State v. Sims

• Decision Date: 01 June 1922
• Citation: 206 P. 1045,35 Idaho 505
• Parties: STATE, Respondent, v. HAROLD M. SIMS, Appellant
• Court: Idaho Supreme Court

206 P. 1045

35 Idaho 505

STATE, Respondent, v. HAROLD M. SIMS, Appellant

Supreme Court of Idaho

June 1, 1922

MOTIVE OF PROSECUTION-HEARSAY-C. S., SEC. 9068-INSUFFICIENCY OF EVIDENCE-SPECIFICATION OF PARTICULARS-C. S., SEC 8957-CORROBORATION OF ACCOMPLICE-ADULTERY-OPPORTUNITY-ADULTEROUS INCLINATION-INSTRUCTION - PREJUDICAL ERROR - SUFFICIENCY OF EVIDENCE-COMPETENCY OF WITNESS-EXAMINATION AS TO.

1. Rule of State v. Whisler, 32 Idaho 520, 185 P. 845, as to corroboration of accomplice's testimony, affirmed and followed.

2. Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction unless the circumstances prove beyond a reasonable doubt that the crime was committed as charged, and are inconsistent with any reasonable hypothesis other than the defendant's guilt.

3. When there is no evidence calling for an instruction on a certain point, it should not be given.

4. Although an instruction is given which is not called for by the evidence, it is not reversible error, when from the entire record it reasonably appears that the defendant could not have been prejudiced thereby.

5. When an objection is made to a witness testifying on the ground he is of unsound mind, and the court overrules it, without making any preliminary inquiry, this is not reversible error if the witness is later examined and cross-examined, and no evidence is produced showing he is of unsound mind.

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Wm. A. Babcock, Judge.

Judgment of conviction for adultery. Affirmed.

Affirmed.

C. M Booth, for Appellant.

Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction, but there must be circumstances inconsistent with any other reasonable hypothesis. (State v. Trachsel, 150 Iowa 135, 129 N.W. 736.)

The evidence is insufficient to support the verdict of the jury or the judgment rendered thereon. (State v. Trachsel, supra; People v. Turner, 260 Ill. 84, Ann. Cas. 1914D, 144, 102 N.E. 1036.)

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

An instruction which informs the jury that evidence of an adulterous disposition or inclination, together with evidence of an opportunity to commit the crime, would be sufficient to justify the jury in bringing in a verdict of guilty, if the evidence satisfies them of the guilt beyond a reasonable doubt, is a correct instruction. (State v. Eggleston, 45 Ore. 346, 77 P. 738.)

When assigning the insufficiency of the evidence to support the verdict or the judgment, it should be specified wherein the evidence is insufficient. (C. S., sec. 9068; State v. Jones, 28 Idaho 428, 154 P. 378; State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 Idaho 403, 201 P. 494.)

The evidence is sufficient to sustain the verdict and the judgment based thereon. (2 C. J., sec. 43, p. 22; Monteith v. State, 114 Wis. 165, 89 N.W. 828; State v. Lamore, 53 Ore. 261, 99 P. 417; Cummings v. State, 14 Ga.App. 441, 81 S.E. 366; Counts v. State, 49 Tex. Cr. App. 329, 94 S.W. 220; Wong Goon Let v. United States, 245 F. 745; State v. Kimball, 74 Vt. 223, 52 A. 430.)

MCCARTHY, J. Rice, C. J., and Dunn, J., concur.

OPINION

MCCARTHY, J.

Defendant was convicted of adultery, and appeals to this court. His specification of errors is as follows: "The court erred (1) in giving instruction No. 20; (2) in refusing to admit testimony tending to show that this prosecution was malicious (ff. 1107 to 1112, inclusive), and in refusing to admit testimony which would explain the actions of the defendant wherein he attempted to have Ruth Emile Jester leave Twin Falls, Idaho; (3) the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon.

We will consider the errors specified in the order which we consider logical for the purposes of this opinion.

