State v. Nelson

Citation39 Wash. 221,81 P. 721
PartiesSTATE v. NELSON.
Decision Date18 July 1905
CourtUnited States State Supreme Court of Washington

Appeal from Superior Court, King County; Geo. C. Hatch, Judge.

P. H Nelson was convicted of living in a state of adultery, and appeals. Affirmed.

James E. Bradford, for appellant. Mackintosh and Hermon W. Craven, for the state.

RUDKIN J.

The defendant was convicted of the crime of living in a state of adultery, and prosecutes an appeal from the judgment and sentence of the court. The information recites that the appellant is accused of the crime of adultery, committed as follows: 'He, the said P. H. Nelson, in the county of King, state of Washington, on the 25th day of May, 1903, and thence continuously until about the 15th day of July, 1903, did willfully, unlawfully, and feloniously live and cohabit in an open and notorious state of adultery with one Paulina Smith, and did than and there have carnal knowledge of the body of the said Paulina Smith, the said Paulina Smith being then and there a female person other than the wife of the said P. H. Nelson, and being then and there the lawful wife of Barney Smith, then and there living in Alaska, and the said P. H. Nelson having then and there a lawful wife living in Seattle, King county, Washington, to wit, one Julia Nelson.' The appellant urges several objections to the sufficiency of this information.

1. It is claimed that the information charges the crime of adultery, and that there is no such crime under the laws of this state. True, the information recites that the appellant is accused of the crime of adultery, but the sufficiency of an information does not depend upon the name by which the prosecuting officer may designate the crime. A wrong designation of the crime charged, or the absence of all designation, will not vitiate an information which is otherwise sufficient. The information before us plainly charges the crime of living in a state of adultery, under section 7231, Ballinger's Ann. Codes & St., and is therefore sufficient.

2. It is claimed that it is uncertain whether the information charges a crime under sections 7230, 7231, or 7238 Ballinger's Ann. Codes & St. Section 7230 defines adultery, but does not define any crime or prescribe any penalty. Section 7231 defines the crime of living in a state of adultery. Section 7238 defines the crime of lewd and vicious association and cohabitation by unmarried persons, or open and gross lewdness or indecent or obscene exposure of his or her person, or of the person of another, by any man or woman, married or unmarried. It seems to us a person of common understanding can readily understand what is intended by this information, and what crime is charged. If so, the requirements of the law are satisfied.

3. It is claimed that Paulina Smith should have been joined as a defendant. This was unnecessary. Bishop Statutory Crimes (3d Ed.) § 670; Wharton, Criminal Law (10th Ed.) § 1730; 1 Ency. Pl. & Pr. p. 308; State v. Dingee, 17 Iowa, 232.

4. It is urged that the information is uncertain as to time. Where an information charges a continuing offense, such as living in a state of adultery, it is proper to allege the commission of the crime between certain dates, as was done in this case. State v. Way, 5 Neb. 283; Commonwealth v. Wood, 4 Gray (Mass.) 11.

5. Again, it is urged that the information is bad for duplicity. This assignment is answered by what has been said as to uncertainty as to the crime charged, as is also the further assignment that the court should have required the state to elect between the different crimes charged. As we view the information, it charges but one crime, in one form only.

6. It is claimed that the appellant was not furnished with a copy of the information. The order of arraignment recites that a certified copy of the information was delivered to the appellant in open court, and this record cannot be contradicted by an ex parte affidavit.

7. It is assigned as error that the court admitted testimony relating to the conduct of the appellant and his alleged paramour three months prior to the date alleged in the information. In this class of cases such testimony is always competent. Underhill, Criminal Evidence, p. 444; State v. Wood, 33 Wash. 290, 74 P. 380.

8. It is assigned as error that the court admitted evidence of the marriage of Paulina Smith, and that such evidence was incompetent and immaterial. The competency of this testimony we will consider hereafter. If immaterial, it is not prejudicial. Furthermore, the state had the right to prove all the surrounding circumstances, including the fact that Paulina Smith was married, and that her husband was absent in Alaska.

