State v. Hoben

• Decision Date: 15 June 1909
• Docket Number: 1979
• Citation: 36 Utah 186,102 P. 1000
• Court: Utah Supreme Court
• Parties: STATE v. HOBEN

102 P. 1000

36 Utah 186

STATE v. HOBEN

No. 1979

Supreme Court of Utah

June 15, 1909

APPEAL from District Court, Third District; Hon. George G Armstrong, Judge.

Defendant was convicted of felony and appeals.

REVERSED AND REMANDED.

H. J Robinson, J. M. Hamilton, and A. J. Weber for appellant.

A. R Barnes, Attorney-General, for the State.

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

OPINION

STRAUP, C. J.

The defendant was convicted of the crime of having carnal knowledge of a female under the age of eighteen years. In the information charging the offense it is averred that the defendant, "having been duly committed to this court" by a committing magistrate "to answer to this charge, is accused," by the district attorney, of the crime above stated, as follows:

"That the said Martin F. Hoben, on the 1st day of April, 1906, at the County of Salt Lake, in the State of Utah, in and upon one Edna Thomas, a female over the age of thirteen years, and under the age of eighteen years, to wit, of the age of seventeen years, she, the said Edna Thomas, being then and there an unmarried female, unlawfully and feloniously an assault did make, and the said Martin F. Hoben did then and there unlawfully and feloniously have carnal knowledge of and sexual intercourse with the said Edna Thomas."

It is made to appear that at the preliminary examination the prosecutrix and her mother both testified that the prosecutrix was born on the 21st day of November, 1888, and that she was only seventeen years of age when the offense, on the last of March or the 1st of April, 1906, as alleged in the complaint, was committed. The prosecutrix there testified that she became pregnant as a result of such sexual intercourse with the defendant, and that the child was born on the 7th day of January, 1907. No evidence, at the preliminary examination, of any offense was given, except the one committed the last of March or the 1st of April, 1906, when the prosecutrix, as there testified to by her, became pregnant. She there testified that such time was the first occasion when the defendant had sexual intercourse with her. Upon the complaint charging the defendant with having committed the offense at that time, and upon the evidence adduced before the committing magistrate with respect to that offense and transaction, and none other, the defendant was held to the district court. After the information was there filed against him, he took the depositions of certain witnesses in the state of Iowa, where the prosecutrix was born, and where she and her mother had formerly resided. The depositions included the evidence of the official records of births, the testimony of the physician and the nurse who attended the prosecutrix's mother in confinement, the testimony of the prosecutrix's grandmother, and other witnesses. The evidence, as disclosed by the depositions, clearly showed that the prosecutrix was born November 21, 1887, and that when she had sexual intercourse with the defendant, the last of March or the 1st of April, 1906, as testified to by her, she was more than eighteen years of age. One set of depositions was received and published on the day of the trial, but before the trial commenced. There is some dispute in the record as to whether the depositions, after they were received and published, were seen or read by the prosecutrix prior to the giving of her testimony in the district court. The district attorney testified that he did not read nor communicate to her any of the contents of the depositions; that when the direct interrogatories to take the depositions were served upon him he read those to her and the names of the witnesses, and interrogated her concerning the matters inquired about, to enable him to prepare cross-interrogatories. The prosecutrix, however, did not even then make known to the district attorney her correct age. She admitted on the witness stand that she concealed the real fact of her age from him until the morning of the trial, and testified that she then told him her correct age, that she became eighteen years of age on the 21st day of November, 1905, and that she then also informed him for the first time that the defendant first had sexual intercourse with her along about the 1st of November, 1905. No opening statement of the case was made to the jury by the district attorney. After the jury was impaneled and the trial begun, the prosecutrix, the first witness for the state, took the witness stand with the child on her lap. After a few preliminary questions had been asked her concerning her residence and parents, and after testifying that she was a telephone operator at Bingham Canyon, she was asked: "Who is the mother of this child which you hold in your lap?" She answered that she was. She then, in response to questions asked her by the district attorney, testified that the defendant was the father of the child; that she had sexual intercourse with him the last of March or the 1st of April, 1906; and that, as the result of such intercourse, she became pregnant, and that the child was born January 7, 1907. She then also testified that she was born on the 21st day of November, 1887 (not 1888, and as disclosed by the testimony of the witnesses in the depositions), and that she became eighteen years of age on the 21st day of November, 1905, and hence she was more than eighteen years of age when the defendant had sexual intercourse with her on the 1st of April, 1906, and when she became pregnant.

After having identified the offense and transaction in such manner, the district attorney then asked the prosecutrix when she first had sexual intercourse with the defendant. She answered: "Somewhere along the first part of November, 1905." She testified that the intercourse took place at or about a "headhouse" or a shed, on her return with the defendant from a masquerade ball in Bingham Canyon. The district attorney then asked her, and she answered as follows:

"Q. Now, Edna, I want to ask you this question: If you gave any other (age) at any time? I just want you to tell the plain facts about this. If you gave any other age as your right age at any time? A. Why, I didn't at first tell. I was told to do that, and I did give a different age. Q. I want you to tell the jury just what the facts are with relation to any other statement or any other testimony you have given. A. Why, I was instructed to say that I was younger. I don't know if it would be right to give the one who told me. Q. State just what was said, and the circumstances. I want the plain facts. A. Well, the attorney we had (naming him) he wanted me to say that I was younger than I was; that I wasn't eighteen the first time I had intercourse with Hoben; that it would make it stronger to say that I was a year younger. Q. Did you so testify? A. I did; yes. Because I thought he knew; he was brighter than I was; I did as he told me; he told me to do it, and I did. Q. Was that in the preliminary examination in this case? A. Yes, it was. Q. And that statement was true or false? A. It was false. Q. The statement you then made? A. It was false, yes. And what I am telling now is true."

The district attorney then examined her at some length with respect to communications and transactions had with the defendant relating, not to the offense committed about the first part of November, 1905, but to the offense committed on the 1st day of April, 1906, and to transactions had subsequently thereto, and especially relating to her pregnant condition. She also testified, in response to questions asked her by the district attorney, that the defendant wanted her to submit to a surgical operation to produce an abortion; that she went to a doctor to whom the defendant had directed her; that she reported to the defendant that the doctor refused, and advised her to let the child be born and to raise it the best way she could, and never to permit an abortion to be performed; that the defendant only laughed and sneered at her; that at another time when she was far along in pregnancy he urged her to go to a specialist to have an abortion performed; that she declined to do so, and that he in anger, struck her in the face; that she and the defendant had been engaged to be married, and that she begged him and pleaded with him to marry her and protect her name and that of the child, and that the defendant only laughed in her face, treated her with contempt, and rudely pushed her away; that he went with another girl, and did other things to tantalize and annoy her; that after he was arrested he sought her and requested her to sign a paper to the effect that he was not the father of the child, and that, if she would do so and withdraw the charge against him, he would agree to support the child; that she declined to do this, and from thence on the defendant annoyed, maligned, and ill treated her. On cross-examination she testified that when she and her mother went to the committing magistrate to make the complaint, which was after the child was born, the justice explained to her and her mother that, if the prosecutrix was eighteen years of age or over when the sexual intercourse with the defendant was had, the offense constituted fornication, and was punishable only by a jail sentence or a fine, but if she was under eighteen the offense was a felony and punishable by imprisonment in the penitentiary. She further testified that the first complaint filed with the magistrate, and which was signed by her mother, charged the defendant with the crime of fornication; that later a complaint, also signed by her mother, was filed charging the defendant with a felony. The only difference in the complaints was that in the latter it was alleged that the prosecutrix was only seventeen years of age at the time of the...