State v. Thompson

• Decision Date: 19 November 1906
• Docket Number: 1769
• Citation: 87 P. 709,31 Utah 228
• Court: Utah Supreme Court
• Parties: STATE v. THOMPSON

87 P. 709

31 Utah 228

STATE v. THOMPSON

No. 1769

Supreme Court of Utah

November 19, 1906

APPEAL from District Court, Millard County; Joshua Greenwood, Judge.

Axel Thompson was convicted of adultery, and he appeals.

REVERSED. New trial granted.

Ray Van Cott for appellant.

APPELLANT'S POINTS.

It was error to permit Tora Jensen to testify to alleged acts of sexual intercourse occurring at a time on or about the 1st day of February, 1905, a time wholly outside of the time alleged in the information. (Commonwealth v Thrasher, 77 Mass. 450; 2 Greenleaf on Evidence, sec 47.)

It was also error to permit Tora Jensen to state that she was pregnant at the time of the trial and in permitting her to state, the last time that she menstruated. (Commonwealth v. O'Connor, 107 Mass. 219, 221; Hilton v. State [Tex], 53 S.W. 113, 115; Barnes v. State [Tex.], 39 S.W. 684; 686; State v. Brassfield, 81 Mo 151, 51 Am. Rep. 234.

M. E. Breeden, Attorney-General, for the State.

RESPONDENT'S POINTS.

The testimony from the prosecutrix that she was in the family way at the time of the trial, was not inadmissible and immaterial. She being and having always been an unmarried woman, the fact of pregnancy was positive proof of illicit connection with some one. It did not fix the plaintiff in error as a participant therein; but it was a fact in the case, not incompetent to be made known to the jury. (Armstrong v. People, 70 N.Y. 38; People v. Goodwin [Cal.], 64 P. 561; State v. Hasty [Iowa], 96 N.W. 115; Powell v. State [Tex.], 44 S.W. 504; State v. Wickliff [Iowa], 64 N.W. 282.

STRAUP, J. FRICK, J., concurs. McCARTY, C. J., concurring in part and dissenting in part.

OPINION

STRAUP, J.

1. The defendant was convicted of adultery and appeals. It was alleged in the information that the defendant, a married man, "on the 13th day of February, 1905, and on divers other days and thence continually between the said 13th day of February, 1905, until the 1st day of August, 1905," committed adultery with Tora Jensen, an unmarried woman. To this information a demurrer was filed on the grounds that no offense was alleged, and that more than one offense was charged. It is urged that instead of charging adultery there is charged the crime of living in a state of adultery, which is not a crime under the Penal Code. It is true that living in a state of adultery is not made an offense by statute. The information, however, charges sufficient facts to constitute the crime of adultery as defined by section 4210, Revised Statutes 1898. An offense of adultery committed on a specified day and year is charged. Whether the information is open to the objection of duplicity is more serious. Section 4734, Revised Statutes 1898, as amended by chapter 31, p. 51, Sess. Laws, 1899, provides that an information or indictment must charge but one offense. It is urged by appellant that by this information more than one offense of adultery is charged. We think not. Every information or indictment, to be adequate, must allege a day and year on which the offense was committed. It is inadequate to charge an offense committed at some indefinite time between two specified days. The information charged an offense committed on a specified day and year, the 13th day of February, 1905. It did not sufficiently charge another offense committed on another specified day and year. It only charged an offense committed at some indefinite time between two specified days. But such an allegation is inadequate to charge an offense. If a count attempts to charge two or more offenses, yet, but one of them sufficiently, the information is not double; to be so, it must have complete averments of not less than two. Had the information charged two adulterous acts committed on two separate and specified days, then it could be said two offenses had been charged. But this information does not so charge. Under it, the defendant could be convicted of but one offense. The allegation that the defendant committed the offense at an indefinite time on divers days between two specified days does not charge any offense, and may be rejected as surplusage. The allegation that the offense was committed on a certain day and thence continually between certain days, charges but one offense, because the day of another offense committed is not sufficiently specified. Each act of adultery constitutes a separate offense. Adultery is not a continuous offense. A continuando is not necessary unless for an essentially continuous offense. When an information sufficiently charges an offense, not essentially continuous, committed on a specified day and year with an unnecessary continuando, the continuando does not injure the information, but may be rejected as surplusage. The views herein expressed are supported by the following authorities: State v. Briggs, 68 Iowa 416, 27 N.W. 358; People v. Adams, 17 Wend. (N.Y.) 475; State v. Nichols, 58 N.H. 41; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Wharton, Crim. Pl. and Pr. (9th Ed.), section 125; Bishop's New Crim. Proc., sections 395-396, 440. While the form of this pleading is not to be commended, yet, for the foregoing reasons, we are of the opinion that the information is not open to the objection of duplicity. No error was committed in overruling the demurrer.