We will consider the second specification first. In support of it, appellant refers to transcript folios 1107 to 1112, inclusive. It there appears that appellant's counsel offered to prove by appellant himself that he had been told by members of the Jester family that the prosecutrix, Ruth Jester, was under the complete domination of her father, had been dominated by him, and had been physically beaten by him. Undoubtedly appellant was entitled to show by competent evidence, as bearing upon the credibility of the prosecutrix as a witness, that she was dominated by her father. He offered to prove this, however, by incompetent testimony, to wit, hearsay. The court did not err in refusing to permit the introduction of such evidence.

We turn next to the third specification of error, that the evidence is insufficient to support the verdict of the jury and the judgment rendered thereon.

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."

This is an appeal from the judgment. The particulars in which the evidence is insufficient to sustain the verdict are not stated. The specification is therefore not sufficient to raise the point of insufficiency of the evidence. (State v. Maguire, 31 Idaho 24, 169 P. 175; State v. Snook, 34 Idaho 403, 201 P. 494; State v. Jones, 28 Idaho 428, 154 P. 378.)

If, however, we waive this technical point and consider the evidence itself, we conclude that it is sufficient to support the verdict and judgment. The point attempted to be made by counsel in his brief is that there was not sufficient evidence to corroborate the testimony of the prosecutrix, who was admittedly an accomplice. C. S., sec. 8957, provides: "Sec. 8957. A conviction cannot be had on testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof."

This court has said: "Evidence of a material fact, which, independent of the testimony of an accomplice, tends to connect the defendant with the commission of the offense charged is sufficient to satisfy the requirements of C. S., sec. 8957." (State v. Whisler, 32 Idaho 520, 185 P. 845. See, also, State v. Smith, 30 Idaho 337, 164 P. 519; State v. Knudtson, 11 Idaho 524, 83 P. 226.) Statements and actions of the defendant after his arrest, testified to by witnesses, constitute sufficient corroboration to satisfy the requirements of the statute.

We come now to the first specification of error, which raises the most serious question in the case. The court's instruction No. 20 is as follows: "You may take into consideration any evidence tending to show an opportunity upon the part of the defendant, Harold M. Sims, and Ruth Emile Jester, to commit the crime charged in the information. Evidence of an adulterous disposition or inclination, together with evidence of an opportunity to commit the crime, would be sufficient to justify you in bringing in a verdict of guilty against the defendant, if this evidence satisfies you beyond a reasonable doubt that the crime charged in the information was committed."

Appellant contends that this instruction is erroneous as a statement of law, and the giving of it is reversible error. The supreme court of Oregon has said: "When proof of an adulterous disposition on the part of each participant of an act of adultery has been produced, the commission of the crime may be inferred from evidence of an opportunity to commit the act." (State v. Eggleston, 45 Ore. 346, 77 P. 738.)

The supreme court of Iowa has said: "Mere disposition and opportunity to commit adultery are not alone sufficient to justify a conviction, but there must be circumstances inconsistent with any other reasonable hypothesis." (State v. Trachsel, 150 Iowa 135, 129 N.W. 736.)

The same court has said: "It is urged that mere opportunity to commit adultery, together with an adulterous disposition, is not sufficient proof to sustain such an accusation (citing State v. Trachsel, 150 Iowa 135, 129 N.W. 736). Such is the law. It is wisely intended to protect one from the erroneous conclusions which sometimes are drawn from innocent acts. On the other hand, it is to be considered that were proof required of actual cohabitation, as distinguished from conditions and circumstances which would reasonably permit no other conclusion, the statute against such an offense would be of little practical value, excepting for its possible deterrent effect. Where, as in the present case, there were combined the adulterous disposition, together with the evidence, not only of opportunity, but also of position, the case is clearly within the rule so often stated by this court." (State v. Taylor, 160 Iowa 328, 141 N.W. 946.)

The supreme court of Wisconsin has said: "It is enough, to sustain 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 and just man to the conclusion of guilt beyond a reasonable doubt." (Monteith v. State, 114 Wis. 165, 89 N.W. 828. See also, Cummings v. State, 14 Ga.App. 441, 81...