State v. Poulos

• Decision Date: 27 December 1922
• Parties: STATE, Respondent, v. GUST POULOS, Whose True Name is GUST LEMPEROPOLOUS, and LEONA BAKER, Appellants
• Court: Idaho Supreme Court

212 P. 120

36 Idaho 453

STATE, Respondent, v. GUST POULOS, Whose True Name is GUST LEMPEROPOLOUS, and LEONA BAKER, Appellants

Supreme Court of Idaho

December 27, 1922

CRIMINAL LAW-CONVICTION OF ADULTERY-DEFECTIVE SPECIFICATION OF ERROR-EVIDENCE.

1. A general specification of error to the effect that the evidence is insufficient to sustain the verdict, without reciting the particulars in which the alleged insufficiency consists, does not comply with the requirement of C. S., sec 9068, and under such general specification of error the court will not review the evidence in the record to determine whether or not it is sufficient to sustain the verdict.

2. Held, that there is sufficient competent evidence in the record to establish the fact of marriage between the defendant and Stella Brennaman at the time of the commission of the offense with which he was charged.

3. Held, that the trial court committed no error prejudicial to the defendant in the admission of evidence.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge.

Conviction for crime of adultery. Affirmed.

Affirmed. Petition for rehearing denied.

Peterson & Coffin, for Appellant.

Testimony that it was generally reputed that the defendant was a married man is not sufficient to sustain a verdict of guilty in an adultery prosecution. (Craft v. State, 13 Ga.App. 79, 78 S.E. 776; State v. Coffee, 39 Mo.App 56; Miner v. People, 58 Ill. 59; Wood v. State, 62 Ga. 406.)

An extrajudicial confession by the defendant of his marriage is not alone sufficient proof thereof to sustain a conviction. (State v. Downing, 23 Idaho 540, 130 P. 461; Craft v. State, supra; People v. Isham, 109 Mich. 72, 67 N.W. 819; State v. Timmens, 4 Minn. 325 (Gil. 241).

Evidence of opportunity alone to commit the offense of adultery is not sufficient to sustain a conviction. (State v. Thompson, 133 Iowa 741, 111 N.W. 319.)

Roy L. Black, Attorney General, and James L. Boone, Assistant, for Respondent.

The brief of appellant shall contain a distinct enumeration of the several errors relied on. (Rule 42, Rules Supreme Court; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 Idaho 403, 201 P. 494.)

Marriage may be established by the introduction of the original marriage license. (C. S., sec. 4608; 2 C. J., sec. 59, p. 26, note 36.)

Marriage may be established by reputation (2 C. J., sec. 58, p. 26, note 35; Plummer v. State, 27 Ga.App. 185, 108 S.E. 128); and by the confession of the defendant where it is corroborated by other testimony. (2 C. J., sec. 61, p. 27, note 47.)

BUDGE, J. McCarthy, Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

Appellant was convicted of adultery committed with one Leona Baker and sentenced to serve a term in the state penitentiary of not less than one nor more than three years. From the judgment of conviction this appeal is taken.

The first specification of error assigned is that the evidence is insufficient to sustain the verdict. C. S., sec. 9068, provides: " . . . . Upon an appeal from a final judgment of conviction if a reporter's transcript of the evidence appears in the record, the ground that the verdict is contrary to the evidence may be considered and determined to the same extent as on an appeal from an order denying a new trial, Providing a specification of the particulars in which the evidence is insufficient to sustain the verdict is made in appellant's brief filed with the supreme court."

The foregoing statute has been construed by this state in the following decisions: State v. Snook, 34 Idaho 403, 201 P. 494; State v. Maguire, 31 Idaho 24, 169 P. 175. In the latter case the court said: "The only attempted specification of the insufficiency of the evidence to sustain the verdict in appellant's brief is as follows: 'and for the further grounds that the evidence is insufficient to warrant the jury in finding the defendant guilty.' This cannot be called a specification of the particulars in which the evidence is insufficient, and therefore this court cannot review the evidence contained in the record to determine whether or not it is sufficient to sustain the verdict." Appellant has failed to specify in what particular or particulars the evidence is insufficient to sustain the verdict, and under the authority of the cases cited we do not deem it necessary to examine the record to ascertain such insufficiency.

The second specification of error is that the court erred in admitting the marriage license, Exhibit "A," over objection of appellant. In this regard an examination of the record discloses the fact that the court, in ruling upon the objection made as to the admission of the exhibit, said "It may be admitted with the understanding that it is incumbent upon the state to connect the defendant on trial as the same person mentioned therein, and if it is done the exhibit will be stricken on...