State v. Richardson, 6254

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

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

[56 Idaho 152] 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 [50 P.2d 1013] 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 [56 Idaho 153] 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...