State v. Richardson

• Citation: 56 Idaho 150,50 P.2d 1012
• Decision Date: 02 November 1935
• Docket Number: 6254
• Parties: STATE, Respondent, v. H. H. RICHARDSON and MAY BIRD, Appellants
• Court: United States State Supreme Court of Idaho

50 P.2d 1012

56 Idaho 150

STATE, Respondent, v. H. H. RICHARDSON and MAY BIRD, Appellants

No. 6254

Supreme Court of Idaho

November 2, 1935

ADULTERY-EVIDENCE SUFFICIENCY OF-INSTRUCTION TO ACQUIT, REFUSAL OF-REVIEW-INSTRUCTIONS-APPEAL-ASSIGNMENTS OF ERROR, WHEN NOT CONSIDERED.

1. Circumstantial evidence will support conviction for adultery if establishing that parties were together in equivocal circumstances and had opportunity to commit crime and adulterous inclination, and if circumstances are inconsistent with any reasonable hypothesis except that of guilt.

2. Circumstantial evidence held sufficient to sustain conviction for adultery.

3. Assignment of error based on court's refusal to advise jury to acquit held not reviewable.

4. In adultery prosecution, refusing imperfect instruction covered by another instruction, and giving latter instruction advising jury to consider evidence showing good character for morality, held nonprejudicial.

5. Refusing instruction covered by instruction given held not error.

6. Assignments of error need not be considered where no authorities were cited in support and assignments were not argued in brief.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Conviction of crime of adultery. Affirmed.

Affirmed.

Earl E Garrity, for Appellants.

In order to sustain a conviction based solely on circumstantial evidence the circumstances must be consistent with the guilt of defendant and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt. (State v. Sims, 35 Idaho 505 206 P. 1045; State v. Shelton, 46 Idaho 423, 267 P. 950; State v. Chaney, 110 Iowa 199, 81 N.W. 454.)

Mere suspicion raised by the circumstances proved will not sustain a conviction, especially when such suspicion is removed by uncontradicted evidence. (17 C. J. 267, sec. 3595.)

The evidence must show more than a vague suspicion that the defendant may be guilty. (State v. Postal Tel. & Cable Co., 53 Mont. 104, 161 P. 953; 16 C. J. 763, secs. 1568-1570; State v. Carlson, 53 Idaho 139, 22 P.2d 143.)

State v. Carlson, supra: "If the evidence can be reconciled either with the theory of innocence or of guilt, the law requires that the theory of innocence be adopted." (State v. Marcoe, 33 Idaho 284, 193 P. 80; State v. Burke, 11 Idaho 420, 83 P. 228; State v. Sorensen, 37 Idaho 517, 216 P. 727.)

The inclination must extend to conduct reasonably suggesting a libidinous tendency of each of the parties toward each other. (2 C. J. 23, notes 82-84.)

Bert H. Miller, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

"It is enough to sustain a conviction of adultery that the adulterous disposition be shown to exist between the parties, and that they were together in equivocal circumstances, such as would lead the guarded discretion of a reasonable man to the conclusion of guilt beyond a reasonable doubt." (State v. Shelton, 46 Idaho 423, 267 P. 950; Monteith v. State, 114 Wis. 165, 89 N.W. 828; State v. Sims, 35 Idaho 505, 206 P. 1045.)

In prosecutions for adultery positive evidence of direct fact of intercourse is not required, but may be inferred from circumstances that lead to it by fair inference as a necessary conclusion. (State v. Shelton, 46 Idaho 423, 267 P. 950; Monteith v. State, 114 Wis. 165, 89 N.W. 828; State v. Sims, 35 Idaho 505, 206 P. 1045.)

Refusal to advise the jury to acquit is not reviewable. (State v. Cacavas, 55 Idaho 538, 44 P.2d 1110; State v. McClurg, 50 Idaho 762, 797, 300 P. 898.)

Where an assignment of error is not supported by citation of authority or argued in the brief it is to be deemed abandoned. (Glover v. People, 63 Colo. 392, 167 P. 960; People v. Smith, 96 Cal.App. 373, 274 P. 451; People v. Hayes, 72 Cal.App. 292, 237 P. 390.)

BUDGE, J. Givens, C. J., Morgan, J., concur, Holden and Ailshie, JJ., concur in the conclusion.

OPINION

BUDGE, J.

Appellants were informed against, tried and convicted of the crime of adultery, and appeal.

