State v. Kimball

• Decision Date: 10 June 1902
• Citation: 52 A. 430,74 Vt. 223
• Parties: STATE v. KIMBALL.
• Court: Vermont Supreme Court

52 A. 430

74 Vt. 223

STATE

v. KIMBALL.

Supreme Court of Vermont Orange.

June 10, 1902.

Exceptions from Orange county court; Stafford, Judge.

John P. Kimball was convicted of adultery, and he brings exceptions. Affirmed.

Argued before TAFT, C. J., and ROWELL, TYLER, MUNSON, START, and WATSON, JJ.

Davis S. Conant State's Atty.

G. W. Wing and R. M. Harvey, for respondent.

TYLER, J. 1. The respondent's concession of his identity as the man who was married to Lillian E. Stoddard, and from whom she obtained a divorce in October, 1900, eliminates from the case the question of the admissibility of the certified copy of the marriage record.

2. When the state rested, the respondent moved for a verdict. Therefore the question is whether, upon the evidence produced by the state, the court was justified in submitting the case to the jury. It is the general rule in the trial of criminal causes that the respondent should not be convicted unless the corpus delicti is established; that is, until the fact is proved that the crime charged has actually been committed by some person. Therefore in homicide it must be shown that the person whose life is alleged to have been taken is in fact dead by the criminal act of another person; in burglary, that a certain building, such as the statute describes, has been broken into and entered by some one with criminal intent; In assault and battery, that a person has been unlawfully struck; in larceny, that personal property has been feloniously taken and carried away, etc. In certain cases it is not altogether easy to define and apply the Idea of what constitutes the body of the crime. For instance, in perjury there is no other fact to be established than that the respondent swore falsely about the matter alleged, and a case is not conceivable where it would be necessary to prove first as the corpus delicti, that some one had sworn falsely about the matter. In a trial upon an Indictment under what is known as the "Blanket Act," a court would not instruct a jury that they must first find, as the body of the crime, that two persons of opposite sexes had been found in bed together in the circumstances described in the statute. The only question would be whether the persons on trial bad been so found. In adultery must it first be established that a man and a woman who were under legal prohibition had had sexual intercourse with each other, and then the jury find whether or not the respondents were those persons? See State v. Potter, 52 Vt. 33. In that case it was considered that the fact that the alleged particeps criminis had borne three illegitimate children while she was a member of the respondent's family established a corpus delicti on her part and on the part of some man. The present case was not submitted to the jury upon the theory that the body of the crime was established by the fact that the supposed particeps criminis gave birth to an illegitimate child in the respondent's house. There was no evidence tending to show that either child was begotten in this state. The body of the crime consisted in the fact, if proved, that the respondent and Miss Reed had had sexual intercourse with each other, and the births of the children were facts to be considered with the other evidence in the case tending to show the respondent's adulterous disposition toward this woman. In adultery it is not necessary to prove a corpus delicti apart from the act charged. The correct rule is stated in 2 Greenl. Ev. § 40, quoting Lord Stowell in 2 Hagg. Consist. 2, 3, "that it is not necessary to prove the direct fact of adultery; that, if it were, there is not one case in a hundred in which that proof would be attainable. It is very rarely, Indeed, that the parties are surprised in the direct act of adultery. In every case, almost, the fact is Inferred from circumstances that lead to it by a fair inference; and, unless this were the case,—unless this were so held,—no protection whatever could be given to marital rights." Stated in other words, the rule is that such facts and circumstances must be proved as of their own nature and tendency satisfy the jury that the act charged has been committed. 2 Greenl. Ev. § 41; State v. Brink, 68 Vt 659, 35 Atl. 492. In this case the evidence pointed to no particular time or occasion when the act was committed, but it tended to show that the parties were living together in the relation of husband and wife in the summer of 1898. The testimony of Mrs. Dewey was, in substance, that the respondent and Alice Reed called upon her the last of July or first of August, 1898, to employ her to work for them, the respondent introducing Miss Reed as his wife; that she worked for them in the respondent's house in Randolph two weeks, the respondent, Miss Reed, a child then about five months old, and Mrs. Dewey constituting the family; that Mrs. Dewey worked in the kitchen and took some care of the child; that the respondent and Miss Reed occupied the upper and front part of the house. But Mrs. Dewey did not testify that she knew what rooms they occupied, nor that they occupied any room together. She testified that the respondent addressed Miss Reed as his wife; that he frequently held the child in his arms, and called himself its papa, and, in Miss Reed's presence, called her its mamma; that at the end of two weeks the respondent and Miss Reed went to Boston, and were absent three weeks, Mrs. Dewey remaining at home with the child....