State v. Hansen

• Decision Date: 23 February 1912
• Docket Number: 2270
• Court: Utah Supreme Court
• Parties: STATE v. HANSEN

122 P. 375

40 Utah 418

STATE v. HANSEN

No. 2270

Supreme Court of Utah

February 23, 1912

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

Paul Hansen was convicted of adultery and he appeals.

REVERSED WITH DIRECTIONS TO GRANT NEW TRIAL.

Geo. Q Rich for appellant.

A. R Barnes, Attorney-General, and E. V. Higgins and Geo. C. Buckle, Assistant Attorneys-General, for the State.

McCARTY, J. FRICK, C. J., and STRAUP, J., concur.

OPINION

McCARTY, J.

STATEMENT OF FACTS.

It is charged in the information that the defendant, a married man, on the 21st day of May, 1910, at Cache County, Utah, committed the crime of adultery by then and there having carnal knowledge of the body of a certain unmarried woman therein named, hereinafter referred to as the prosecutrix. A trial was had which resulted in a verdict of guilty, and the defendant was thereafter sentenced to serve a term of two years in the state prison. To reverse the judgment the defendant appeals. The evidence relied on by the state to sustain the judgment consists mainly of the evidence of the prosecutrix, who was an accomplice, and certain admissions claimed to have been made by the defendant to the officers who had him in custody after he was arrested for the crime charged. The prosecutrix testified that she had "been out with the defendant three times only"; that the first time she met him was at "an Auditorium dance along the fore part of May," at Logan City, Utah; that she met him again at the same place about May 21, 1910, and danced with him two or three times; that, "after the dance we took my cousin home . . . We all three got in his buggy, and we first took my cousin home, and then he took me to Providence, and stopped his horse over there, . . . and had sexual intercourse with me." She also testified that the next and only time the defendant again had carnal knowledge of her body was in June, 1910, near her home in the fifth ward of Logan City. Regarding the particular circumstances under which she claims the defendant had illicit intercourse with her at Providence on the occasion mentioned, she testified in part as follows: "Q. What did he do going over? . . . I will ask you whether or not he used both hands all the time in driving? A. No, sir. . . Q. What did he do? I will ask you whether or not he put his arm around you, one of his arms? A. Yes, sir." The record continues: "(Objected to by the defendant as leading.) The Court: It was leading, but the witness seems to hesitate a long time to answer questions that are not leading. You may proceed." The witness continued: "Q. You said that he put his arm around you? A. Yes, sir. Q. What else did he do? . . . I will ask you whether or not he kissed you? A. Yes, sir." This was objected to as leading, and the court remarked: "It is leading, but it has been answered. Q. What else, if anything, did he do? The Court (addressing the witness): You are asked . . . what else, if anything, the defendant did? The witness: Nothing. The District Attorney: He put his arm around you and kissed you, however? The witness: Yes, sir. . . Q. Now I will ask you to state whether or not after you stopped there he pushed you over? A. Yes, sir. Q. How did he push you over? A. With his hands. Q. And pushed you over where? A. On the seat . . . Q. I will ask you to state whether or not he raised up your clothes? A. Yes, sir. Q. I will ask you whether or not he then unbuttoned your pants? A. Yes, sir. Q. I will ask whether or not he then inserted his private parts into your private parts? A. Yes, sir. Q. And had intercourse with you? A. Yes, sir . . . Q. I will ask you to state whether or not you have ever previous to that time had sexual intercourse with any person? A. Yes, sir. Q. I will ask you whether you had been with any man before that? A. No, sir. Q. I will ask whether you had been with any man before that or boy? A. Yes, sir. Q. What is it? A. Yes, sir. Q. You had been with some one before that had you? A. Yes, sir. Q. Now who had you been with before the 21st? A. Well, I don't remember. Q. Have you had sexual intercourse with any man? A. No, sir. Q. But you had been out with some boys. That is what you mean? A. Yes, sir. Q. But the defendant was the first to have sexual intercourse with you? A. Yes, sir." She also testified: That she again met the defendant in June. That he "drove to Schwartz' place where I was working at that time. We got out of the buggy, . . . went inside of the lot, and sat down on the lawn. . . He pushed me over, . . . and had sexual intercourse with me." That she had been out with the defendant only three times.

