State v. Shelton

• Decision Date: 04 June 1928
• Docket Number: 5127
• Citation: 267 P. 950,46 Idaho 423
• Parties: STATE, Respondent, v. DIXIE ROBERT SHELTON, Appellant
• Court: Idaho Supreme Court

267 P. 950

46 Idaho 423

STATE, Respondent, v. DIXIE ROBERT SHELTON, Appellant

No. 5127

Supreme Court of Idaho

June 4, 1928

CRIMINAL LAW-JURY-CHALLENGE TO PANEL-TRIAL OF-ADULTERY-PROOF OF MARRIAGE-EVIDENCE OF PRIOR AND SUBSEQUENT ACTS-PROSECUTRIX AN ACCOMPLICE-CORROBORATION OF-INSTRUCTION TO ACQUIT-DISCRETION OF COURT NOT REVIEWABLE.

1. In prosecution for adultery, matter of special venire is within court's discretion.

2. In prosecution for adultery, it is discretionary with court whether it will permit challenge to juror for actual bias to be tried by other evidence than that of juror himself, under C. S., secs. 8935, 8936.

3. In absence of evidence to contrary, it will be presumed that defendant, in prosecution for adultery, offered no witness to support challenge to juror for actual bias, and that court was satisfied with examination on voir dire.

4. In prosecution for adultery, testimony to declarations of defendant referring to his wife held competent to establish fact of marriage prima facie.

5. In prosecution for adultery, evidence of acts both prior and subsequent to that with which defendant is charged is admissible to show intimacy and adulterous inclination of defendant, providing prosecution elects an act of particular date as act charged and introduces some evidence to support such election.

6. In prosecution for adultery, denial of motion to strike testimony of prosecutrix relative to other meetings with de- fendant held not prejudicial error, where motion to elect which act would be relied on was not made until conclusion of state's case, notwithstanding that election should have been made before evidence of other offenses was introduced.

7. In prosecution for adultery, refusal of court to advise acquittal is purely a matter of discretion and not reviewable.

8. In prosecution for adultery, birth of child held not corroborative testimony tending to connect defendant with commission of offense alleged.

9. In prosecution for adultery, evidence corroborating that of prosecutrix held insufficient to sustain conviction, where only corroborative circumstances were that defendant was a married man and that he was seen with prosecutrix on certain occasions and inquired for her at her temporary abode on two others.

10. In prosecution for adultery, opportunity to commit offense must be shown as to time and place of offense alleged.

11. In prosecution for adultery, prosecutrix is an accomplice.

APPEAL from the District Court of the Fifth Judicial District, for Franklin County. Hon. Robert M. Terrell, Judge.

Defendant was convicted of the crime of adultery and he appeals. Reversed and remanded, with instructions to grant a new trial.

Reversed and remanded, with instructions.

L. R Morgan and P. J. Evans, for Appellant.

The court erred in said case in refusing to sustain defendant's challenge to the jury panel in said cause whereby defendant was denied a fair and impartial trial by a jury of his peers as provided by C. S., secs. 6529-6537 inclusive. (C. S., secs. 6529-6539.)

The said verdict is contrary to the evidence in that there was no sufficient competent testimony introduced in said action, outside of the testimony of the confessed accomplice, tending to show the commission of the offense charged, or the circumstances thereof, or tending to connect the accused with the commission of the crime charged. (C. S., sec. 8957; State v. Clark, 27 Idaho 48, 146 P. 1107; State v. Knudtson, 11 Idaho 524, 83 P. 226; State v. Bond, 12 Idaho 424, 86 P. 43; Pate v. State, 91 Tex. Cr. 471, 239 S.W. 967; People v. Doyle, 107 Misc. 268, 177 N.Y.S. 641; Underhill, Cr. Ev., 3d ed., pp. 93, 162, sec. 130; People v. Clough, 73 Cal. 348, 15 P. 5; State v. Lay, 38 Utah 143, 110 P. 987; State v. Carr, 28 Ore. 389, 42 P. 215; 12 Cyc. 456, 457; 16 C. J. 679; People v. Robbins, 171 Cal. 466, 154 P. 317; People v. Sciaroni, 4 Cal.App. 698, 89 P. 133; People v. Flood, 41 Cal.App. 373, 182 P. 766; McAlester v. State, 15 Okla. Cr. 78, 174 P. 1106; Vails v. State, 59 Tex. Cr. 340, 128 S.W. 1117; People v. Becker, 210 N.Y. 274, 104 N.E. 396; 1 R. C. L., p. 169, sec. 15.)

The court erred in denying defendant's motion for an instruction, directing the jury to acquit the defendant, made at the conclusion of the state's case, and renewed at the end of the taking of testimony in said case, on the ground that there was not sufficient corroboration of the testimony of the accomplice. (C. S., secs. 8957, 8963; Territory v. Neilson, 2 Idaho (579) 614, 23 P. 537.)

The court erred in refusing to strike from the testimony of complaining witness evidence regarding certain meetings and acts between said witness and defendant on the ground that such testimony was incompetent, irrelevant, immaterial and too remote, and did not tend to prove any issue in the case. (8 R. C. L., p. 179, sec. 172.)