Since the first two assignments relate to the sufficiency of the evidence it appears proper to recite in some detail the evidence adduced on behalf of the state. The wife of appellant Richardson had been in California for some three months and upon returning went to the house of a neighbor from which point she kept watch of her own house just across the alley. Appellant Richardson came to the house about 6 o'clock in the evening and then went away in the car and returned at about half-past 7 with appellant Mrs. Bird and both entered the house and there remained. About half-past 11 Mrs. Richardson called the police and Officers Brown and Tritt were met by her at 11:35 o'clock and they then went to the Richardson home. Mrs. Richardson opened the front door with her key and she and Brown entered. Mr. Brown heard some noise as they reached the bedroom door and Mrs. Richardson stated she heard something "like the bed squeaking; like someone jumping out." There were no lights on in the house. They then entered the bedroom and found appellant Richardson in bed, the bedclothing turned back on one side and "The opposite side of the bed showed the impression of a body and the head on a pillow." Richardson was attired only in a union suit. Mrs. Richardson asked: "Where is that woman that is here?" and appellant Richardson answered: "There is no woman here." Shortly thereafter Mrs. Bird was found in the closet off the bedroom in which Richardson was found, she clothed only in a dress, and without underwear, shoes or stockings. When found Mrs. Bird said, according to Mrs. Richardson: "Why Mrs. Richardson, you are a fool to come here and make a fuss like this. Don't you know that your husband will lose his job?" The witness Brown stated that on being found Mrs. Bird made the statement: "She said she would accept all the blame, she was to blame but she didn't want Mr. Richardson to lose his job, words to that effect." Officer Tritt, who came in later, stated Mrs. Bird made the statement that "she would take the blame; it was all her fault."

There is further testimony that Mrs. Bird was seen approaching the Richardson house on numerous occasions, always approaching by way of the alley and entering the back door, and that the blinds were always down. Mrs. Bird was seen driving Mr. Richardson's car on several occasions, usually Mr. Richardson being along, but sometimes Mrs. Bird being alone. There is evidence that Mrs. Bird lived at at least three different places in Caldwell over a period of several months and at each of these places had a room or rooms with but one bed, and that Mr. Richardson called upon her frequently at these places, usually on Saturday evenings and was seen leaving on Sunday afternoons or Mondays. At these places Mrs. Bird referred to Mr. Richardson as "her husband," "her man" or "Dick," and upon at least one occasion Richardson was addressed by one witness as Mr. Bird, spoke in return and made no correction or disavowal. Richardson's association with Mrs. Bird had extended over a period of approximately three years, he first meeting her at Huntington, Oregon, and the relationship thereafter was of an intimate character. Richardson himself admitted that Mrs. Bird had been to his home on two occasions and that he had seen her at Huntington, at the Union Hotel, Palace Hotel and Roberts Apartment House in Caldwell, and at the Home Hotel and on the street in Boise. After Mrs. Bird left Huntington and while she resided at the various places above referred to she was unemployed. Without going into detail, the record discloses a flat contradiction between the testimony of Mrs. Bird and certain state's witnesses, touching the conduct, movements and intimacy of the relationship existing between Mrs. Bird and Richardson. In view of the verdict it may be said that her testimony was impeached in several important particulars. Both Richardson and Mrs. Bird denied the commission of the offense charged and Richardson denied having seen much of Mrs. Bird during the previous two years, testifying Mrs. Bird was at his home on but two occasions and sought to explain that their conduct was innocent on the theory that Mrs. Bird was employed to clean house and perform other domestic duties for him. The testimony of Richardson in this respect was not accepted by the jury, which found both Richardson and Mrs. Bird guilty of the charge laid in the information, from which verdict, and the judgment based thereon, and from an order denying a motion for new trial, this appeal is prosecuted.

Coming now to the assignments of error; specifications (1) and (2) are that the evidence is insufficient to sustain the verdict and that the verdict is contrary to law and the evidence upon the ground that the evidence is circumstantial and does not meet the requirements of law for a conviction upon circumstantial evidence. We think the rule well established that in cases of this character the corpus delicti may be established by circumstantial evidence, and that direct evidence of the fact of intercourse is not required, but may be inferred from circumstances that lead to it by fair inference as a necessary conclusion. If the evidence establish that the parties were together in equivocal circumstances, an opportunity to commit the crime and an adulterous inclination or disposition in the minds of the parties, and it is further shown that the circumstances are inconsistent with any other reasonable hypothesis than that of guilt, then there is sufficient circumstantial evidence to support a conviction. In State v. Sims, 35 Idaho 505, 206 P. 1045, it is said:

"It would have been better if the court had stated that the evidence...