State v. Hilberg

Decision Date03 May 1900
CourtUtah Supreme Court

Appeal from the Third District Court, Salt Lake county; HON. A. G NORRELL, Judge.

Appellant was convicted under section 4221 R. S. 1898, which provides "any person who shall carnally know any female over the age of 13 years and under the age of 18 years, shall be guilty of felony." From the judgment, and sentence of conviction, defendant appeals.

Reversed and remanded.

Daniel Harrington, Esq., and Alviras E. Snow Esq., for appellant.

"Where a specific offense is charged, the indictment cannot be sustained by proof of the second offense, even on the same day. This results from the general principle, that offenses collateral to the one charged cannot be received, and that the issues should be single. Wharton's Criminal Evidence (9th ed. section 104, and cases cited.) Commonwealth v Dean, 109 Mass. 349; Baker v. People, 105 Ill. 452.

The defendant's plea of not guilty in this case, put in issue every ingredient of evidence that the State must prove; surely then the jury should have been permitted to know whether this girl's character for chastity was good or bad, as this would clearly affect her credibility, and would have given the defendant the benefit of the doubt, if any doubt appeared as to the paternity of the child, and as to the author of the girl's original troubles. On this question we cite the following authorities: U. S. v. Briedmeyer, 6 Utah 143; 3d Greenleaf on Evidence, (14 ed.) p. 30, note (b); 1 Thompson on Trial, Section 525.

The third class of error in this case was in the refusal of the court in not instructing the jury, as requested by defendant, that the prosecutrix should be corroborated by other affirmative evidence. Rice on Criminal Evidence, 3 Vol. p. 530. Section 522, and cases cited; Ib. p. 831; Wharton on Criminal Evidence, Section 273.

Hon. A. C. Bishop, Attorney General, for the State.

"The first assignment of error to be considered, is based upon the admission of testimony offered on behalf of the State, tending to show other and distinct offenses committed by appellant with the prosecutrix, from that laid in the information.

For a full discussion of this subject, see Underhill on Criminal Evidence, Chap. 8, Secs. 87 to 92 inclusive, and authorities therein cited. In Callison v. State, 39 S.W. 300 (Texas Crim. Ct. of App.); Hamilton v. State, 37 S.W. 431 (Texas Crim. Ct. of App.); Commonwealth v. Bell, 31 A. 123 (Sup. Ct. Penn. Feb., 1895.)

See also 2 Greenleaf on Ev. (2d ed.) Sec. 47; 1 Am. & Eng. Ency. Law, p. 214; 10 Am. & Eng. Ency. Law, p. 344.

To set at rest any doubt as to what the rule in this class of cases is, as announced by the highest courts of several of the states, we herewith submit the following authorities: Cross v. State, 78 Ala. 430; Brivaldo v. State, 21 Fla. 789; State v. Marvin, 35 N.H. 22; Commonwealth v. Nichols, 114 Mass. 285; State v. Way, 5 Neb. 283; Burnett v. State, (Tex.) 22 S.W. 47; People v. Patterson, 102 Cal. 239; Proper v. State, 85 Wisc. 615; State v. Markins, 95 Ind. 464; Lefforge v. State, 129 Ind. 551; People v. Jenness, 5 Mich. 1305; People v. Davis, 52 Mich. 569; Underhill on Crim. Evi. Sec. 381.

The second assignment goes to the refusal of the court to admit testimony offered by the defendant tending to show general reputation of prosecutrix for unchastity.

This question has been presented to this court during the present term, in the case of State v. Williamson, and we deem it sufficient in reply to this assignment, to refer to the authorities therein cited: People v. Johnson, 106 Cal. 298 (39 P. 622); People v. Glover, 71 Mich. 303; State v. Duffy, 128 Mo. 549.

See also the following additional authorities: State v. Eberline, (Kan.) 27 p. 839; 3 Am. & Eng. Ency. Law, 117, and cases cited.

And also the following cases, which distinguish the rule regarding the admissibility of this class of testimony in cases of this kind from cases in which rape has been charged. People v. Abbott, 19 Wend. 192; O'Bemis v. State, 27 N. J. Law, 279; Lawson v. State, 17 Tex. Crim. Ct. App. 302.

Appellant's third and fourth classifications of errors, based upon the refusal of the court to instruct the jury that the prosecutrix should be corroborated, and also that her failure to make immediate complaint or outcry within a reasonable time, had a tendency to discredit her testimony, involve the same general principles and may be considered together.