The court erred in refusing to strike the testimony of witness Sheriff Head, regarding the marriage of defendant, on the ground that the same was incompetent, irrelevant and immaterial and not the proper way of proving a marriage in a criminal proceeding, and as not tending to prove any issue in the case. (People v. Breeding, 19 Cal.App. 359, 126 P. 179; 1 Wharton's Crim. Ev. 405, 407, 471; Johnson v. State, 60 Ark. 308, 30 S.W. 31; Ham's Case, 11 Me. 391; State v. Dooris, 40 Conn. 145; State v. Matlock, 70 Iowa 229, 30 N.W. 495; State v. White, 19 Kan. 445, 27 Am. Rep. 137; State v. Edmiston, 160 Mo. 500, 61 S.W. 193; Cox v. State, 117 Ala. 103, 67 Am. St. 166, 23 So. 806, 41 L. R. A. 760; Commonwealth v. Lucas, 158 Mass. 81, 32 N.E. 1033.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

The trial court has authority to select a jury by special or open venire. (C. S., sec. 6338; State v. Barber, 13 Idaho 65, 88 P. 418; State v. Steen, 29 Idaho 337, 158 P. 499.)

Independent evidence, even though slight and circumstantial, is sufficient to corroborate the testimony of an accomplice if it tends to connect the defendant with the commission of the crime charged in the information. (State v. Grimmett, 33 Idaho 203, 193 P. 380; State v. Smith, 30 Idaho 337, 164 P. 519; State v. Gillum, 39 Idaho 457, 228 P. 334; State v. Whisler, 32 Idaho 520, 185 P. 845; State v. Sims, 35 Idaho 505, 206 P. 1045; People v. Rose, 42 Cal.App. 540, 183 P. 874; State v. Ritz, 65 Mont. 180, 211 P. 298; State v. Bolton, 65 Mont. 74, 212 P. 504; 1 R. C. L. 171.)

The granting or refusal of a motion for an instructed verdict lies within the discretion of the trial court. (State v. Haverly, 4 Idaho 484, 42 P. 506; State v. Murphy, 29 Idaho 42, 156 P. 908; State v. Simpson, 31 Idaho 591, 173 P. 748.)

In adultery cases evidence of prior meetings and adulterous conduct is admissible to show the intimacy between the parties. (Underhill on Crim. Ev., 3d ed., sec. 581.)

In an adultery case, defendant's marriage may be proven by declarations and admissions made by the defendant. (State v. Moore, 36 Utah 521, Ann. Cas. 1912A, 284, 105 P. 293; In re Kiesl's Estate, 35 Wyo. 300, 249 P. 81; State v. Park, 44 Utah 360, 140 P. 768; State v. Greene, 38 Utah 389, 115 P. 181; 2 C. J. 27.)

It is discretionary with a trial court whether or not it shall permit a challenge to a juror to be tried by other evidence than that of the juror himself. (C. S., sec. 8936.)

GIVENS, J. Wm. E. Lee, C. J., and Taylor, J., concur. Budge and T. Bailey Lee, JJ., dissent.

OPINION

GIVENS, J.

Defendant Shelton, convicted of adultery, appeals. The particular act was charged to have been committed on or about January 1, 1926. Over defendant's objection, the prosecutrix was permitted to testify to several other meetings with defendant and especially to three additional acts of intercourse had with him in August and September, 1925, and February, 1926. Upon motion of defendant's counsel, the court required the state to elect the particular act upon which it relied for a conviction; and, the act of January 1, 1926, having been elected, counsel moved to strike all evidence of the prosecutrix covering other relations. The motion was denied.

There are thirteen assignments of error. The jury panel had been summoned by special venire. Defendant challenged the panel, insisting that he was entitled to a trial by a jury drawn according to law. The challenge was properly denied, the matter of special venire being within the court's discretion. (State v. Steen, 29 Idaho 337, 158 P. 499; State v. Barber, 13 Idaho 65, 88 P. 418.)

Nor did the court err in denying defendant's challenge to the juror, Peterson, for actual bias, and denying a requested trial of such challenge. It is discretionary with the court whether or not it will permit a challenge to a juror to be tried by other evidence than that of the juror himself. (C. S., secs. 8935, 8936.) In the absence of a showing to the contrary, it will be presumed that the defendant offered no witness in support of his challenge, and that the court was satisfied with the examination on the voir dire.

In order to prove the defendant a married man at the time of the alleged act, the witnesses, Paton and Head testified to certain declarations of defendant referring to the latter's wife. Their testimony, coupled with that of the witness, Jensen, conclusively showed that both prior and subsequent to January 1, 1926, the defendant was residing with a woman he held out as his wife, and that such woman was one and the same. Defendant moved to strike the testimony of the two former witnesses, and complains of the court's denial of his motion, insisting that the evidence was incompetent to prove a marriage in a criminal prosecution. That such evidence was competent to establish the fact of marriage prima facie...