State v. Hansen

122 P. 375, 40 Utah 418, 1912 Utah LEXIS 16

• Court: Utah Supreme Court
• Decided: February 23, 1912
• Docket: No. 2270
• Status: Published

Opinion

McCARTY, J.

(after stating the facts as above).

One of the grounds relied on for a new trial is that the evidence is insufficient to justify the verdict. The contention made is, first, that the testimony of'the accomplice (prose-cutrix) was so self-contradictory, and that she was otherwise so thoroughly impeached that the evidence was rendered unworthy of belief; and, second, that her testimony was not sufficiently corroborated to authorize a conviction.

It must be conceded that the testimony of the prosecutrix, when considered in all its phases, including the manner in which it was elicited by the district attorney, was inherently weak. The record shows that she was 1 friendly to the prosecution and was in no sense hostile to the state, and there is nothing in the record indicating that she was friendly to the defendant, yet the district attorney appears to have been unable to elicit any testimony from her of an incriminating character against the defendant, except by leading, questions of the most objectionable character indicating the answers expected to be given by her. And, when thus interrogated by the district attorney, she repeatedly, on her examination in chief, made contradictory Statements regarding matters material to the issue. As shown by the excerp/ts, the prosecutrix, in answer to leading questions asked her by the district attorney, testified that the defendant^ on one occasion when it is claimed that the offense charged was committed, first put his arms around her, and then kissed her. She was then asked, first by the district attorney and then by the court, “What else, if anything, did the defendant then do ?” This was practically the only question asked the prosecutrix on her direct examination regarding what occurred on that occasion that was not objectionable as leading, and she answered, “Nothing.” Furthermore, according to her own testimony, which was not denied, she was at the time of the trial a ward of the juvenile court, and had been given to understand by certain juvenile court officers that, unless she testified against the defendant, she would be committed to the state industrial school. These were all questions which went to the credibility of the witness and the weight of her evidence. And they were questions for the jury to consider under proper instructions from the court in determining what weight, if any, should be given the testimony of the prosecutrix. The jury having found, as indicated by their verdict, that the testimony of the prosecutrix respecting her alleged illicit relations with the defendant at Providence on or about the date charged in the information was true, this court, cannot disturb the judgment'because of such finding. The question, however, as to whether the testimony of the accomplice was sufficiently corroborated to support the verdict returned by the jury is not as free from doubt as the one we have just decided.

The only corroborative evidence given at the trial “which in itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the crime” as required by Comp. Laws 1907, "sec. 4862, is that given by Ezra Eames.

The alleged confession made by the defendant to James Hansen, and mainly relied upon by the state as corroboration of the testimony of the accomplice, cannot be considered, as it related to an entirely separate and 2 distinct transaction from the one for which the defendant was tried and convicted. As we have observed in the foregoing statement of facts, the prosecutrix testified that the defendant first had camal knowledge of her body at Providence on or about the 21st day of May, 1910. This was the first act testified to by her. She then testified that the defendant again had sexual intercourse with her near her home in the fifth ward of Logan City, in June, 1910.

The prosecution did not expressly elect as to which adulterous act it would rely upon for a conviction. It was, however, proceeding to introduce evidence to show for the purpose of fixing the venue that Providence, the 3 place of the first alleged act of intercourse, was within the jurisdiction of the court, and the defense admitted that Providence was in Cache County, Utah. We think it might reasonably be inferred from this that the first act of intercourse testified to by the prosecutrix was the one upon which the state relied for a conviction. The question of election, however, in this case, does not-rest upon inference. Under the rule announced by this court in the case of State v. Hilberg, 22 Utah, 27, 61 Pac. 215, the prosecution having, for the purpose of securing a conviction, first introduced evidence tending to show that the defendant had illicit intercourse with the prosecutrix at Providence on or about the 21st day of May, 1910, that transaction became the act charged, and the only act for which the defendant could be legally convicted. In the Hiliierg Case it is said:

“When evidence was introduced tending directly to the proof of one act, and for the purpose of securing a conviction on it, from that moment that particular act became the act charged. No election having been made by the prosecution, the law made the election. . . . this election having been thus made, by proving the first act of intercourse as having taken place in April, 1897, no subsequent election could be made, nor could the prosecution prove any other act of the kind as a substantial offense upon which conviction could be had; but it could prove the intimacy and improper relations of the parties prior to the act shown in the month of April, 1897, but not afterwards. The act of intercourse occurring April, 1897, being the first act to which evidence was introduced, and the evidence being directly upon the offense charged, it became from that moment the only offense the jury were called upon to try.”

It necessarily follows from the doctrine declared in that case, if it is to be followed, and we see no reason for departing from it, that the evidence of James Hansen regarding the alleged confession made to him by the defendant was immaterial and inadmissible for any purpose. It related to a transaction subsequent to and different from the one for which the defendant was tried and convicted, and did not have any bearing, directly or remotely, upon any issue in the case. No obeetion was made to the testimony of Hansen at the time it was given, hence error cannot be imputed to the trial court for having admitted it as was done in the Hilberg Case, but, since the judgment is assailed on the ground of insufficiency of the evidence to support it, we can give force and effect to such evidence only as was germane to the issues tried.

