State v. Lewellyn

• Decision Date: 19 March 1928
• Docket Number: 4602
• Citation: 266 P. 261,71 Utah 331
• Court: Utah Supreme Court
• Parties: STATE v. LEWELLYN

266 P. 261

71 Utah 331

STATE v. LEWELLYN

No. 4602

Supreme Court of Utah

March 19, 1928

Appeal from District Court, Third District, Salt Lake County; L. B Wight, Judge.

John Lewellyn was prosecuted for adultery. From an order and a judgment discharging the defendant, based on a directed verdict of not guilty, the State appeals.

ORDER AND JUDGMENT REVERSED.

E. A Rogers, Dist. Atty., A. A. Duncan, Asst. Dist. Atty., and A H. Hougaard, all of Salt Lake City for the State.

J. J Whitaker, of Salt Lake City, for respondent.

CHERRY, J. THURMAN, C. J., and HANSEN and GIDEON, JJ., concur. STRAUP, J., dissenting.

OPINION

CHERRY, J.

The defendant was charged with and put on trial for the crime of adultery committed February 17, 1927, with Mrs. S., a married woman. At the conclusion of the evidence the court, upon defendant's motion, directed a verdict of not guilty, which was returned and the defendant discharged. The state appeals and seeks a disapproval and reversal of the judgment upon the ground that the state produced substantial evidence of defendant's guilt and that the court erred in not submitting the case to the jury upon the evidence.

All of the evidence heard was produced by the state. The defendant offered none. The facts proved were in substance as follows: Mr. and Mrs. S., were husband and wife living together at Salt Lake City. They had been married for six years and had one child, a little boy about five years old. At the time in question they were residing in a five-room dwelling house in the residential district. They had attended dances where they met the defendant, and the husband noticed attentions which the defendant paid his wife. He and his wife had prior trouble over another man whom the husband claimed had paid too much attention to his wife at dances. This had been reconciled. The conduct of his wife and the defendant aroused his suspicion, and he employed a detective to watch them. The husband during the daytime was at work down town and absent from his home from morning until evening. He had an automobile which was used and driven by his wife. He commenced to "keep a check" on his automobile and discovered that it was being run from 24 to 40 miles per day. The detective testified that he saw the defendant and Mrs. S. on the street in the city. They got into the automobile together and drove away. On the afternoon of the next day he saw the defendant coming out of the S. house, with Mrs. S., her child and another man, all of whom got in the automobile and drove away. The next day after that, in the afternoon, he again saw the defendant go into the S. house and remain there for about an hour and a half. During this time the blinds on the side windows were drawn and the little boy was playing outside. The defendant and Mrs. S. then came out of the house and with the little boy entered the car and drove away. The detective followed them to the southern part of the city, where the car stopped and Mrs. S. got out of the car and entered a house. The defendant and the little boy waited in the car. In a short time Mrs. S. returned to the car and they drove through the city and to Ft. Douglas, several miles east, where the defendant left the car. Mrs. S. then drove down town, parked the car and went to her husband's office. Four days later, February 17, 1927, at about 1 o'clock p. m., the detective again saw the defendant go into the S. house. He immediately telephoned S. In about 50 minutes thereafter S. with a police officer, in the latter's car, arrived at the house. The front door was locked and the front blinds drawn. S. unlocked the front door. He and the officer entered the house and found the defendant with his coat and vest off in the hall-way between the kitchen and bathroom. * * * There S. and the defendant grappled until separated by the officer. S. said the defendant was trying to hold him back. S. testified that he heard the click of the lock on the inside of the bathroom door. His wife was in the bathroom. He asked her to open the door, and she refused. He was about to break through the door when she opened it. She was clad only in silk pajamas. A vaginal douche was attached to the faucet in the bathtub. Mrs. S. dressed herself and put the pajamas in a drawer in the bedroom. The officer thereupon arrested the defendant. He did not arrest Mrs. S. As the officer was about to drive away with the defendant, Mrs. S. voluntarily said if the defendant was going to jail she would go too. The officer told her to sit in the back seat of the car, but she said she wanted to sit in the front seat with the defendant. She got in the front seat with him and "leaned over and kissed him." The three then drove away to the police station. Thereafter S. and the detective took the pajamas from the drawer where Mrs. S. had placed them, and found fresh and significant stains upon certain parts of them. The next day an examination of the stains by the state chemist disclosed the presence of spermatozoa, the seminal fluid of a male person. Until this occasion Mr. and Mrs. S. had lived and cohabited together as husband and wife, but S. testified that his wife had not worn the pajamas referred to while cohabiting with him at any time during the preceding two years.

