State v. Lay

• Decision Date: 03 September 1910
• Docket Number: 2117
• Citation: 110 P. 986,38 Utah 143
• Court: Utah Supreme Court
• Parties: STATE v. LAY

110 P. 986

38 Utah 143

STATE v. LAY

No. 2117

Supreme Court of Utah

September 3, 1910

APPEAL from District Court, Sixth District; Hon. John F. Chidester Judge.

Phil R Lay was convicted of adultery, and appeals.

REVERSED, WITH DIRECTIONS FOR NEW TRIAL.

W. F Knox for appellant.

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

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

OPINION

McCARTY, J.

Appellant was convicted of the crime of adultery in the district court of Garfield County. The act was alleged to have been committed in said county on March 15, 1908. A sentence of two and one-half years in the state prison was imposed.

The only evidence tending to incriminate appellant and connect him with the crime charged was that given by the prosecutrix. She testified that from the last of February, 1908, until some time in May of the same year she was employed at the Cameron Hotel, in Panguitch, Garfield County, Utah; that during this time appellant roomed and boarded at the same hotel: that she became "slightly acquainted" with him; "at this time (referring to about March 1, 1908) I had never spoken to Mr. Lay, just waited on him at the table;" that on the evening of March 11th Lay came to her room at the hotel and had sexual intercourse with her, and that on the evening of the 15th of the same month he again came to her room, and that they repeated the act; that as a result of these relations she became pregnant, and on December 14, 1909, gave birth to a child; that she was a married woman, and was married to her husband in Idaho on June 11, 1906; that she left her husband in Idaho and came to Panguitch: that at the time of her illicit relations with appellant she was not and had not been living with her husband for some two years; that about a month after appellant was at her room on the occasions referred to she discovered that she was in "the family way." and so informed appellant about May 15, 1909; that she met him in a drug store at Panguitch, and that they walked from the drug store in the daytime along one of the public streets of the town; that during the walk she informed him of her condition, and that he advised her to "get a quarter's worth of something and take eight drops of it;" that she declined to "take the stuff;" "that (quoting her literally) he said if he could he would get a divorce for his wife and one for me in June and I told him I didn't want a divorce;" that this conversation took place near the home of Thomas Haycock, sheriff of Garfield County.

The Attorney General contends that this testimony given by the prosecutrix, the alleged accomplice of appellant in the crime charged, was corroborated by the testimony of Thomas Haycock, who was called as a witness for the state. Haycock testified that he saw the prosecutrix and appellant pass by his home together on the occasion referred to by the prosecutrix in her testimony; that at the time he arrested appellant he had a conversation with him in regard to what was said by the prosecutrix and the appellant upon that occasion. The testimony of the sheriff touching this is as follows: "I asked him what they went up there for, and he said they went up there to talk it over. . . . I asked Lay if she did not tell him she was in the family way, and he said, 'No;' that she did not tell him that she was, but that she thought she was. I said, 'Well, you promised to marry her if she was didn't you?' He said, 'No: but I told her that, if it was me, I would do the right thing.'" The witness further testified: "I remember in the evening another remark he made. We were talking about the affair, and he said the last time he was in Panguitch that his wife said to him: 'Phil, that smooth tongue of yours will get you in trouble.'" Other testimony was introduced by the state, but it in no way tended to connect appellant with the commission of the crime charged; hence it is unnecessary for us to refer to it.

Appellant requested the court to instruct the jury to return a verdict of not guilty. The refusal of the court to so instruct the jury is assigned as error. Section 4862, Comp. Laws 1907, provides: "A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which in itself, and without the aid of the testimony of an accomplice, tends to connect the defendant with the commission of the offense; and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof." Under this statute, the jury has no legal right to convict a defendant upon the uncorroborated testimony of an accomplice, even though they believe the testimony of the accomplice to be true as to every material fact, and are convinced by it of the guilt of the defendant beyond a reasonable doubt. (People v. Clough, 73 Cal. 348, 15 P. 5; State v. Carr, 28 Ore. 389, 42 P. 215; Underhill, Crim. Ev., p. 93.) It is not essential, however, that the corroborative evidence shall be sufficient of itself to support a verdict of guilty; nor is it essential that the testimony of the accomplice be corroborated on every material point. It is sufficient if the testimony of the accomplice is corroborated as to some material fact, and that the corroborative evidence in and of itself, and "without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense." (State v. Spencer, 15 Utah 149, 49 P. 302.) In 12 Cyc. 456, the rule is well and tersely stated as follows:

"It is necessary, however, that the evidence corroborating an accomplice shall connect or tend to connect defendant with the commission of the crime. Corroborative evidence is insufficient where it merely casts a grave suspicion on the accused. It must not only show the commission of the offense and circumstances thereof, but must also implicate the accused in it. . . . But where the circumstances when proved, taken separately or collectively, are consistent with the innocence of the accused, there is no corroboration, and a verdict of conviction based thereon will be set aside." (Italics ours.) And on page 457 of the same volume it is said: "Evidence which shows no more than that the defendant and the accomplice were seen together shortly before the crime is not such corroboration as the law requires."

We also invite attention to the case of State v. James, 32 Utah 152, 89 P. 460, in which this question was, to some extent, involved.

It is contended on behalf of appellant that the testimony of the accomplice in this case (the prosecutrix) was not corroborated by other evidence as required by the foregoing provisions of the statute. We...