State v. Sheffield

• Decision Date: 20 January 1915
• Docket Number: 2616
• Citation: 146 P. 306,45 Utah 426
• Court: Utah Supreme Court
• Parties: STATE v. SHEFFIELD

146 P. 306

45 Utah 426

STATE v. SHEFFIELD

No. 2616

Supreme Court of Utah

January 20, 1915

Appeal from the District Court, First District; Hon J. D. Call Judge.

Robert Sheffield was convicted of adultery. He appeals.

REVERSED AND REMANDED.

Maughan & Law and Geo. Q. Rich for appellant.

A. R Barnes, Atty. Gen., and E. V. Higgins and G. A. Iverson Asst. Attys. Gen., for the State.

STRAUP C. J., FRICK, J., McCARTY, J., concurring.

OPINION

STRAUP, C. J.

The defendant was convicted of adultery, and appeals. The alleged errors are: That he was not given a preliminary examination of the offense for which he was tried and convicted; insufficiency of the evidence to support the verdict; and that the verdict is against the charge.

A complaint was filed before a magistrate charging the defendant, a married man, with adultery committed with W., an unmarried woman, on the 23d of August, 1913, in the County of Cache. Upon that complaint he was given a preliminary hearing and held to answer. An information was filed in the district court charging him with adultery, as in the complaint alleged, on the 23d. He pleaded not guilty. On the trial the district attorney called a witness and offered to show associations between the defendant and W. on the 16th. To that the defendant objected on the ground that the transaction so offered to be shown was not the same transaction described in the complaint or in the information, moved to quash the information, and, in support of the motion, offered to show that at the preliminary examination all the evidence was directed to an adulterous act claimed to have been committed on the 23d, and not the 16th. The district attorney also stated that he elected "to rely for a conviction upon a transaction occurring on or about the 16th," and over the defendant's objections, along the same line, was permitted to adduce evidence respecting that occasion. W., a witness called by the State, after testifying that she was an unmarried woman and acquainted with the defendant, testified that on the 16th she, at the residence of B. in Logan, was in company with M., B.'s daughter, the defendant, and one Kimball. That is all of any materiality testified to by her. M. was called, who testified that she, W., the defendant, and Kimball were together in the dining room of her father's house at about ten o'clock on the 16th. What the occasion, incident, or purpose was of their meeting was not testified to. Her parents were absent, visiting in Idaho. No one else was in the house except her "little brother," who was asleep in an adjoining room. She further testified that on that occasion the defendant and W. left the dining room, went to the parlor, an adjoining room, closed the door between the rooms, remained there for about an hour, and then returned to the dining room. This was all that was testified to by her as to that occasion. She did not testify as to anything else heard or observed, nor as to anything said or anything else done by any one; nor anything further with respect to the conduct, demeanor, behavior, or appearance of either the defendant or W. That is the time and the place the State claimed, and elected to show, the adulterous act charged was committed. M. further testified that on two other occasions in May she and Kimball, and the defendant and W. were motoring after dark. On one of them on the outskirts of town the car was stopped, the defendant and W. left it, went away, were gone about thirty minutes, and then returned. On the other, the car was stopped near the Agricultural College grounds. That time Kimball and M. left the car, went away, were gone about thirty minutes, and then returned, finding the defendant and W. at the car. That was all that she testified to as to those occasions. M. further testified that in June she was at the residence of W.'s father in Logan. W.'s father, her brother, and sister were at home. At about nine o'clock, the defendant and Kimball there called on W. and M. in the parlor. On that occasion the defendant and W. left the parlor, went into the dining room, drew the curtains between the two rooms, remained there about an hour, and then returned to the parlor. That was all that she testified to as to that occasion. Again nothing was testified to as to the incident of the visit, nor as to anything said or done by any one, except as stated. These occasions were permitted to be shown to show an adulterous disposition or inclination between the defendant and W. M. further testified that, shortly before the defendant's arrest, Kimball, in his presence and in the presence of the two women, stated that if they "did not testify they could not punish them (the defendant and Kimball)." An officer testified that on the night of the 23d of August he asked the defendant, "How long have you been screwing" W.? and that he replied: "My God Don't ask me that question." The officer said, "You know you have been doing it," to which the defendant replied: "I know I have, but we have cut it out. You know what it will mean to my wife and family if this gets out to the public. Let us close it up; call it off." That is the State's case.

At the conclusion of its evidence the defendant moved for a discharge on the ground of insufficiency of the evidence, and to quash the information on the further ground that he was not given a preliminary examination of the offense and transaction of the 16th, and, in support of the motion, again offered to show that the only transaction investigated at the preliminary hearing was one on the 23d, and that the occasion or transaction testified to by the witness on the trial was a different occasion and a separate and distinct transaction. The court again denied the offer, and overruled the motions.

The defendant then renewed the offer as a part of his case. The court now admitted it. The defendant was permitted to put in evidence a transcript of a stenographic report of the proceedings and the evidence adduced at the preliminary examination, which report was taken and transcript made, at the instance, for the benefit, and at the expense of the defendant. It shows that all the witnesses testifying at the preliminary examination testified concerning an occasion on the night of the 23d at B.'s house and at a time when the defendant, Kimball, M. and W. were present and alone in the house. It further shows that at that hearing no evidence whatever was adduced as to any other night or to any other occasion, nor concerning any other relation or association between the defendant and W. At the trial no witness was called by the State who had given testimony at the preliminary examination, except the officer, who testified only as to the admission made by the defendant heretofore referred to. M. also testified that the occasion and the night at B.'s house, testified to by her as being on the 16th, was not the occasion nor the night testified to by the witnesses at the preliminary examination as being on the 23d. Upon that undisputed evidence the defendant again moved the court to quash the information and for a discharge on the ground that he was not given a preliminary examination of the transaction and offense claimed to have been committed on the night of the 16th, the one elected by the State and relied on for a conviction. The motion was denied.

The court charged the jury that to convict the defendant the State was required to prove beyond a reasonable doubt that he "in the month of August on or about the 16th, the exact date alleged not being material to be proved, and before the filing of the complaint in the justice's court and before the 23d day of August, 1913, did have sexual intercourse with" W., and further charged them that:

The State "has elected to rely for a conviction upon the act of adultery alleged to have been committed on or about the 16th day of August, 1913, which alleged act, for the purpose of this case, is the one charged in the information, and that any testimony of any act of adultery committed prior to the said 16th day of August, 1913, if you find any act of adultery was committed, was received for the purpose of explaining the said alleged act, and as showing a tendency to render it more probable that the said act charged in the information was committed, and you are not to consider such testimony as independent testimony, and the same is limited to the purpose as in this instruction set forth, and unless you find beyond a reasonable doubt that the defendant is guilty of the act of adultery complained of in the information, as herein explained, then your verdict must be in favor of the defendant, not guilty."

It is thus seen that while the defendant was finally permitted to show that the occasion on the 23d of August, as testified to by all the witnesses at the preliminary examination, and that of the 16th as testified to by the witnesses on the trial, were different nights and different occasions, nevertheless, the court by its charge destroyed, both in fact and in law, all that the defendant claimed for that proof. Complaint is made of this, and of the court's refusal to hear the defendant's proof as tendered before receiving testimony concerning the occasion of the 16th.

Under the Constitution and the statutes of this state, a preliminary examination, unless waived by the accused with the consent of the State, is a prerequisite to a prosecution by information. A verified complaint or an affidavit before a magistrate charging the accused with a public offense is essential to the examination. Without it the power of the magistrate to act is not judicially invoked. So, also, must the information be for the same offense charged in the complaint and for which the accused was held to answer, or for one embraced or included...