State v. James

89 P. 460, 32 Utah 152, 1907 Utah LEXIS 27

Opinion

McCABTY, C. J.

(after stating the facts). The section of the statute (section 4211, Rev. St. 1898) creating and defining the offense of which the defendant stands convicted, so far as material here, reads as follows:

“If any person related to another person within and not including the fourth degree of consanguinity, computed according to the rules of the civil law, shall marry or cohabit with, or have sexual intercourse with, such other so related person, knowing her or him to he within said degree of relationship, the person so offending shall he deemed guilty of incest.”

It is contended that the information is fatally defective, in that it does not allege that the appellant, William J. J ames, and the complaining witness, Isabell James, are related by consanguinity. It is conceded that an act of sexual intercourse between niece and uncle, when the accused is cognizant of the relationship existing between them, comes clearly within the prohibitive provisions of the statute. The allegation in the information that the defendant had sexual intercourse with his niece, knowing her to be of such relationship-, is, we think, a compliance with section 4732, Rev. St. 1898, which in part, provides that “the information .... must he direct and certain as it regards (1) the party charged, (2) the offense charged.” The words “within and not including the fourth degree of consanguinity,” etc., are descriptive of the class of persons who are prohibited from marrying, cohabiting, or having sexual intercourse with each other, and are evidently intended to group together all of the different degrees of relationship to which the statute applies, and thereby to avoid the necessity of specifically enumerating them. (Hicks v. People, 10 Mich. 395; People v. Kaiser, 119 Cal. 456, 51 Pac. 702; Bergen v. People, 17 Ill. 426, 65 Am. Dec. 672.)

The next assignment is based on' the ruling of the court in refusing to strike out certain testimony. It appears from the record that Albert Law, the person who swore to the complaint upon which the defendant was held by the committing magistrate, testified as a witness for the state. -On cross-examination, defendant’s counsel, evidently to prove the interest the witness had taken in the prosecution of the case, and as tending to show his bias against defendant, invited Law’s attention to the fact that in the complaint filed with the magistrate the crime is alleged as having been committed on September 20th, and asked him the following question. “And yon swore to that fact?” The-'witness answered : “I certainly did, and I certainly think thatthissame crime was committed on that same day.” Defendant moved to strike out the answer, on the ground that it was not responsive. The court denied the motion. The motion to strike out should have been granted as to that part of the answer wherein the witness said, “And I certainly think that this crime [referring to the crime for which defendant was be ing tried] was commited on that same day.” This part of ¡.he answer was not responsive to the question asked, neither was it a statement of fact, but only the conclusion or mere belief of the witness. We are of the opinion that the latter paid of the answer could not have been other than prejudical. For the jury, under the circumstances, might well have believed that it was their duty to consider the answer as substantive evidence tending to establish the guilt of defendant, The witness Law was not an eyewitness to, nor did he have any personal knowledge. respecting, the circumstances surrounding the alleged commission of any incestuous act of the defend • .ant. It is an elementary, as well as a fundamental, principle of our jurisprudence, that persons accused of crime can only be convicted upon legal evidence, and not upon the mere beliefs of persons who may be called as witnesses. This rule is so well established, and has seen so universally adhered to, that we deem it unecessary to cite authorities in support of it.

It is conceded that, under the facts and circumstances of this case, as testified to by the witnesses, the jury might well have found that Isabell James was an accomplice; and the court, as part of its instructions on this branch of the case, read to the jury section 4862, Revised Statutes 1898, which provides that:

“A conviction shall not be had on the testimony of an accomplice, unless he is corroborated by other evidence which of 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.”

The court further charged the jury as follows: “(7) If you find from all the evidence in the case that the witness Isabell James was an accomplice with the defendant, William J ames, in the commission of the crime charged in the information, yet that fact, if it be a fact, does not make the witness Isabell James incompetent as a witness in the case.' A witness is not incompetent because he or she was an accomplice with the defendant on trial in the particular crime which is charged in the information, and, if the testimony of such, being duly corroborated, is believed by the jury, the defendant may be legally convicted upon it, Jjrom a consideration of all the evidenée in the case you believe the defendant guilty of the crime charged, beyond a reasonable doubt. (8) You are instructed that if you find from all the evidence in the case that the witness Isabell James was an accomplice in the commission of the crime with which the defendant is charged, yet, even if you so find, you are instructed that it is not necessary that the testimony of the accomplice should be corroborated in every circumstance that she details in evidence. The corroborating evidence need not be sufficient of itself to establish the guilt'of the defendant, but it must tend in some degree to connect the defendant with the commission of the offense charged. It may be slight and entitled to but little consideration; nevertheless, the requirements of the laux are fulfüled, if there be any corroborating evidence which of itself tends to connect the defendant with the commission of the offense charged in the information.” Appellant excepted to instruction No. 8, and now assigns the giving of it as error.