The crime of adultery is sufficiently established by proof of circumstances from which the jury may reasonably infer the guilt of the defendant. 2 C. J. 22; State v. Odekirk, 56 Utah 272, 190 P. 777. We think it plain that the evidence in the present case was sufficient, if believed by the jury, to warrant an inference of defendant's guilt, and to support a verdict of guilty.

In such case may the trial court properly direct an acquittal?

In 16 C. J. 935, the conclusions of various courts are condensed in the statement:

"As a general rule the court should direct a verdict of acquittal * * * where there is no competent evidence reasonably tending to sustain the charge; or where the evidence is undisputed and so weak that a conviction would be attributable to passion or prejudice, or where it is so slight and indeterminate that a verdict of guilty would be set aside, as where the evidence consists solely of the uncorroborated testimony of an accomplice, or is insufficient to overcome the presumption of innocence, or to show defendant's guilt beyond a reasonable doubt. But the case should be submitted to the jury and the court should not direct a verdict of acquittal, if there is any evidence to support or reasonably tending to support the charge, as where it is sufficient to overcome prima facie the presumption of innocence, or where the evidence of a material nature is conflicting."

From Pace v. Commonwealth, 170 Ky. 560, 186 S.W. 142, we quote the syllabus on this point as follows:

"It is only in the absence of any evidence tending to establish the guilt of the accused that the trial court will be authorized to grant a peremptory instruction directing his acquittal."

The same principle is decided in State v. Gross, 91 Ohio St. 161, 110 N.E. 466.

An able discussion and determination of the bounds of judicial authority in considering a motion for a directed verdict is contained in Isbell v. U. S., 142 C.C.A. 312, 227 F. 788, in which it is made clear that the court in such case does not consider the weight of evidence or credibility of witnesses but determines the naked legal proposition of law whether there is any substantial evidence of the guilt of the accused. This is undoubtedly the correct rule. See annotation "Directing Acquittal," 17 A.L.R. 910. The function of a court in dealing with an application for a directed verdict must not be confused with that in considering a motion for a new trial upon the grounds of insufficiency of the evidence. The court has a discretion in the latter case which he does not properly have in the former. The reason for the distinction is that the order sought in one case acquits the accused and finally ends the prosecution, while in the other, the order, if granted, does not discharge the accused but merely gives him the advantage and benefit of another trial. The rule is controlled by the same principles in criminal cases as in civil procedure. And in a civil case, Stam v. Ogden P & P. Co., 53 Utah 248, 177 P. 218, this court said:

"It is familiar doctrine in this jurisdiction and perhaps in nearly every other where the jury system prevails, that, if there is any substantial evidence whatever upon which to base a verdict, the court will not withdraw the case from the jury or direct what their verdict should be."

There is no necessary contradiction in denying defendant's motion for a directed verdict and afterwards setting aside a verdict against him upon the grounds of insufficiency of evidence to sustain it. This is laid down in Denny v. Williams, 87 Mass. 1, 5 Allen 1, where the court said that if the evidence is such that the court would set aside any number of verdicts rendered upon it, the verdict should be directed for defendant, but if the evidence is such that though one or two verdicts rendered upon it would be set aside on motion yet a second or third verdict would be suffered to stand, the cause should not be taken from the jury but should be submitted to them under instructions.

Our conclusion is that upon a motion for a directed verdict of acquittal the province of the court is to consider and determine as a matter of law whether or not there is substantial evidence of the guilt of accused sufficient in law to support a conviction, and, if there is to deny the motion and submit the case to the jury. If the court is dissatisfied with the weight and credibility of the evidence, he may afterwards, upon that ground, set aside the verdict and grant a new trial, but such is no grounds...