The only other evidence tending to- corroborate the testimony of the accomplice was that given by the witness Eames. The defendant sought to avoid the effect of this evidence by claiming that at the time he conversed with Eames about his relations with the prosecutrix he did not understand the meaning of the term “sexual intercourse,” and supposed that it meant merely intercourse in a social way. And there is evidence in the record that tends strongly to support this claim, and which correspondingly tends to weaken, but does not destroy, the effect of the testimony given by Eames. The question as to whether or not the defendant understood the meaning of the words “sexual intercourse” when he made use of them to Eames on the occasion in question was one of fact for the jury to determine, and the jury having, by their verdict, found against the defendant on that issue, such finding cannot be disturbed because we might, if we were triers of the fact, arrive at a conclusion different from the one reached by the jury.

It is not contended that the court committed prejudicial error in permitting the district attorney to ask the prosecutrix leading questions. Counsel for defendant interposed several objections to questions asked the prosecutrix by the district attorney on the ground that they were leading. No exception having been taken to the action of the 4, 5 court in overruling the objections-, we cannot consider such rulings. In view, however, that the cause must be reversed and remanded for a new trial, we remark that nearly every question asked the prosecutrix by the district attorney concerning a material fact was objectionable as leading, and ought not to have been permitted. It was not shown, nor is it claimed, that the prosecutrix was. hostile to the prosecution or in any sense an unwilling witness.

Complaint is made that the court erred in permitting Mrs. Jacobson to testify that the general reputation of the prosecutrix in the community where she resides was good, the witness having shown by her own evidence that she was not qualified to so testify. Timely objections were made to her testimony, but were overruled. This was 6 error. Mrs. Jacobson was the only witness whose evidence tended to show that the general reputation of the prosecutrix for truth in the community where she resided was good. Without her testimony the uncontradicted evidence showed that the reputation of the prosecutrix for truth and veracity was bad. On her direct examination the prose-cutrix testified, prior to the time when she first met the defendant, she had sexual intercourse with other parties. Later on in her testimony she asserted that the defendant was the person with whom she first had illicit relations. On cross-examination she was interrogated by the defense and answered as follows: “Q. You stated . . . that this defendant was the first m¡an that you had had anything to do with, so far as having sexual intercourse with him was concerned. You made a different statement from that in the lower court did you not? A. Yes, sir. Q. Who did you charge in the lower court as being the first man? A. Andrew Nelson. Q. You stated in the lower* court that Andrew Nelson was the first man that had had sexual intercourse with you ? A. Yes, sir. Q. And that you had known him about a year? A. Yes, sir.” After the defense had rested, and the evidence was practically all submitted, the prosecutrix was recalled by the prosecution, and was permitted to testify that, when she testified in the lower court that one Nelson was the first person who had sexual intercourse with her, she did not understand the question. Defendant objected to this evidence on the ground that it was not proper rebuttal, and, further, that the questions propounded to the prosecutrix by the district attorney on this point were leading. The objections were overruled. We think, under the peculiar facts of this case, this was error.

The prosecution of this case seems to have been conducted on the theory that the defendant was being sued for seduction as well as being tried for the adultery. When evidence was introduced on behalf of the state tending to show that the defendant had had adulterous intercourse with the prosecutrix as charged in the information, the prosecution then proceeded to introduce evidence to 7 show that she was first defiled by the defendant. In other words, that he was responsible for the ruin, downfall, and shame of a pure and innocent girl. This evidence did not tend to prove or disprove any fact material to any issue in the case. The only question for the jury to determine, was, Did the defendant, who was admitted to be a married man, have sexual intercourse with the prosecutrix at the time and place alleged in the information? The question as to whether the prosecutrix was first defiled by the defendant or some other person was not germane to any issue in the case, and was therefore wholly immaterial and should have been excluded. That this evidence had its effect on the jury and was prejudicial to the defendant hardly admits of a doubt. This we think is shown by the remarks of the court to the defendant at the time judgment was pronounced. The court said: “This is one of the most serious cases of the kind that has come before the court for a long time owing to the youth of the girl. From her testimony the jury believed that yon were the father of her rain.” We do not refer to these remarks in a spirit of criticism, but merely to invite attention to the importance that the state attached to this phase of the proceedings, and the prejudicial effect the evidence in question must have had on the jury.

There are other errors assigned which are based on certain rulings of the court, but as no exceptions were taken to the rulings and in some instances no objections made thereto, we cannot consider them.

The judgment is reversed and the cause remanded, with directions to the trial court to grant a new trial.

FEIGN, C. J., and STEAUP, J.,.concur.