On cross-examination she was asked concerning her testimony given in the case before the committing magistrate and testified as follows: "Q. Now you stated . . . that the defendant was the first man that you had had anything to do with so far as having sexual intercourse with him was concerned. You made a different statement from that in the lower court, did you not? A. Yes, sir. Q. Who did you charge in the lower court as being the first man? A. Andrew Nelson. Q. You stated in the lower court that Andrew Nelson was the first man that had sexual intercourse with you? A. Yes, sir. Q. And you had known him about a year? A. Yes, sir . . . Q. You also testified in the lower court that you had been offered some inducement to testify in the case did you not? A. Yes, sir. Q. That the officers of the juvenile court had offered you some inducement to testify against these defendants. You remember testifying to that in the lower court? A. Yes, sir. Q. That they would not send you to the reform school--that was the inducement held out to you? A. Yes, sir. Q. Which particular officer was it that told you that, Mr. King, or Mr. Pederson, or Mr. Hansen, which one? A. I don't remember . . . Q. You were a ward of the juvenile court? You were at that time? A. Yes, sir. Q. And you are still a ward of the juvenile court? A. Yes, sir. Q. You report about how often to the juvenile court? . . . A. Once every two weeks." Some of the officers of the juvenile court were present at the trial, and one of them, a Mr. King, was a witness in the case, but none of them were called to testify on this point, and no attempt was made to refute the testimony of the prosecutrix regarding the inducements held out to her by these officers to testify against the defendant.

Ezra Eames, a police officer of Logan City, testified that soon after the defendant was arrested for the crime charged he saw him in jail, and that "I asked him what he was in for. He says, 'I guess for being out with the girl.' I asked him if it was the Logan girl. He says, 'Yes.' He said he got acquainted with her down at the Auditorium. He says: 'I didn't know what it was for.' He says: 'What would you do?' I says: 'I don't know what you are in for.' He said . . . he was in for having sexual intercourse. . . He told me that he took her home from the dance at the Auditorium. He took her out. I says: 'Did you have sexual intercourse with her?' He says, 'Yes.' . . . He says: 'Who is a good attorney?' 'Well,' I say, 'I guess there is my friend Rich is an attorney.' . . . Well, he asked if I would go over. He asked me twice if I would go over. I found nobody in the office. . . I telephoned to Mr. Rich, and told him there was a little case. That he was wanted."

James Hansen, a police officer of Logan City, testified that defendant, soon after he was arrested, admitted to him that he had had carnal knowledge of the body of the prosecutrix. Regarding the time and place of the adulterous act referred to by defendant in this alleged confession Hansen testified as follows: "Q. Did he say where he had done it? A. Yes. Q. Where did he state? What did he say further? A. Why, I asked him where this transpired. He said here in the fifth ward. Q. Did he say what place in the fifth ward? A. It was somewhere opposite her home, there." The record shows that the prosecutrix resided and had resided in Logan City all her life; that at the time of her alleged illicit relations with the defendant she was living with and working for a certain family in the fifth ward near her home.

The defendant was sworn as a witness, and testified in his own behalf. He denied that he had had carnal knowledge of the body of the prosecutrix. He admitted that he said to Eames that he had had sexual intercourse with her, but claimed that at the time he made the statement he did not understand the meaning of the term "sexual intercourse"; that he understood the words to mean that he had merely associated with the prosecutrix in a social way by being "out with her"; that he did not intend to nor was he aware at the time that he was confessing to the commission of an immoral or illegal act.

Several witnesses who were and for many years had been residents of Providence, defendant's home town, and who had known him practically all his life, testified that his reputation for virtue and morality was good. No attempt was made to dispute the facts testified to by these witnesses. Much evidence was introduced tending to show that the reputation of the prosecutrix for chastity, morality, truth and veracity was bad in the community where she had resided all her life. The state called two witnesses to prove that her reputation for truth and veracity in the neighborhood where she resided was good. One of these was the chief probation officer of the juvenile court, and he testified that he had known the prosecutrix for two years, and, so far as he knew, her reputation for truth and veracity was good. On cross-examination he said: "I took her into the juvenile court. I called in her father . . . I heard her father tell Judge Pederson how the girl had deceived him as to where she stayed out at...