9. It is assigned as error that the state was permitted to cross-examine its own witnesses, that the state's witnesses were allowed to repeat their testimony, and that the court admitted evidence of conversations held in the absence of the appellant. The record furnishes no basis for these assignments.

10. It is assigned as error that the court admitted evidence tending to show that Paulina Smith gave birth to a child early in the year 1904. It appears that the husband of Paulina Smith was continually absent in Alaska from the month of May, 1902, until the month of September, 1903. Notwithstanding the absence of her husband, and the good requtation for virtue and chastity which she established at the trial, the fact seems to remain that she gave birth to a child more than 20 months after she had seen or cohabited with her husband. The state could not prove its entire case at once. The fact that Paulina Smith committed adultery with some person was a circumstance the state had a right to prove. If the appellant was not connected therewith, he was not prejudiced thereby. If he was connected therewith, it established adultery on his part, at least, and this was an important step toward proving the ultimate fact of living in a state of adultery. State v. Wood, supra; State v. Fetterly, 33 Wash. 599, 74 P. 810.

11. It is next assigned as error that there was no competent proof of a marriage between the appellant and Julia Nelson, his alleged wife. The testimony offered tended to show that the appellant and said Julia Nelson were married by a minister of the gospel in the territory of Dakota in the year 1883; that, in the presence of the minister and of witnesses, they promised to take each other as husband and wife; and that the minister then declared them to be such. The testimony further shows that they lived together continually thereafter as husband and wife, and held themselves out as such. Under all the authorities, this was competent proof of marriage. Section 7232, Ballinger's Ann. Codes & St., cited by appellant, provides for proof of marriage by a recorded certificate of the marriage, or a certified copy thereof; but this method is cumulative, and does not exclude other methods of proof. 19 Am. & Eng. Ency. of Law (2d Ed.) p. 1197; Wharton, Criminal Evidence, § 173; Underhill, Criminal Evidence, p. 445; People v. Stokes, 71 Cal. 263, 12 P. 71; Summerville v. Summerville, 31 Wash. 411, 72 P. 84; In re McLaughlin's Estate, 4 Wash. 570, 30 P. 651, 16 L. R. A. 699; State v. McGilvery, 20 Wash. 240, 55 P. 115. In the last case cited this court says: 'The proof of the performance of a marriage ceremony by an officer authorized to perform it raises a presumption in favor of its legality. People v. Schoonmaker (Mich.) 75 N.W. 439, 72 Am. St. Rep. 560. 'The testimony of a witness present at the marriage is ordinarily admissible and adequate proof, unless the law requires official evidence.' Wharton, Criminal Evidence (9th Ed.) § 173. See, also, Miles v. United States, 103 U.S. 304, 26 L.Ed. 481; Nance v. State, 17 Tex.App. 389; State v. Schaunhurst, 34 Iowa, 547; 3 Rice, Evidence, § 529.'

12. After the commission of the acts of adultery charged in the information, Julia Nelson obtained a divorce from the appellant. The appellant in this court objects to her competency as a witness against him on the ground that there was no competent proof of a divorce. The respondent, on the other hand, contends that she was a competent witness whether divorced or not, as the crime of living in a state of adultery on the part of the husband is a crime against the wife, and therefore by the express terms of the statute she is rendered competent. Whether the...

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  • In re Eagle
    • United States
    • Washington Court of Appeals
    • 18 de julho de 2016
    ...arraigned before the court.” 44 Wash. 615, 618, 87 P. 955 (1906) (citing Ballinger's Ann. Codes & St. § 6884); see also State v. Nelson, 39 Wash. 221, 224, 81 P. 721 (1905) (“The order of arraignment ... was delivered to the appellant in open court.”).¶ 31 This principle is also found in co......
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    ...in force in the territory of Washington at the time of its admission to statehood. Section 392, Code of Washington 1881; see State v. Nelson, 39 Wash. 221, 81 P. 721; state v. Rasmussen, 125 Wash. 176, 215 P. During the present term this Court has resolved conflicting views expressed in its......
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