2. Over appellant's objection the state was permitted to give evidence of an adulterous act committed on the 1st day of February, 1905. It was as to that day and as to that offense that the case of the state was directed. It is claimed by the appellant that the state could not allege an offense committed on the 13th day of February, and prove an offense committed on the 1st day of February. The contention made is fully answered against appellant in the cases of State v. Woolsey, 19 Utah 486, 57 P. 426, and State v. Hilberg, 22 Utah 27, 61 P. 215, where the matter is fully discussed.

3. The case was tried on the 18th day of October, 1905. The prosecutrix testified that she was and always had been a single and unmarried woman, and that she never had sexual intercourse with any person other than the defendant. Over defendant's objection, she was permitted to state that at the time of the trial she was pregnant. A physician, who had examined her on the day before the trial, was permitted to state, over defendant's objection, that the prosecutrix was about eight months in pregnancy and that, in his judgment, conception took place during the early part of the month of February, or possibly the middle. It is claimed that this evidence was incompetent (1) because it did not tend to show that the defendant had sexual intercourse with the prosecutrix, and (2) that it was indirectly permitting the state to prove an adulterous act subsequent to the one relied on for a conviction. The prosecutrix being, and having always been, an unmarried woman, the fact of pregnancy was positive proof of illicit connection with some one. It did not fix the appellant as the participant therein, but it was a fact in the case competent to be made known to the jury as corroborative of the testimony of the prosecutrix that a crime had been committed on or about the time relied on for a conviction. For such purpose the testimony was competent and properly received. (Armstrong v. People, 70 N.Y. 38; People v. Goodwin, 132 Cal. 368, 64 P. 561; State v. Wickliff, 95 Iowa 386, 64 N.W. 282.) From the pregnant condition of the prosecutrix and the period of gestation as described to the jury, they might find that conception took place on or about February 1st, the time elected by the state for a conviction, and hence the testimony is not open to the objection that it necessarily tended to prove another and subsequent adulterous act.

4. The court charged the jury: "You are instructed that some testimony has been given tending to show that the witness Tora Jensen (the prosecutrix) is now in delicate health, or, in other words, is pregnant. If you believe beyond a reasonable doubt that she is pregnant, then, in that event, you may take that fact into consideration in so far as it may in connection with other evidence, tend to connect the defendant with the crime or corroborate her testimony. Nevertheless, I charge you that such fact, if you believe beyond a reasonable doubt that it is a fact, is not of itself any evidence that the defendant has had sexual intercourse with the said Tora Jensen." The giving of this instruction is assigned as error. It is contended that the court charged the jury that it may consider the fact of pregnancy as tending "to connect the defendant with the crime," and that this is an erroneous statement of the law; and that when the court in the subsequent sentence charged the jury that pregnancy "is not of itself any evidence that the defendant has had sexual intercourse with" the prosecutrix, the jury were given inconsistent instructions, and were misled as to the purpose for which this evidence could properly be considered by them. The point is well taken. The prosecutrix was an accomplice. Section 4862, Revised Statutes 1898, provides:

"A conviction shall not be had on the 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 shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof."

It was therefore essential to a conviction that there be evidence corroborative of the testimony of the accomplice "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...