These questions were also considered in the brief filed on behalf of the State at the present term in the case of State v. Williamson, supra. Bouvier's Law, Dict. (Ned. ed.) Vol. I, p. 21; House v. State, 16 Criminal Ct. App. 25; People v. Bolanger, 71 Cal. 19; Clapp v. State, 94 Tenn. 186; State v. Roberts, 15 Or. 197; State v. Light, 17 Or. 306; Wharton Crim. Ev. (9th ed.), Sec. 440.

MINER, J. BASKIN, J., concurs. BARTCH, C. J., dissenting.



The defendant was charged with having had unlawful sexual intercourse with one Anna Ward, a female over the age of 13 and under the age of 18 years, at Salt Lake City, on the 15th day of February, 1898. Upon the trial the prosecutrix was permitted, under objection, so testify to the first act of sexual intercourse as having occurred in April, 1897, about 11 months before the act charged in the information, and subsequently, under objection, she was permitted to testify to five several and distinct acts of sexual intercourse occurring thereafter during the years 1897 and 1898. The last act occurred in April, 1898, two months after the act charged in the information. The defendant moved to strike out the testimony showing the several acts charged in the information, but the motion was denied.

Sec. 4221, Rev. Stat., 1898, under which the information in this case was filed, provides, that, "Any person who shall carnally or unlawfully know any female over the age of 13 years and under the age of 18 years shall be deemed guilty of a felony."

Under Secs. 4730 and 4732, Rev. Stat. 1898, the information must be direct and certain as regards the offense charged, and as to the statement of the acts constituting the offense.

The information in this case contained but one count alleging the commission of the act on a day specified. The trial court permitted the prosecution to introduce six distinct acts or crimes to be shown in evidence before the jury as having occurred in 1897 and 1898, during a period of 14 months, without requiring any election to be made, and allowed the case to go to the jury upon all the several acts of sexual intercourse shown, when only one act was or could be charged against the defendant. Such a course was calculated to confound, distract and confuse the defendant in his defense. He was expected to meet one charge at a specified time, but was required to defend against and meet six different acts occurring during a period of 14 months, upon one of which the jury was asked to convict. Whether the jury united in a verdict upon each act, or some on one and others on another of the acts proved is problematical. The course pursued subjected the defendant to the risk of conviction upon six charges, occurring at different times and places, against which he could not be expected to be prepared to defend, and yet a conviction or acquittal upon one would be no bar to a future prosecution on any except the first act shown.

No jury should be set to fishing or hunting for a charge which they are called upon to try. Such a course deprived the defendant of a fair trial, and compelled him, without warning, to defend against acts of which he had no notice. Manifestly, he could not be prepared to meet such confusing charges not contained in the information.

The general rule in criminal cases subject to exceptions, is well settled that where one specific offense is charged, the commission of other offenses cannot be proven for the purpose of showing that the defendant would have been more likely to have committed the offense for which he was on trial, nor as corroborating the testimony relating thereto; but where the offense consists of illicit intercourse between the sexes, such as is charged here, or in case of incest, adultery or seduction, courts have relaxed the rule and hold that previous acts of improper familiarity between the parties, occurring prior to the alleged offense, were admissible as explaining the acts, and as having a tendency to render it more probable that the act charged in the information was committed, though such acts would be inadmissible as independent testimony. Lawson v. State, 20 Ala. 65; State v. Wallace, 9 N.H. 515; 2 Starkie on Evidence, 440; Commonwealth v. Merriam, 14 Pick. 518; Wharton's Crim. Ev., Sec. 104; People v. Jenness, 5 Mich. 305; People v. Clark, 33 Mich. 111; Underhill on Crim. Ev., Secs. 92 and 87; 2 Greenleaf on Ev. (15 ed.) Sec. 47; State v. Markins, 95 Ind. 464.

Having determined that previous acts of intercourse are admissible, we are next called upon to determine which of the six acts constituted an offense upon which a conviction could be had.

The charge in the information was for a single act committed on the 15th day of February, 1898. The time stated was immaterial, and under well settled rules in criminal cases the prosecution, before evidence was introduced, could have selected any one of the criminal acts in proof, which occurred within the statute of limitations and the jurisdiction of the court, as the offense for which it would ask a conviction. The defendant could be convicted of but one criminal offense. Only one offense was charged, but six different offenses were proven. Any one of the acts selected by the prosecution, before the introduction...

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