State v. Park

• Decision Date: 23 April 1914
• Docket Number: 2502
• Citation: 140 P. 768,44 Utah 360
• Court: Utah Supreme Court
• Parties: STATE v. PARK

140 P. 768

44 Utah 360

STATE v. PARK

No. 2502

Supreme Court of Utah

April 23, 1914

APPEAL from District Court, Fourth District; Hon. A. B. Morgan Judge.

Albert Park was convicted of adultery and he appeals.

AFFIRMED.

J. W N. Whitecotton and W. E. Rydalch for appellant.

A. R Barnes, Attorney-General, and E. V. Higgins and G. A Iverson, Assistant Attorneys-General, for the State.

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

OPINION

McCARTY, C. J.

The defendant was, on the 29th day of January, 1913, convicted in the district court of Utah County of the crime of adultery alleged to have been committed in said county on the 1st day of September, 1912. It appears from the record that the girl with whom it is alleged the defendant committed the offense charged in the information was, at the time of the alleged offense, nineteen years of age, and also that she was a ward of the Industrial School of this state. The girl, hereafter referred to as the prosecutrix, was called as a witness by the state and testified that she met and became acquainted with defendant at a dance in Springville City some time in August, 1912; that she again met defendant on the 1st day of September, 1912; and that the circumstances leading up to and under which the offense charged was committed were as follows: As the prosecutrix, in company with "a girl friend and two boy friends," were returning home from a dance in Springville at about twelve-thirty a. m., she and her companions stepped into an ice cream parlor, and immediately thereafter defendant, in company with "two girls and two boys," came in. The defendant invited the prosecutrix to join him and his companion in what seems to have been a "joy ride" to Spanish Fork and return. This the prosecutrix consented to do. The party then entered the automobile, which was started towards Spanish Fork; the prosecutrix and defendant occupying the front seat in the car. She further testified, quoting from the record: "When I got into the automobile at Springville, Bert (defendant) was alone in the front seat, and I took a seat beside him. . . . Bert drove the machine. . . . He said: 'We will go to Spanish Fork, and then I will let you out when we come back. We won't be gone long.' . . . He said he would see me home. . . . At Spanish Fork we drove up to one of the drug stores and there got some beer. The beer was put in the machine, and we started back towards Springville. We started up the road . . . and stopped when we first drank. All the parties drank beer and there were six of us; we drank out of the bottles. We came back through Springville, and I asked to get out, and they would not listen to me. From Springville we came right on to Provo. They (referring to the defendant's male companions) took their girls home. The boys came back and got in the car, and we drove around as far as the Lamar Hotel. The boys all got out and went around the hotel and left me in the car. The defendant came back, I should think in about fifteen minutes, and the other boys left. Bert and I went down to the garage and came back to the Lamar Hotel, where we stayed the balance of the night. . . . I carried some of the bottles (referring to the beer) to the Lamar Hotel in a rain coat. I had two bottles in each pocket. We went to our room, where we undressed nearly an hour afterwards. During that hour we were drinking and talking. . . . We both occupied the same bed and had sexual intercourse." She also testified that as they were passing along the corridor of the hotel leading to their room she saw a man (Cal. Hanson) lying on a bed in one of the rooms; that they stopped and talked with Hanson about ten minutes, and then went to their own room, No. 14, Hanson going with them; that Hanson remained and talked with them about twenty minutes and then returned to his own room; that it was after two o'clock a. m. when Hanson returned to his room. Cal. Hanson was called as a witness by the state and testified that on the night in question he occupied room No. 11 in the Lamar Hotel; that at about two o'clock a. m. defendant and the prosecutrix came to his room and talked with him about ten minutes, and from his room (room No. 11) they all went to room No. 14; that he remained in room No. 14 about twenty minutes and then returned to room No. 11, leaving defendant and the prosecutrix together in room No. 14. "Q. Did you see them again after that? A. Not until next morning. Q. Did you see them in the morning? A. Yes, sir. Q. Where were they? A. In the room. Q. Both there? A. Yes, sir. Q. About what time? A. Well, I couldn't say hardly what time it was, quite early, probably seven o'clock. . . . She was dressed, in full costume, (and) Bert (defendant) was dressed, in full costume." Hanson also testified that they all took breakfast together that morning at a nearby restaurant. George T. Judd, who, at the time the offense charged is alleged to have been committed, was sheriff of Utah County, was called as a witness by the state and testified that he had a conversation with defendant about the 3d or 4th day of September, 1912; that he asked defendant "where he was on Saturday night the latter part of August," and that the defendant stated that he went to Springville and then back to Provo; that he also asked defendant where he stayed that night, and he answered that he stayed at home; that he asked defendant if "he knew the whereabouts" of the prosecutrix on that night, and that defendant answered that he did not. Mr. Judd also testified that he had another conversation with defendant a few days thereafter, about the 10th, quoting: "I asked him where he was on the night of the last of August and the 1st of September, and he said he was in the Lamar rooming house. I asked him why he did not so state to me in the former conversation. He said he did not know why. I asked him why he stayed in room No. 14 of the Lamar rooming house, and he said he did not stay there. He said he stayed in room No. 11, with Cal. Hanson that night."

Counsel for the defendant, in their printed brief, contend that there is not sufficient evidence to support a finding that the defendant was a married man at the time of the alleged commission of the crime charged. The prosecutrix...