If the trial court, in connection with the balance of its charge to the jury, had given instruction No. 8 with the parts we have italicized omitted therefrom, no fault could be found with it, because No. 8, when so modified and given in connection with instruction No. 7 and section 4862, Rev. St. 1898, correctly states the law respecting the testimony of an accomplice, as well as the law requiring that such testimony shall be corroborated by other evidence which of itself and without the aid of the testimony of the accomplice tends to connect tbe defendant with the commission of the offense. The 'court, however, in giving that part of instruction No. 8 which we have italicized, invaded the province of the jury, and in effect instructed the jury as to the amount of evidence necessary to warrant a finding against the defendant on a material issue in the ease. For the jury might well have understood from the expression “in some degree,” as the same is used in the foregoing instruction, that if the testimony of the accomplice, provided they found Isabell James to be an accomplice, had been corroborated by any other evidence, the requirement of the statute was fulfilled, notwithstanding such corroborating evidence might be weak and very unsatisfactory to them. The court by instructing the jury that “any corroborating evidence,” “slight evidence,” “evidence entitled to but little consideration,” or evidence which “in some degree” tends to connect the defendant with the crime charged, is a sufficient corroboration of the testimony of an accomplice to warrant a conviction of the accused'on the testimony of such accomplice, not only invaded, as we have stated, the province of the jury, who are- the sole judges of the weight of the evidence, but minimized, if it did not practically remove, the protection which section 4862, Rev. St. 1898, is intended to give the defendant, and persons similarly situated, from being convicted on the uncorroborated evidence of an accomplice. The objectionable part of the instruction under consideration was evidently copied from the ease of State v. Spencer, 15 Utah 149, 49 Pac. 302. By an examination of that ease, it will be seen that the defendant was convicted mainly upon the testimony of Davis; who was an accomplice in the commission of the crime. On appeal, the defendant contended that the testimony of Davis was not corroborated by other evidence. This court held that the testimony of the accomplice, Davis, was sufficiently corroborated to answer the requirements of the statute; and, in disposing of that feature of the case, evidently intended to hold that, in criminal cases, where a conviction is procured mainly upon the testimony of an accomplice, the judgments will not be disturbed provided there be corroborative evidence “which of itself and without the aid of the testimony of the accomplice tends to connect the defendant with the commission of the offense,” even though in the opinion of the appellate court such corroborating evidence “may be slight and entitled to but little consideration.” In other words, it appearing from the record in that case that there was evidence which corroborated the testimony of the accomplice, Davis, and which without the aid of his testimony tended to connect the defendant with the crime charged, and the jury having so found, this court would not reverse the case, even though, as stated, it might deem the evidence on this point “slight,” and, in its opinion, “entitled to but little consideration.”

It is not the province of this court, in criminal cases, to weigh evidence and make findings, but to determine whether there is, in fact, evidence from which a fact might properly be found. When, in so doing it is said by the court that the evidence, though slight, is sufficient to support the finding complained of, it does not necessarily follow that the jury are authorized to find a fact which to them may appear to be only slightly supported by the evidence, or has alone for its basis evidence which they consider is entitled to but little con-si deration. What may appear to this court' but slight evidence, yet sufficient to support a finding, must, nevertheless, satisfy the jury of the existence of the fact found before they are warranted in making the finding. In other words, before they are warranted in making a finding, they must be satisfied, not that the finding might or could be made, but that the fact exists. To say to the jury that they may find such fact upon evidence which they do not believe to be true would be erroneous; and to say to them that they may make such finding on “slight evidence,” or on “evidence entitled to but little consideration,” as was done in the case at bar, is also bad, though not so glaring.

The case is reversed, with directions to the trial court to grant a new trial.

STRAUP and FRICK, JJ., concur.