State v. Warner
| Decision Date | 21 July 1932 |
| Docket Number | 5002 |
| Citation | 13 P.2d 317,79 Utah 510 |
| Court | Utah Supreme Court |
| Parties | STATE v. WARNER |
Appeal from District Court, Third District, Salt Lake County; O. W McConkie, Judge.
For former opinion see 79 U. 500; 291 P. 307.
Former order affirming judgment below vacated, and such judgment reversed and case remanded for new trial.
F. W James and N. H. Tanner, both of Salt Lake City, for appellant.
Geo. P Parker, Atty. Gen., and L. A. Miner, Deputy Atty. Gen., for the State.
OPINION On rehearing.
In this case the judgment of conviction on appeal by the defendant was affirmed. 79 Utah 500; 291 P. 307. There may be found the facts and a review of the questions presented and considered. On application by the defendant a rehearing was granted. It was urged that we, in affirming the judgment in some particulars, erred as to the law announced on the prior hearing. We are satisfied with what we there said and decided and in such respect affirm our former opinion. A point, however, is urged which was assigned as error and discussed, and which it is asserted we had not considered, and as shown by the opinion was not decided, in fact no mention made of it in the former opinion.
The point made is that the defendant was denied a substantial right on cross-examination of the prosecutrix. On the former hearing we thought the alleged error not of sufficient prejudicial effect to justify a reversal of the judgment. We have thus re-examined it.
To illustrate the character and effect of the alleged error it is necessary to again briefly refer to some of the evidence. The defendant was convicted of the crime of incest, having carnal knowledge of the body of his daughter between 13 and 14 years of age. He was the father of three children, two daughters, the prosecutrix, a younger daughter about 11 years of age, and one son about 16 years of age. His wife, when he married her, had a son by a former marriage who was taken into the defendant's household. She deserted him when the children were yet young. They, including the stepson, remained with the defendant. The record without dispute shows that he took a great interest in his children, maintained them, and employed housekeepers to keep house and to assist in taking care of the children. He was shown to be of good habits and morals, industrious, and was employed in honorable employment. The state for conviction relied alone on the testimony of the prosecutrix. As is seen by the former opinion, her testimony was wholly uncorroborated. We there held she was not an accomplice, and hence a conviction could lawfully be had on her testimony alone without corroboration. We adhere to that ruling. The testimony of the prosecutrix as to the time, place, and manner of the commission of the alleged offense is referred to in the former opinion. The time fixed by her as to the commission of the offense was October 8, 1928. At the preliminary hearing and at the trial she fixed that date because, as she testified, the time of the commission of the charged offense was about the time of her birthday, which was October 11th. She testified that on the evening of October 8th, while the housekeeper was absent, her father sent the children to bed and told her to occupy the bed with him in his room; that she did so, and that her father that evening and on the next morning had sexual intercourse with her. The defendant was a witness in his own behalf, and denied having had any sexual relations whatever with his daughter; that the house had three bedrooms, one of which was occupied by the two daughters, one occupied by the father and his son about 16 years of age, and the other occupied by the housekeeper. His son testified that, at the time stated by the prosecutrix and for a considerable time prior thereto and thereafter, he and his father slept in one of the bedrooms, the girls in another bedroom, and the housekeeper in the third room. That also was the testimony of the housekeeper, and who testified she was not absent on the occasion testified to by the prosecutrix. To that effect was also the testimony of the younger daughter. They all testified to facts and circumstances rendering the testimony of the prosecutrix somewhat improbable. It further was shown that, when the stepson was home, the two boys slept in the room occupied by the father and the son, and that the father slept on the porch.
The defendant and the housekeeper married in March following. In September following, about a year after the time the prosecutrix testified to the criminal relations with her father, the housekeeper, then the wife of the defendant, learned of criminal relations between the prosecutrix and her half-brother. She thereupon filed a complaint in the juvenile court against the half-brother whereupon he and the prosecutrix were taken in custody by the officers of the juvenile court. It was then the prosecutrix for the first time made any claim of criminal relations with her father. That was made to the juvenile court officers. That led to the arrest of the defendant.
The prosecutrix, having testified to criminal relations with her father and having also testified to criminal relations with her half-brother, and with another young boy, both before and after her relations with her father, on cross-examination was asked as to conversations between herself and her half-brother with respect to the relations testified to by her. The questions were asked with the view of showing that the prosecutrix and her half-brother thought that if she accused her father of criminal relations--"put the blame on him"--the authorities would not interfere with herself or with her half-brother and she was asked what in such respect she had stated to her half-brother. All efforts to elicit such matter were promptly blocked on objections by the prosecution on the ground that the matter sought to be elicited was "immaterial and irrelevant." The objection was sustained. When counsel asked to be heard "in relation to this," the court replied that he did not care to hear them; that there was no need taking up time with it; and that what was sought to be elicited "was the rankest kind of hearsay"; but counsel could make their record. After the ruling, counsel for the defendant further asked the witness if she had conversations with her half-brother concerning the relations testified to by her, to...
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...relevant, the Utah appellate courts also require that the defendant be permitted to use it for cross-examination. See State v. Warner, 79 Utah 510, 13 P.2d 317, 319 (1932) (holding that the trial court unduly restricted the defendant's cross-examination concerning the child complainant's di......
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