State v. Moore

• Decision Date: 13 November 1909
• Docket Number: 2088
• Citation: 36 Utah 521,105 P. 293
• Court: Utah Supreme Court
• Parties: STATE v. MOORE

105 P. 293

36 Utah 521

STATE v. MOORE

No. 2088

Supreme Court of Utah

November 13, 1909

APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.

Elizabeth Moore was convicted of adultery, and she appeals.

AFFIRMED.

J. W N. Whitecotton for appellant.

APPELLANT'S POINTS.

The evidence is insufficient as matter of law to show that the defendant is a married woman, the wife of C. H. Moore. The only evidence upon that subject is the statements attributed to the defendant, and that is not sufficient under the authorities. In the case of Miner v. The People, 58 Ill. 59, the Supreme Court of Illinois said: "Adultery is criminal intercourse between a married person, and one of the opposite sex, whether married or single. It is a criminal offense. To sustain it there must be proof of actual marriage. Reputation and cohabitation and repute are not sufficient. There must be strict proof of the fact." In the case of People v. Humphrey, 7 Johnson 314, the Supreme Court of New York, said: "In prosecutions for bigamy, the mere confession of the party is not sufficient evidence of the first marriage; there must be proof of a marriage in fact." In the case of The People v Lambert, 5 Mich. 349, the Supreme Court of Michigan said: "A defendant cannot be convicted of bigamy where the only evidence of the first marriage is proof of the cohabitation of the parties as man and wife, and their statements that such marriage had taken place." The same doctrine was reiterated in the case of People v. Isham, 109 Mich. 72.

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

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

OPINION

FRICK, J.

Appellant was convicted of the crime of adultery. After the overruling of motions in arrest of judgment and for a new trial, the court entered judgment imposing the statutory penalty for the offense, and the appellant appeals.

The first error assigned relates to the sufficiency of the information. After charging that the appellant was a married woman and the wife of one C. H. Moore, and that she, on a certain date, in the county of Utah, State of Utah, committed the crime of adultery with one Arthur J. Morrow, the information contains a description or statement of how the offense was committed in the following language: "By then and there feloniously permitting the said Arthur J. Morrow to have . . . carnal knowledge of her body," etc. Counsel for appellant now insists that this did not charge her with having committed the offense, but rather charged Morrow with having done so. In other words, it is contended that, by the language quoted above, appellant is not charged with having done anything, but only with permitting something to be done by another. By referring to section 4731, Comp. Laws 1907, it will appear that the information in this case substantially complies with the form there prescribed for stating how an offense was committed. Moreover, the information responds to the requirements of section 4732, and is clearly sufficient. Counsel for appellant contends that the offense was completely charged in the information before the words which we have quoted were added to it. If this were so, then the information would still be sufficient, and the statement quoted by us would be mere surplusage and harmless. (Joyce on Indictments, secs. 421, 422.) We are clearly of the opinion that the information is not vulnerable to the criticisms alleged against it by counsel. This assignment must therefore be overruled.

The next assignment relates to the ruling of the court in admitting in evidence against the appellant certain admissions or statements made by her to the sheriff of Utah County and his wife while appellant was in the custody of the sheriff. Counsel for appellant in his brief sets forth the sheriff's testimony, as follows: "On the morning of the 23d of June, I went into the room with my wife and asked her her name, age, and residence, as we do in those cases for record; and at that time is when I asked her. She said her name was Mrs. Elizabeth Moore. I asked her if she was the wife of C. H. Moore, and she said she was." The sheriff claimed that he obtained the foregoing information from appellant pursuant to subdivision 6, sec. 575, Comp. Laws 1907. In that section the duties of the sheriff are prescribed, and subdivision 6 aforesaid provides that he shall "receive and safely keep all persons duly committed to his custody . . . and keep a record of each, showing the name, age, and place of birth, particularly describing the person, in a book kept for that purpose." It is urged by appellant's counsel that the foregoing statements made by her were in the nature of a confession, and, as the information referred to was required by statute, and appellant was required to disclose the same to the sheriff, that, therefore, the statements were not voluntary, and hence should have been excluded. If the statute required a person to state anything in the nature of a confession or admission of guilt, the question raised by counsel would be a serious one. It will be seen at a glance, however, that the information which the sheriff is required to obtain from a prisoner under the statute in no way relates to any offense that an accused person may be charged with. It certainly cannot seriously be contended that merely giving one's name, age, and place of birth is in the nature of a confession of guilt. But it is contended that the sheriff went farther than this in asking the appellant whether or not "she was the wife of C. H. Moore." Grant this, and still the statement made by appellant that she was the wife of Mr. Moore was not in the nature of a confession of guilt. True it is, that, in order to constitute the offense with which she was charged, it was essential under our statute (section 4210, Comp. Laws 1907) to prove that she was a married woman, and the wife of some man other than the one with whom the act charged was committed. To admit that she was a married woman and the wife of Mr. Moore, however, was not also an admission that she had committed the offense charged. It was, at most, an admission of a fact which was essential to be proved in order to convict her of the offense charged. The admission of such a fact, however, does not come within what are termed confessions or admissions of guilt, as these terms are treated and applied by the courts and law-writers. It has frequently been held that in prosecutions for either adultery or bigamy, admissions or statements made by the accused that he is a married man, are ordinarily not to be treated as confessions of guilt, and that such admissions or statements are admissible against him as evidence of marriage only, and not as confessions of guilt. The distinction between confessions and such admissions or statements is clearly stated, and applied in the following, among other, cases: People v. Strong, 30 Cal. 151, 157; People v. Parton, 49 Cal. 632, 637; Taylor v. State, 37 Neb. 788, 56 N.W. 623. See, also, 3 Ency. of Ev., pp. 322, 323; 12 Cyc. 423. But, in any event, the record affirmatively shows that the statements made by the appellant were purely voluntary. When the sheriff asked her what her name was, she, as...