State v. Winget

310 P.2d 738, 6 Utah 2d 243, 1957 Utah LEXIS 138

Opinions

HENRIOD, Justice.

Appeal from a rape conviction. Reversed and a new trial granted.

Defendant’s 8 year old daughter by a wife who divorced him in 1952, went to visit with him on a Sunday in September, 1956. T.he next day, after experiencing some hemorrhaging, she told her mother that the defendant had raped her. Over the objection of counsel, a 17 year old stepdaughter of the accused was permitted to relate 4 incidents when defendant raped her while he was married to the witness’ mother, — one 8 and 7 years before and twice 4 years before, the first such incident occurring, so she said, when she was 8 or 9 years old, and the last when she was 12, all being similarly patterned.

The sole question confronting us is whether evidence of other similar sex acts with persons other than the complaining witness is admissible. Unless we were inclined to reverse our own decision in the strikingly similar case of State v. Williams, 36 Utah 273, 103 P. 250, — which we feel constrained not to do, such evidence is inadmissible in this state.

The Williams case has been cited with approval by respectable authority,¹ and represents the majority view.² The respondent did not discuss the case in its brief, and its argument that the other offenses were admissible as showing a scheme or plan, or a lustful disposition can be no more than a plea for the adoption of the minority rule.

The A.L.R. citation and the Lovely case, with the wealth of authorities and reasons therein catalogued make it unnecessary for us to repeat or paraphrase here the reasons for the rule.

McDonough, c. j., and crockett and WORTHEN, JJ., concur.

Footnotes

1

. Lovely v. U. S., 4 Cir., 169 F.2d 386, and authorities therein cited; 167 A.L.R. 588.

2

. 167 A.L.R. 588.