to have waived and abandoned such question.
The principal complaint of the appellant is made in respect to the extent of time within which the jury were by the court's instructions permitted to find that the carnal act, if any, may have been committed. The court refused a requested instruction in which the appellant sought to have the jury instructed that in order to find the defendant guilty the jury must find that the carnal act, if any, was committed between August 24th and September 1st, but, the court told the jury that it must find beyond a reasonable doubt that the offense, if any, was committed between August 24th and September 20th. The district attorney had elected to prosecute for an offense committed "about the last of August," and the prosecuting witness testified that the act occurred "between August 24 and September 20" and on cross-examination she specifically fixed the time as "about four days" after the 24th of August. In view of such record it seems to us that the court might properly have restricted the jury in their deliberations to the period of time as requested, and they should not have been left at liberty to speculate whether such an act might have taken place between the time thus testified to and the 20th of September, but inasmuch as there was no evidence of any act of sexual intercourse between defendant and the prosecuting witness after the 24th of August other than the one for which he was placed on trial and the prosecuting witness testified that such act was the last, we cannot say that the defendant was prejudiced by the instruction given.
On the subject of an alibi, appellant requested the court to charge:
"You are instructed that if you find that the defendant was absent from Uintah County, State of Utah from August 24, 1931, until about September 6, 1931, that it would have been physically impossible for him to have committed the offense charged in the information."
This request was refused, and the court, after defining an alibi, instructed the jury:
"And you are instructed in this...
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